Scott v. State

Mason, J., delivered the opinion of the court. This is an action brought on a bond in which the appellant and George G. Belt, since dead, were sureties for a certain John Scott, also deceased, who was appointed trustee by Baltimore county court, to sell certain real estate. The plaintiff declared generally for the penalty in the bond, without assigning any breaches. The defendant pleaded general performance, to which the plaintiff filed his replication, setting forth the particular breaches of the condition of the bond of which he complained.

The appellant in his rejoinder to the plaintiff’s replication relies on four grounds of defence, as follows, viz: 1st. That he became security in the bond at the instance and request of the cestui que use, the present plaintiff. 2nd. That the trustee was appointed upon plaintiff’s recommendation and request. 3rd. That the said trustee at the time and before the account was stated and ratified by the auditor, was the solicitor of the plaintiff in relation to said claim.

And 4th. Payment. To the first three rejoinders the plaintiff demurred generally, which demurrer was sustained by the county court, and forms the ground of the present appeal The Court of Appeals concur with the county court in sustaining the plaintiff’s objections to the defendant’s rejoinder. Conceding, for the sake of argument, (which, inreality, we do not by any means intend to do,) that the fact that the defendant became the surety of the trustee at the instance and request of the plaintiff, was a good defence, it is clearly not available in an action at law, like the present, and upon that ground, if upon no other, the court was right in not recognising it as a bar to the plaintiff’s recovery in the present suit.

Nothing is more common and proper than that parties who ²⁸⁹ are interested in the settlement of an estate, should be consulted by the court in regard to the appointment of the officer upon whom is to devolve that settlement. We are therefore unable to conjecture any possible objection to the bond in question, growing out of the fact that the trustee was selected at the instance and request of the plaintiff, or how, from that fact it was to be inferred that no responsibility was to attach to the sureties in the bond as respects the plaintiff’s claim. In the third place this court is not prepared to say that where an individual, acting for another, in the two-fold character of solicitor and trustee receives money in the latter capacity, that it is by mere operation of law, eo instanti, transferred to his hands as solicitor.- Such a doctrine might be attended with the most serious results, and it needs no argument or illustration to show that it is unsupported by principle or authority. The cases cited in support of the proposition relate to the duties and obligations of attorneys to their clients, and the effect of a violation or disregard of those duties and obligations, and have no bearing whatever upon the question we are now considering.

That there are some cases, where such a result, as the one contended for in this case, is produced, cannot be denied; but all such cases depend upon their own special circumstances, and are to be regarded as rather the exception to the rule, than the rule itself. It is true as contended by the appellant, that in all cases arising upon demurrer, the court will mount up to the first material error in the pleadings, if there be any, and determine the case upon that error. It is urged that the first error in the pleadings in this case is in the declaration, in this, that neither the declaration, nor the bond therein set forth, disclose any facts showing that the cestui que use, who is the real plaintiff in this action, had any claim 'or interest in said bond at the time the suit was instituted : in other words that the declaration was defective because it did not set out the breaches in the condition of the bond, which constituted the basis of the action. ²⁹⁰ To recognise, at this time, such a proposition would be' to disturb a long and well established practice in this State directly the converse of the one now contended for. This step we are not prepared to take.

Although there is no decision in Maryland, which we have been able to discover, precisely controlling this point, yet the