Stewart v. Stone , 3 G. & J. 510 ( 1832 )

Martin, J.,

delivered the opinion of the court.

We think the chancellor was correct in dismissing the bill in this case. In forming this opinion, this court have not taken into consideration, what is deemed the merits of the case, the deed, the ante-nuptial contract, the fraud, and, the undue preference, &c. We think that the complainant has not shewed himself entitled, to bring those questions before the chancellor. He has alleged in the bill, that he is the permanent trustee of Samuel Stone, and as such, has given the bond required by law. To clothe him with the authority he claims in his representative character, this allegation ought to have been admitted by the defendants, or established by other evidence. The record contains no other evidence upon this subject. The answer of Samuel Stone admits that complainant was appointed his permanent trustee, and gave bond as such trustee, &c.; but this answer cannot be used against Barbara Stone, the party interested in the deed. It is an established principle of evidence, that the answer of one defendant cannot be received in evidence against a co-defendant. If the complainant wishes to establish a fact by the evidence of a co-defendant, he may be examined as a witness on interrogatories, which will afford the defendant an opportunity to cross-examine him. Barbara Stone, in her answer, says, she has been informed, that Samuel Stone hath made application for the benefit of the insolvent laws of Maryland, and that the complainant hath been appointed his permanent trustee, for the benefit of his creditors. If this is deemed an admission that the complainant was permanent trustee, yet she is entirely silent as to the bond. There is then, no legal testimony in this record, to shew that complainant ever did give a bond, with security, as required of him by law, as the permanent trustee of Samuel Stone: that this was necessary, before he went into chancery, see the case of Winchester, trustee of Williams vs. The Union Bank of Maryland, 2 Gill and Johns. 73, where the court say, the different insolvent laws of the State constitute one general systemj and must be construed together; and so construed, require a bond, with security, to be given before a trustee can act as such; without which, he cannot be invested with the character and rights of a trustee.

Under this view of the case, we think the bill ought to have been dismissed, but without prejudice, &/c. The complainant ought not to be precluded, if he has equity, from again presenting himself before the court; and to afford him that opportunity, we think it necessary to reverse the decree, but without costs, and to pass a new decree to dismiss the bill, without prejudice, fyc.

DECREE REVERSED.