#### SAMUEL FLOYD AND OTHERS *against*JOHN B. GILLIAM, *Adm’r*AND ANOTHER.

Where a bond was taken from a trustee under an order of the Court of Equity, payable to the clerk and master, conditioned for the performance of the trust, it was *held*that the representative of the *cestui qui trust*had no right to sue on such bond without the leave of the Court of Equity, and that where such unauthorised suit had been begun, the Court would enjoin it until an account of the trust could be taken.

Cause removed from the Court of Equity of Eertie county.

At the Fall Term, 1851, of the Court of Equity for Bertie,' Samuel Floyd was appointed a trustee to perform certain trusts declared by the said Court in behalf of one Charles P. Sidles, growing out of a deed theretofore made between said Sidles and James Allen, and he gave bond in the sum of $4000, with the other plaintiffs in this cause as his sureties, payable to the clerk and master in equity of the said county, conditioned faithfully to perform the said trusts. Sidles died in the year 1851; up to which time the trustee had acted in the said trust, hiring out negroes, receiving hires, collecting and disbursing funds, and taking care of the person of Sidles, who was quite infirm. The defendant, Gilliam, having been appointed administrator of the estate of Skiles, without any ■order or leave from the Court of Equity of Bertie, brought suit on the said bond, and it was to enjoin the continuance of this suit that the bill in this case is filed. The plaintiff submits, and prays that an account of the trust may be taken in this Court, and avers that he is fully able to pay whatever sum may be decreed against him, and he insists until he fails to pay and satisfy the decree of the Court, the defendants may be compelled to abstain from urging the suit which they have instituted in the Court of Law.

There is in the answer no material denial of the facts as above stated, but the defendants say that Henry Skiles, a son of the said *cestui qui tiusi,*is by .the deed set out in the plead*184ings, interested in the fund therein created, and insists that he should have been made a party to this suit.

The cause was heard on bill and answer.

No counsel appeared for the plaintiff in this Court.

Winston, *Jr.,*for the defendant.

MaNly, J.

The bond of the trustee, Eloyd, taken by the Court of Equity for Bertie, was a paper of a cause in that Court, and under its control. It was taken on the occasion of Eloyd’s appointment to the trust of.Skiles’s estate, made payable to the master, and could only be used by Skiles, or one claiming through him, by leave of the Court. The instrument was designed by the Court as a means of enabling it to enforce the execution of the trust, and should be-retained, according to usage, as a security for any sum judicially ascertained to be due from the trustee to this fund. Hence, it was improper for the master to allow the representative of Skiles, upon his own motion, to *take*control of the bond, as of a bond payable to, his intestate, and sue upon the same. It should have been retained by him subject to the purposes intended, under the control of the Court.

We are of opinion, therefore, upon the filing of the bill by the trustee for an account, it was proper to suspend the prosecution of the suit at law, until the account were'taken; when, if a balance should be found due *tq*the administrator, the action on the bond could be resorted to for securing its payment.

We do not impugn the general principle heretofore adopted by our courts, of not staying the *tried*at law, but only the *execution*after judgment. The case before us is excepted from the operation of that principle, by the character of the suit, and the instrument sued on. The bond belongs to the office of the Court of Equity, and,] is under the control of the Court. The Court, therefore, has the power, and ought to have forbid its use whenever the occasion or object is disapproved.

The bill in equity is so manifestly the most appropriate and *185adequate means of having a settlement of a trust estate, that we think the Court entirely j ustified in declining to allow the bond and an action upon it at law, to be used, primarily, for such a purpose. The bond ought to have been regarded only as a security for an ascertained balance. This view steers clear of any conflict with the case of *Williams*v. *Sadler,*4 Jones’ Eq. 378, which has been called to our attention. Ours is-not the case of a party litigating a matter both at law and in equity, through rights of proceeding equally open to him. The action at law is upon an office instrument which could not be properly put in suit without leave, and for which leave ought not to have been given in the case in question.

The objection to the bill for the want of a necessary party defendant, viz: Henry Skiles, son of the *eestid qyd trust,*we think is untenable. *He*is sufficiently represented by the administrator Gilliam.

The equity of the bill for an account is unquestionable, and an account should, accordingly, be ordered. In the mean time, the injunction upon the suit at law should be continued' until further order.

Pee OueiaM, Decree for an injunction and account.