Hartness v. Purcell , 1 Wend. 303 ( 1828 )

By the Court,

Sutherland, J.

An executor may be holden to bail in case of a devastavit, but the facts disclosed here do not make out a devastavit. The refusal to apply the assets which had come to the hands of the defendant to the payment of the debts of the testator, does not amount to it. The debts are not yet established by judgment of law; there may be set offs, or the defendant may have a right to retain in satisfaction of a debt due to himself. The declaration of the intention of defendant to leave the country and not to return, is not enough to justify an order to hold to bail, and it may even be questionable, whether it would warrant the allowance of a ne exeat As to the indemnity of the bail, if a clear case had been shewn, the court might have sustained the order; the fact, however, is not satisfactorily shewn, and the defendant has not had an opportunity to answer in this respect. The motion is granted, but without costs.