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 *289are 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.
*290To 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 practice has so long prevailed without objection in any of our courts, that this mode of pleading may now be regarded as the settled law of the State.
In the case of Sasscer vs. Walker, 5 Gill and Johns., 102, the same state of pleadings existed as in the present case, though different questions arose out of it. The only reason to be assigned why the point raised in the present case, was not there raised and determined,, is because it is to be presumed the court could see no force in it. In that case like the present there was a demurrer to the rejoinder, and Chief Justice Buchanan commences his opinion by the inquiry, which is equally applicable to this case, “Which, then, committed the first fault in pleading, is an inquiry thrown upon us by the demurrer?”1 If the declaration had been defective, as is here contended it was, it is hardly to be supposed that the defect would have escaped the vigilant eye of the Chief Justice, especially as he started out with the avowed purpose of searching for defects if any existed.
The next and last point to be considered, relates to the manner in which the notice and demand upon the trustee, was averred in the replication. In the case of The State use of Oyster, vs. Annan, 1 Gill and Johns., 463, the mode of proceeding in a case'like the present, is set out at length and with great precision. That ease has so long controlled our practice in Maryland, in this particular, that we would be unwilling, even if we were at liberty, to disturb its provisions. It but remains for us to ascertain whether the requirements of that case have been literally or in spirit complied with in the proceedings now under review. The court think they have not been. In the case of Oyster vs. Annan, the rule is laid down in these words : “In the case of an order for distribution and payment, similar to this, to sustain the-plaintiff’s *291suit, it appears to us therefore, that he ought to aver and prove a service of the order on the trustee, and a demand of payment of the sum specified therein; and that without this notice so averred in the proceedings, an action on the trustee’s bond cannot be maintained.” Now what are the averments on this point, in the replication in the present case ? They are, “that the trustee having been frequently called upon by the said Jeremiah Ducker (the plaintiff,) for the amount of the audit aforesaid, was requested by the said Jeremiah, to pay the same as he was bound to do, but the said trustee refused,” &c. And it is also previously averred, that the auditor had stated an account, and that said account had been duly confirmed by the court.
This court thinks, that the gist of the law was disregarded in this, that it is no where averred in the proceedings that the trustee had notice of the account and its ratification, previous to the demand of the payment of the sum specified therein as due the plaintiff. It is not deemed necessary that each creditor, to lay the foundation of a suit, must serve on the trustee an authenticated copy of the auditor’s account and ratification thereof, and make formal demand of payment of the sum therein due him. It is enough, if the trustee has received the money and knows that the account has been audited and confirmed. In such a case a claimant can sue on the bond, immediately after he has made a demand for what is due him. But a mere demand of payment, before such a foundation for a demand has been laid, as is the present case, will not gratify the requirements of the law. Nor does the plaintiff’s averment in the present case, that he demanded payment of the amount of the audit, necessarily suggest even that any reference was made whatever, in the demand, to the existence of the auditor’s report. The amount may have been demanded, unaccompanied with any statement on what account it was claimed. In pleading, material facts must not be left to inference. The plaintiff’s averment being defective in this particular, he cannot recover without amending his pleadings. We will therefore remand the cause under a pro*292cedendo, under the authority of Neale vs. Clautice, 7 Har. & Johns., 372, Dorsey vs. Pannell, 4 G. & J., 471, and the case of Kennerly vs. Wilson, decided by the present .court, and reported, ante., 245.
Judgment reversed and, procedendo awarded.