State ex rel. Williams v. Williams , 3 Md. 163 ( 1852 )

Mason, J.,

delivered the opinión of this court.

It is conceded by counsel upon both sides, that the only matter now before this court upon appeal is the overruling of the appellant’s demurrer to the third rejoinder of the appellee.

The demurrer to the rejoinder aforesaid presents this question for the determination of this court, namely, whether a creditor of an insolvent debtor can maintain an action upon the trustee’s bond for alleged misconduct, neglect or fraud in the administration of the insolvent’s estate, while proceedings are pending before the proper tribunal for the purpose of ascertaining and adjusting the claims of the different creditors to dividends from said estate, and especially the claim of the creditor suing upon the bond.- The rejoinder, which is admitted by the demurrer, states in substance, that the plaintiff, in pursuance of notice given to the creditors of the insolvent, had filed her claim in Harford county court, and that certain other creditors had excepted to said claim, alleging that it was barred by limitations, and that said exceptions were still pending when the present suit was instituted.

It cannot, be denied, that the proper and only tribunal to adjust the claims of creditors, inter sese, of an insolvent’s estate, was the county court of the county where the insolvent fried his petition for relief under the insolvent laws. This being true Harford county court had properly assumed jurisdiction over the subject matter of the estate of the insolvent, George Williams, and was, at the time of the institution of the present suit, adjudicating upon the claim, among others, of the appellant. It was competent for that tribunal, under the proceedings before it, to have decided that the appellant was no creditor at all of the insolvent. It is clear then, until this fact was determined, no suit could be maintained by her upon the trustee’s bond, as no one but a creditor could sue on the bond.

Whether the allegations contained in the present pleadings against the trustee' are' matters over which Harford county court could exercise' jurisdiction- under its general power to settle the insolvent’s estate, an'd if so, whether its jurisdiction would be exclusive, are questions- we do not feel ourselves called upon to decide'upon-the present appeal. We wish to be understood only as saying, that if a suit like the present, on a trustee’s bond, can be maintained at all, it cannot be in the present instance, because'we'think, for the reasons already assigned, the suit has b'een prematurely brought.

Judgment affirmed.