By the Court.
Nisbet, J.,
delivering the opinion.
[1.] The demurrer was sustained, on the single ground, that the bill does not charge the insolvency of the trustee. This is not the case of a cestui que trust, the legal estate in whose property, is in the hands of a trustee, seeking to collect in a debt, or interest due, or belonging to the trust estate, over the head of the trustee. The bill charges a tortuous taking and disposition to his use, of the trust property, by the trustee, in fraudulent confederacy and combination with a third person.— And it avers, that the trustee had been requested to sue for and recover from that third pei’son, the value of the property and its hire, and that he refused so to do; and that he had been requested to permit the complainants, who aro the cestui qua [347]*347trusts, to use his name for that purpose; which he had declined to do. It is filed against the trustee and his confederate, for an account, &c. The averment of his insolvency, in such a ease, was unnecessary. He is liable in Equity, having repudiated the trust to the complainants. The charge of confederacy and fraudulent combination makes both defendants liable.
[2.] They are jointly liable; and being so liable, are jointly suable in Equity, in the county of the residence of either.— This is the whole of the case made in the record; although other points were ingeniously argued by counsel.
Let the judgment be reversed.
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