Sheppard v. Blue

By the Court.

Lumpkin J.

delivering the opinion.

There was a bill filed for an account by the heirs of Benton W. Dowd, deceased, against Samuel Sheppard, the administrator upon the estate. After the answer came in, a supplemental bill was filed, praying for the writ of ne exeat. In this last bill the complainants allege, that there is $3,000 due ihem by the administrator; that he has disposed of his real estate in Georgia, and is about removing to the State of Alabama. They expressly allege, in the supplemental bill, that they will lose the whole amount of their claim, unless the defendant is restrained from leaving the State.

Judge Worrill sanctioned the bill, and a ne exeat issued and was executed. A motion was made to dismiss the ne exeat, upon the ground that there was no averment in the bill, that the securities upon Sheppard’s administration bond were insolvent.

An allegation to this effect is not necessary. The complainants are entitled to all the security which the administration bond gave them; that of the principal as well as his bondsmen. It is explicitly charged, that if the principal be not restrained from going abroad, the claim will be lost. With the truth of this allegation we have nothing to do.

This is equitable bail. Suppose there be two parties severally bound as maker and surety upon a promissory note; an action is brought at law against the maker, and bail process is sued out — could the defendant dissolve the bail by alleging the solvency of the surety ? We apprehend not.

Is it clear that a Court of Equity would not let the principal go free, and thereby impose the liability upon the securities who, under the Act of 1813, are entitled to this very remedy against this principal ?

Judgment affirmed.