Moore v. Gleaton , 23 Ga. 142 ( 1857 )

By the Court —

Lumpkin J.

delivering the opinion.

Is there equity in this bill ?

The heirs of the complainant’s father-in-law, six in number, get together and agree to distribute the estate without incurring the expense of an administration. Gleaton is entitled to one share in right of his wife, and he purchased the share of Palmer, who married another distributee. A part of these shares is paid him ; and he files this bill to receive the residue.

It is objected that the rest of the heirs should be made parties. Why so ? any more than in a suit against an administrator ? It is said that Palmer’s wife being dead, her husband had no right to convey her interest. The reply to this is two-fold. He is the heir of his wife, and as such is entitled to her portion. True, at law he could only recover it through an administration. Here the parties are in equity. But in the second place, when this agreement to divide was entered into, it amounted to a reduction to possession of each one’s share. Again it is argued that Gleaton has a common law remedy. It will not be pretended however, that it is so complete, even if it could be made available at all.

In the next place, it is insisted that the ne exeat should be dismissed, because the affidavit is insufficient. All that is necessary is, that the affidavit should be positive as to the defendant’s intention to go abroad. 3. Daniel’s Ch. Pr. 1039. And this affidavit is so. It is true, that as to his preparation and threats, the complainant swears, as to his information and belief. But as to his intention to leave, he swears positively, according to our interpretation of his oath. And that lie is in danger of losing the whole or some part of his debt, unless this writ is granted. And after all, why should an affidavit to obtain bail in equity, be more stringent than at common law ?

Lastly it is argued that no bond was given, as required by the Act of March 1856, to respond to the defendant, by reason of the issuing of this ne exeat. No such ground was taken in the Court below. Non constat, but that the bond was duly taken and filed in the Clerk’s office.

Judgment affirmed.