Franceschi v. Marino — 3 Edw. Ch. 586

Majority

p. 586

Franceschi v. Marino.

July 13, 1842.

Headnote

'—v—. Practice. A™.^Exe'at

A bond, given On the issuing of a 'ne exeat, was lost; anda decree had been entered against the defendant: Held, that a suit at law might be had as on a lost bond ,* that there was no occasion for the sureties to file a new bond ; and that the court would not require such sureties either to pay the amount of the decree or bond forthwith or to bring into court any securities which might have been deposited with them by the defendant.

A writ of ne exeat had been issued against the defendant ■ Louis Marino; and he had been held to bail on it in five thousand dollars. His sureties were George Hussey and William ^Lac^ay‘ On mo^on> the amount of bail was reduced to two thousand five hundred dollars and the same sureties as above executed another bond to abide the decree.

A decree had been obtained against the said defendant, whereby he was adjudged to pay to the complainant two thousand three hundred and twenty-six dollars and thirty-three cents.

On diligent search, the bond given in the matter of the ne exeat could not be found ; and it was believed to be lost.

The above facts were set forth in a petition made by the complainant; as well as that he had been informed and believed and always understood that the said defendant Louis Marino had placed in the hands of some of his agents or sureties in New York a large amount of money at the time of his arrest to protect or indemnify them against any loss or damage that they might sustain by reason of their becoming such bail and he had reason to believe and did believe that the same was placed in the hands of Hussey and Mackay or put under their control in some manner. And the petitioner prayed that the0 said Hussey and Mackay might be compelled, by an order of the court, to answer whether they did not become such sureties and say as to what became of the bond ; and whether they had not funds of the said Louis Marino in their hands or under their control; and might be compelled to pay the amount of

p. 587

the decree so rendered in favor of the petitioner or be ordered to make, file and execute another bond—or further relief.

The matter of the above petition came up on motion ; and at the same time the petitioner, the complainant, gave notice of a motion (founded on similar matter embraced in affidavits) that George Hussey and William Mackay the sureties and Joseph Avezzana, the agent of the said defendant, be ordered to bring and pay into court or pay to the said complainant all money, securities, bills, bonds, drafts and effects of every name, nature and kind which had been left with or delivered over to them by the said defendant to indemnify them as security or otherwise in this cause.

Mr. Russel, for the motion.

Mr. Cutting, contra.

The sureties against whom these motions are pressed are not parties before the court; and even on that account I cannot go the length the complainant asks in his petition.

As the giving of the bond is not disputed and though it does seem to be lost, there can be no difficulty in the complainant’s suing at law as on a lost bond.

It certainly will never do, in this stage of the matter, to require the sureties to pay the face of the bond into court; nor do I see how the court can, in this summary way, reach any property deposited, by way of indemnity, with the sureties.

Nor can there be a necessity to require these sureties to file a new bond : inasmuch as the old one can be declared on as a lost bond.

The observations I have made show that the other motion, to oblige the sureties and agent of the defendant to bring into court whatever property may have been left with them, cannot be granted. Such property may be reached by a creditor’s bill founded upon the decree and the issuing and return of a fi. fa. unsatisfied against the defendant Marino, but not by this collateral proceeding.

Let an order be entered that the complainants have leave to sue at law on the bond given by the defendant and Hussey and

p. 588

Mack ay as sureties and to declare upon it as a lost bond. The complainant can have costs on his petition as against the de r , - , . , . , . iendant Marino ; but, on tue other motion, he must pay costs.