Woods v. Symmes

By the Court.

Lumpkin, J.

delivering the opinion.

One Andrew Howell commenced an action of trover against Wm. Woods, the intestate of Elizabeth Woods, to recover some negroes; and sued out bail process, under the .statute. The complainants in the bill became securities for the defendant, in a bond of $3,000, for the forthcoming of the negroes, to answer to the recovery, should any be had. Wm. Woods, the defendant, died; and Elizabeth Woods administered upon his estate, and was made a party to the suit, which is still pending. This bill is filed by the securities, suggesting the foregoing facts; and that Elizabeth Woods is insolvent, as they are informed and believe; and praying that the writ of ne exeat may issue, and that said Elizabeth Woods may be compelled to secure the payment of the sum of money for which they are bound, or to deliver said negroes at the time and place mentioned in the original bond. And, the only allegation upon Avhich the writ of ne exeat is prayed, is, that the complainants “ are informed, and believe, that the negroes in contoversy will be removed beyond the jurisdictional limits of the State, leaving the complainants liable upon their said bond.” The jurat is in the ordinary form, of affidavits to bills in equity.

This proceeding is under the Act of 1813, (Cobb, 525,) which extends the remedy by ne exeat to a class of cases to which'it did not apply at common law, viz: to demands not due in certain cases; and in favor of co-obligors who are bound, for the payment of money, or the delivery of property at a future time. The preamble to the Act recites, that no provision-is made for co-obligors when a part of them remove, or are about removing without the jurisdictional limits of the State, without making satisfaction for the liability to be incurred, &c. And again, in the second section it declares, that securities shall have the benefit of this remedy, when the principal or either of the securities are about removing without the limits of the State, &c.

It is doubtful, under this statute, whether the party is entitled to this remedy upon an allegation merely, however strongly made, that the property will he removed, but without averring that the person designs removing.

But waiving this, and assuming that the Act is in the alternative, and that “ and” should be read “ or” in the second section, that the co-obligor is about to remove without the limits of the State, or is carrying off his property, still the allegation in the bill is defective. It states no fact; it simply affirms that the complainants are informed and believe that the property in dispute will be removed out of the State, so as not to be forthcoming to answer the judgment which may be recovered. Looking upon this Act as in the nature of equitable bail, perhaps the allegation might be tantamount to a positive averment, that the complainants are apprehensive of being made chargeable with the whole amount of their liability, or some part thereof, unless the writ of ne exeat do issue. The statement in this bill is hardly so broad as this. They state nothing of their own knowledge. Who gave them the information upon which their ^belief is founded, the bill does not disclose. No affidavit of the informant accompanies the bill. This bill may be amended, or a new one filed, with allegations sufficiently certain and issuable to be maintained. As it stands, it needs strengthening; especially as the Act of ISIS itself declares, that in all cases originating under it, the party complainant shall pursue the legal forms and course of law heretofore practiced in this State. It will hardly be contended, that the aliegation in this bill would be good at common law, and we hold it not good in this case, the liability being but contingent at most; and notwithstanding the alleged insolvency of Mrs. Elizabeth Woods, the administratrix, she must be presumed to have given sufficient security for the faithful administration of her husband’s estate. At any rate, if the security already given be inadequate, it can be made good, or she removed from her trust, and the property taken out of her custody.

Judgment reversed.