Winchester v. Union Bank , 2 G. & J. 79 ( 1829 )

Buchanan, Ch. J.

delivered the opinion of the Court. This case is, in all respects, the same as that of Winchester, trustee of Williams, against the Union Bank, just decided, with this difference only; that here a bond, with security, appears to have been given by the trustee, but subsequent to the bringing of the suit, though before the trial. And it is contended, in addition to the several points raised and decided in that case, that the bond thus given, has such relation back, as to entitle the plaintiff to recover.

But this is not like the case of an executor, who derives all his interest from the will; and though probate is necessary to the authentication of his right, yet it is the will alone which gives it, and the probate is only the legitimate evidence of his title. He may, therefore, sue, but cannot declare before probate, for he cannot assert his right in Court, as an executor, without producing his letters testamentar y. It may, more properly, be assimilated to the case of an assignee of a bankrupt, who derives his title from the assignment, which divests the bankrupt of his personal property, and vests it in the assignee from the time of the bankruptcy; or in this particular, to the case of an administrator, who derives his title from his letters of administration, and cannot sue, or do any other act, before letters of administration granted, though when administration is granted, it vests the property in the administrator by relation, from the time of the death of the intestate.

So a trustee of an insolvent debtor derives his right from his appointment; and the insolvent laws requiring that he shall give bond, with security, for the faithful performance of his duty, before he acts as such; until such a bond is given, he is not invested with the functions of trustee, and can neither sue for, nor in any other manner intermeddle with the property of the insolvent. He is not, in contemplation of law, a trustee; his character as such is not completed, until the bond required, is given. The mere appointment, unaccompanied by his giving a bond, with security, confers upon him no power over the goods of the insolvent; but it is the bond, as constituting an ingredient in the appointment, and is the perfection of it, that gives him authority to act, and assert his rights in the character of trustee.

The bond, therefore, in this case, having been given after the suit was brought, the suit was instituted when the plaintiff was not clothed with any power to sue, or in any manner to interfere with the property of the insolvent, in the capacity of trustee, and c '.nnot be maintained.

JUDGMENT AFFIRMED.