McGehee v. Polk

Lumpkin, J. By the Court. delivering the opinion. A bill having been filed against the plaintiff in error in this case, as Executor of Jefferson Lamar, deceased, by the complainants, as the only legatees under the will of the testator, a writ of ne exeat was prayed for and granted. A motion was made to discharge the ne exeat, upon two grounds: 1st* Because the allegations in the bill were insufficient to authorize a ne exeat: and 2d. Because the bill was not properly verified. [410] [1.] The affidavit is in the usual form to bills in equity; namely, that “ the facts stated in the bill .as of the complainants’ own knowledge, are true; and the facts stated, as on the knowledge of others, they believe to be true.” The two objections then, resolve themselves into one, and that is, whether the facts charged in the bill as coming within the knowledge of the complainants, and their belief as to the truth of the facts, founded on the knowledge of others, are sufficient to entitle the complainants to the writ of ne ex-eat 2 [2.] I would remark that objection has been made to the form of the bond in this case; the conditions of which is, that the party “ shall not depart the State, or that he will pay the eventual condemnation money.” While we do not consider this point legitimately made upon the record, we may say, that the bond is in exact conformity to the act of 1830. {Cobb, 527.). The words of the statute are, “ in all cases where persons may be hereafter arrested, they shall be discharged on their giving bond with good and sufficient security, either that they will not depart the State, or for the payment of the eventual condemnation money.” By the English writ of ne exeat regno, the defendant was bound not to go beyond seas without leave of the Court. {Beames on ne exeat regno, pp. 18, 19.) The act of 1830 is a relaxation of the English law, in allowing an alternative, viz: to give bond for the eventual condemnation money. The law may, or may not be too rigorous. It is not in the power of the Courts to alter or mitigate it. [3.] It is contended that no sum is set forth in the bill, with sufficient certainty. The complainants attach the inventory and appraisement to the bill, state the various sales of property, and after setting forth details, as far as it was in their power to do, they claim between four and five hundred thousand dollars to be now due them, upon a fair accounting by the executor. If they cannot be more specific, the fault is [411] not theirs. The executor has made no return since 1842 ! And only an informal one then$ not verified nor approved by the Court of Ordinary. And when called on by the complainants to ascertain the balance coming to them, the executor replied, that he could not come within $40,000 of the amount! Surely the complainants will be excused from greater particularity under such circumstances. Indeed, under our legislation, if not before, certainty in this respect, is not indispensable. (McGehee vs. McGehee, 8 Ga. Rep. 299.) But even at common law, in bills for account and administration of assets, if there is a clear affidavit of assets received the Court will grant the writ of ne exeat. (Reames, 38.) (4.) But it is argued that a ne exeat will not lie in this case, because the Courts- in this State have no jurisdiction over the parties. If so the complainants are unfortunate, as they have 'no redress anywhere else. (See Story’s conflict of Law, p. 313land the authorities there cited; 13 Peters’ Rep. 1.) It is suggested, that the State of Alabama has passed an act repealing the doctrine of the common law in this respect, and allowing a foreign trustee to be sued in that State. It may be so; no evidence of the fact has been submitted to this Court. But suppose it be so. The will having been proven here and letters testamentary issued in this State, where all the parties lived, and where all the property was situated, will the Courts of this State surrender the jurisdiction which they have acquired over the person of this trustee and send the complainants to a foreign power ? By no means. No such cáse has been cited. None such, we presume, can be found, and if such a precedent could be produced, it would be against principle. The party undertook this trust in view of his accountability to the laws and tribunals of this State. He cannot, by his voluntary removal, transfer his liability elsewhere. The farthest that the Courts have gone is, that where foreigners meet in another State, of which neither are citizens, and un [412] dertake to enforce, by writ of ne exeat, a contract which was made with a view to its execution elsewhere, there they will be remitted to the place of its execution, for their remedy. (3 Johns. Ch. Rep. 74.) But this is not that case. On the contrary, this very authority in Johnson sustains fully the defendants in error, in the present proceeding. [5.] It is not necessary either in a case like this, for the bill to allege that the complainants apprehend loss, although this is done; it is enough thát it is distinctly stated in connection with the other facts, that the defendant resides out of the State. Danger of loss will be inferred from this fact. Still the jurisdiction does not rest upon that ground, but upon all the circumstances to which I have heretofore adverted. We hold that the Court was clearly right in refusing to discharge the writ of ne exeat. Judgment affirmed.