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444 HIGH COURT OF CHANCERY. bends his assets will be distributed among irresponsible repre- sentatives, before those entitled to the proceeds of the property sold by him as trustee, shall claim or sue therefor, and that the complainant as his surety, will thus be exposed to great pedl of loss. Upon this statement of facts, the bill prays, that the executors may account, and that they be decreed to pay over to the trustees subsequently appointed, the amount re- ceived by their testator, as trustee under the aforesaid decree, and for further relief. That portion of the prayer for relief, which calls upon the defendants to pay the money to the new trustees, is, however, abandoned, in consequence of the admis- sion already adverted to, that they had not given bond or taken upon themselves the execution of the trust. If, therefore, the complainants are entitled to any relief, they must get it under the general prayer. The answer to this bill, after admitting the proceedings in the former cause, and the receipt of the money by the trustee, Durkee, avers, that he did account for and pay over the same to the parties entitled, and the defendants deny that he did ap- propriate the proceeds of sale, or any part thereof, except his commissions, to his own use. They aver, that no claim has been presented on account of said trust by any of the parties entitled to the proceeds of the sale made by their testator, and that they have paid all his debts, and are ready to close and settle their trust in the Orphans' Court, as required by their du- ty as executors. There can be no doubt of the right of a surety, after a debt has became due, to file a bill to compel the principal debtor to pay, whether the surety has himself been sued or not, upon the principle established at a very early period "that it is unreason- able that a man should always have such a cloud hanging over him." Ranelaugh vs. Bays, 1 Vernon, 190. And as remarked by Chancellor Kent, in Bays vs. Ward, 4 Johns. Ch. Rep., 132, "it is now considered as a settled rule, that a party may resort to chancery if he apprehends danger from the creditor's delay, and compel the creditor to sue the principal debtor, though prob- ably he must indemnify the creditor against the consequences |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
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