Osborn v. Ordinary of Harris County ex rel. Huey

By the Court.

Lumpkin, J.

delivering the opinion.

According to the case made by the bill, had the complainants a complete remedy at Law ?

[1.] The rule now well settled in this State is, that in reference to partitions, the establishment of lost papers, the foreclosure of mortgages, the settlement of accounts, &c. that notwithstanding, by the English law, as adopted here, Chancery may have had concurrent or even exclusive jurisdiction over these or any other subject, still, if full rédress has beén provided by Statute, Equity, in that case, is ousted of its jurisdiction, unless a special case is made by the bill.

[2.] Now it is not denied, but that by the laws of this State, full provision is made for suits at law, on guardian’s, administrator’s and other trustee bonds. To this forum, then, these parties must resort, unless they have brought themselves within the exception just stated. Have they done So? We have searched in vain for any statement to this effect.

The non-residence of the guardian does not confer jurisdiction. So far as the question of jurisdiction is concerned, the residence or non-residence of the principal is wholly immaterial. What special case, then, is made by the bill ? It is not suggested that there is any complication in the accounts of the guardian, which cannot be adjusted at Law. No discovery, even, is sought of the non-resident guardian, who pro forma is made a party, and upon whom service is prayed to be perfect *125 ed by publication. Neither is any appeal made to the consciences of the securities to make disclosures.

It is true that the bill alleges that the principal, when about to leave the State, placed in the hands of his securities some five thousand dollars, in money or property, “ to indemnify and save them harmless.” But the bill does not seek even to pursue this as a trust fund, set apart by the guardian for the discharge of his liability, nor is there any intimation that the securities are insolvent or any thing of that sort.

[3.] The only thing which seems to have been in the eye of the draftsman of the bill, which needed the aid of a Court of Equity, was the fact that this fund had been placed in the hands of the securities — the complainant not knowing the relative amount or portion received by each. Hence he asks for information upon that point, and insists, in the argument, that Equity, abhorring a multiplicity of suits, will entertain this bill, especially for the purpose of adjusting the rights of the several securities.

What has the complainant to do with this ? who constituted him the next friend of the securities ? The favor which he tenders is not only not solicited, but respectfully declined. And in our judgment, no Court has the right to thrust this boon upon the sureties nolens nolens, willing or unwilling. They know best — how best — to protect themselves. Were'it otherwise, and did this constitute a sufficient ground for the interposition of a Court of Equity, we are again met by the Act of 1826, which allows securities to come in and make special defence at the trial, and have a special verdict entered up, fixing their respective rights and responsibilities.

If one of the securities had received from their common principal funds to protect him against the whole or any part of his liability, that surety became a principal as to his co-sureties, fro tanto. And so, the verdict and judgment, under the Statute of 1826, would find and establish. And another surety paying the debt to the creditor, would be entitled to control the fi. fa. to re-imburse himself accordingly.

*126 So then the last plank upon which this bill could stand, is knocked from under it.