Justices of the Inferior Court ex rel. Davis v. Hemphill , 9 Ga. 65 ( 1850 )

By the Court.

Nisbet, J.

delivering the opinion.

We have determined that the liability of the surety, on a guardian’s, executor’s and administrator’s bond, is ultimate, and that no recovery can be had against him, until there is a judgment or decree of a Court of competent jurisdiction against the principal in his representative character. Our Act of 1820, authorizing principals and sureties on such bonds to be sued in the same action, does not dispense with this judgment or decree. When that is had, it authorizes suit against the principal in his individual character, and the surety or sureties in the same action; but there, the principal must be first sued, or must be joined in the action with the surety, if he is within the limits of the State. That is, the surety cannot be proceeded against alone in but one instance, and that is, when the principal is not within the limits of the State. 6 Geo. R. 31.

It is claimed in this case, that the principal being dead and insolvent, and no administration on his estate, and those facts being averred in the declaration, the plaintiff may proceed at law. to charge the sureties, although no judgment or decree has been had against him in his representative character, and although he has not been personally sued to insolvency, and is not a party to the action. This, clearly, cannot be done upon Common Law principles. In such a case, a Court of Common Law has no jurisdiction. The sureties are not liable there at all until, by judgment or decree, their principal has been charged with a devastavit, and sued personally to insolvency. Nor does the Act of 1820 help the plaintiff. Since that Act, the judgment or decree against the principal, in his representative character, is still indispensable ; and moreover, by the Act, he must be first sued, or must be joined with the surety, if within the State. There is relief for the plaintiff in Chancery. The necessity of the case, and its manifest equity, gives jurisdiction to Chancery. The law, by reason of its universality, affords no relief; therefore, Chancery will grant it. So this Court has held. 7 Geo. R. 552.

[1.] Our Statute, however, we think, has repealed the Common Law in this regard, and in the case made, has given jurisdiction to a Court of Law, concurrent with the jurisdiction of a Court of Equity. Our judgment is, that the plaintiff has his option to proceed at law, if he conceives that he can establish his claim ivithout .resorting to the conscience of the defendant, or go into Chancery. He elects at his peril. If he resorts to' a Court of Law, he must abide the forms of proceeding — the law and the relief of that forum. The Statute, injudiciously, as I think and have before said, gives him the right, if, in his imaginings, he conceives that he can get along, to make experiments in a Court of Law. He takes the play at the hazard of having the piper to pay. The rule is, if a parfy has an ample remedy at law, he cannot go into Chancery; and if he can go into Chancery, nevertheless, he can go into law, if he will. It is paradoxical, rather. We cannot, however, get over the broad grant of jurisdiction to a Court of Law, by the Act of 1820. That is an Act declaratory of the 53d sec. of the Judiciary Act of 1799. That section specifies the cases in which the Superior Courts shall exercise the powers of a Court of Equity. The enumeration embraces many of the powers of the Courts of Chancery in England. We have held, however, that the jurisdiction is not confined to the enumeration of powers specifically made, but by virtue of our adopting Statute, and authority given to exercise the powers of a Court of Chancery, “ in all cases where a Common Law remedy is not adequate,” general Equity jurisdiction is conferred. 4 Geo. R. 423. The specification of the Act of 1799, of cases in which the powers of a Court of Chancery shall be exercised, are — 1st. To discover transactions between copartners and co-executors. 2d. To compel distribution of intestates’ estates, and payment of legacies. 3d. To discover fraudulent transactions, for the benefit of creditors. In addition to these, there is, as before stated, a broad grant of authority to exercise the powers of a Court of Chancery, “in all cases where a Common Law remedy is not adequate■ to compel parties, in any cause, to discover, on oath, all requisite points necessary to the investigation of truth and justice.” Prince, 447. Now, although the last quoted clause is general, and embraces all cases belonging to a class, that is to say, all cases where a Common Law remedy is not adequate, yet it is an enumeration of cases. It differs from the other enumerations, only in this — that it is more comprehensive. It is not much more generic in its character than some of them; for example, that which gives power to compel distribution of intestates’ estates and payment of legacies, which confers jurisdiction over the whole subject of intestacies and wills, Now, the General Assembly of 1820, legislating upon this clause of the Act of 1799, and the subject matters therein embraced, have said, “that from and after the passage of this Act, whenever, in any of the cases enumerated in the before recited section, (having before recited it,) a plaintiff or complainant shall conceive that he, she or they can establish his, her or their claim, without resorting to the conscience of the defendant, it shall and may be lawful for any such plaintiff or complainant to institute his, her or their action on the Common Law side of the Court, and shall not be held to proceed with the forms of Equity.”

The case made in this record, is a case where the Common Law not only affords no adequate remedy, but no remedy at all. It is, therefore, palpably a case enumerated in the Act of 1799, and by the Act of 1820, one of the cases where the plaintiff shall not be held to the forms of Equity; but if he conceives that he can make out his case without resorting to the conscience of the defendant, shall be at liberty to institute his suit on the Common Law side of the Court. Prince, 447. This is too plain to require further comment.

[2.] The Legislature;, whilst conceding jurisdiction to the Courts of Chancery in this ease, have said that the plaintiff shall not be driven there, but may go into a Court of Law. Whether he will go into the one Court or the other, the Legislature has left to his conception of the sufficiency of his remedy. Where the Legislature has placed the plaintiff, there we also locate and leave him.

Let the judgment be reversed.