Majority
p. 393Harris, sheriff, &c. vs. Hardy and others, impleaded with Gage.
Headnote
Although a bond given on the arrest of a defendant upon a me exeat cannot bo prosecuted without the sanction of the court of chancery, yet an irregularity in this respect can be objected only on motion to set aside the proceedings; which should be made at the earliest opportunity after suit brought.In an action upon such bond, proof of a breach of the condition entitles the plaintiff to a verdict for the full amount of the penalty, without reference to the damages actually sustained.
Debt, tried at the Rensselaer circuit, in March, 1840, before Cushman, C. Judge. The action was by thé plaintiff, as sheriff of Essex county, on a joint and several bond executed by the defendants upon the arrest of Gage, in virtue of a ne exeat issued out of chancery in a suit by creditor’s bill wherein Gage was defendant and Webb & Averill complainants. The bond was in the penalty of $1200, dated June 6th, 1838, and contained the usual condition, viz. that Gage should not depart from the state without leave of the court of chancery. The declaration assigned as a breach of the bond, that Gage had departed from and remained out of the state, without leave, &c., so that the process of the court of chancery in the said suit could not be served on him. In addition to a plea of non est factum,, the defendants pleaded specially, among other things, that no process had been issued in the chancery suit against Gage which had not been duly served on him. The plaintiff took issue upon this allegation. On the trial, after proof of the execution of the bond, it was shown on the part of the plaintiff that a summons had been issued in the chancery suit requiring Gage to appear before a master, but that it could not be served on him in consequence of his absence from the state. Upon this evidence the plaintiff claimed a verdict for the full amount of the penalty of the bond. The chancery suit was commenced by the filing of a creditor’s bill; and the present defendants offered to prove that when Gage left the state he
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p. 394insisted, in addition to the points taken at the trial, that the suit could not be sustained without averring and proving an ordereof the court of chancery authorizing it.
was utterly insolvent, and had so continued ever since. This evidence was objected to, and excluded. The defendants then offered to show that since the execution of the bond in question, the complainants in the chancery suit had collected some $300 of their judgment against Gage. The plaintiff objected to the evidence, and the judge decided that it -was inadmissible under the pleadings. The defendants’ counsel requested the judge to charge the jury that the plaintiff was only entitled to a verdict for such damages as he had actually sustained in consequence of the absence of Gage, and that these were merely nominal. The judge refused to charge as requested, and directed the jury to find in favor of the plaintiff for the whole penalty of the bond. A verdict having been rendered accordingly, the defendants now moved for a new trial on a case,
A. C. Hand, for the defendants,
S. Stevens, for the plaintiff.
It is too late to raise the objection that this suit was commenced without the sanction of the court of chancery. No doubt the objection would have been fatal, on a motion to set aside the proceedings, which should have been made at the earliest opportunity after suit brought; and, I presume, the chancellor would have restrained the plaintiff from proceeding in the action, if application had been made to him.
On issuing a writ of ne exeat, the court of chancery directs the sum for which the officer is required to take security, which is always marked on the writ. (2 Madd. Ch. Pr. 230 ; and see Evans v. Evans, 1 Ves. Jr. 96 ; Shafioe v. Shaftoe, 7 id. 171.) If the defendant leave the state without permission, an order will be granted directing his sureties to nay the money
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into court, or, in default thereof, that a suit be brought upon the bond. (Musgrave v. Medex, 1 Meriv. 49 ; Utten v. Utten, id. 51 ; 2 Madd. Ch. Pr. 230.) The writ will be discharged, on paying into court the sum for which it is marked, (id.,) and upon giving security to abide by the decree. (Atkinson v. Leonard, 3 Brown’s Ch. Rep. 218 ; Howden v. Rogers, 1 Ves. § Bea. 133.) The fund is under the control of the court of chancery, and will be disposed of with due regard to the rights of all parties concerned. This court does not enter into the question, or undertake to settle the amount for which the sureties should be held liable upon the bond. The sum for which the writ is marked and the bond given, is conclusive in the suit at law, having been ascertained and fixed by the court of chancery before the issuing of the ne exeat. We do do not revise that determination ; but hold the sureties liable for the whole debt. When the proceedings in chancery are closed, the fund is there applied to the payment of the amount decreed; and whatever balance may remain, is paid over to the proper parties. The cause was properly disposed of at the circuit, and the motion for a new trial should therefore be denied.
New trial denied,