Blue v. Sheppard

By the Court. Lumpkin, J., delivering the opinion. It is true this court has held that in eases of ne exeat the affidavit should be positive as to the intention or threats of the debtor to go beyond the jurisdiction of the court. The facts stated in fihe supplemental bill are charged as coming within the knowledge of the complainant, and we are not prepared to hold that the verification made .under these circumstances is not sufficient. But concede that the affidavit taken in connection with the allegations in the bill, is not sufficient: does not the objection come too late ? The bill was demurred to on the ground that it did not aver that the securities, upon the administration bond, were insolvent; and upon no other ground. Is it allowable to cut up a case in this way ? and at this distant day to object to the sufficiency of the 'affidavit — an objection which, if good at all, might [568] have been taken advantage of by the demurrer? We think not. Had the objection been made at the proper time, and sustained, the proceeding could have been amended while Sheppard was in the State. It comes too late. It is said that this is the first time the securities to the ne exeat bond could be heard. Not so. They act in privity with their principal, and must abide -by the consequences. Securities on the appeal might just as well claim the right to contest a judgment rendered against their principal when they are sought to be made chargeable with the recovery. They undertake for their principal in view of such liability; and they must abide the consequences whether they result from the neglect or misconduct of their principal. They are entitled at every stage of the proceeding by which they may be ultimately bound to be heard through their principal. It is their folly if they fail to avail themselves of this privilege. Judgment reversed.