Thruston v. Blackiston

Stewart, J., delivered the opinion of the Court. There are two questions involved in the case — -the one, as to the jurisdiction of the Court of Equity, over the sureties on the bond of the trustee, and the other, as to the effect of the plea of limitation. There is no doubt'as to the duty of the administrator of the deceased trustee to render an account of the trust. No error is shown in the proceedings resorted to, for the purpose of ascertaining the liability on the bond of the trustee.

See Dent vs. Maddox, 4 Md., 522 . It is well settled, by numerous decisions in the State, that ■ the jurisdiction of a Court of Equity will embrace this case, where the trustee has died, without the completion of the trust, and the ascertainment of his indebtedness. See Oyster vs. Annan, 1 G. & J., 450 ; Brooks vs. Brooke, 12 G. & J., 306 ; Scott vs. State, 2 Md., 284 ; Dent vs. Maddox, 4 Md., 522 ; State, &c., vs. Mayugh & Bell, 13 Md., 371 ; State, use of Boteler, vs. Digges, et al., 21 Md., 240 . Nor does the Act of Limitation afford any bar to the relief sought by the bill. “ The debt or thing in action ” — the sum found to be due by the trustee, from the proceedings in the cause — has not been standing twelve years.

Where relief is sought in a Court of- Equity, it is an ordinary rule of that Court that the cause of action or suit arises ⁵⁰⁹ as soon as the party has a right to apply for relief. Story’s Eq. Jur., sec. 1521. The Act of 1715, chap. 23, sec. 6, which is substantially incorporated into the Code, Article 57, sec. 3, together with the Act of 1729, ch. 24, sec. 21, does not admit of the construction insisted upon by the appellants.

The language of the 21st section of the Act of 1729, chap. 24, in reference to testamentary and administration bonds, is very different from the terms of the 6th section of the Act of 1715, chap. 23, applicable to other bonds and specialties, generally. There had been some question, whether the Act of 1715, chap. 23, see. 6, applied to testamentary and administration bonds, and the 21st section of the Act of 1729, chap. 24, was enacted to embrace them. That section declares “that all actions upon administration and testamentary bonds shall be commenced within twelve years after the passing of the said bonds.” This clearly and expressly confines the right of action within twelve years from the passing of the bonds. But the 6th section of the Act of 1715, ch. 23, provides that no bond shall be good and pleadable, or admitted in evidence, after the principal debtor and creditor have been both dead twelve years, “or the debt, or thing