Johnson v. Clendenin

Stephen, J.,

delivered the opinion of the court.

This is an appeal from an order of Harford county court, acting as a court of equity, by which the bond of the appellees was ordered to be cancelled, so far as related to them, in their capacity of sureties, for a certain Nathan Walton, who had been taken under a writ of ne exeat, issued against him, in a suit of the appellant against him in said court. By the final decree of the court in the said cause, the defendant, Walton, was ordered to bring into court the sum of money therein mentioned, on or before a certain time specified in said decree.

Walton having failed to comply with this judicial mandate of the court, process of attachment was issued against him, by virtue of which he was arrested, brought into court, and on the application of the complainant, committed by the order of the court to the custody of the sheriff, to be safely kept till he complied with said decree. While in the custody of the sheriff, he effected his escape from imprisonment, and the question which this case presents for adjudication is, whether the decree of Harford county court was correct, according to the principles of equity, in discharging the sureties from their responsibility, under the above circumstances ? To determine this question, it is only necessary to consider, what is the object and design of the writ of ne exeat, as used by courts of chancery in the exercise of their equity jurisdiction. It is to hold the party amenable to justice, and to render him personally responsible for the performance of their orders and decrees. The obligations devolved upon the sureties entering into the bond, bear a close resemblance to the duties and responsibilities *482 of bail, at common law. The bail assume upon themselves the obligation, that their principal shall pay the debt, or be personally amenable to the final process of the court; and the sureties in the ne exeat bond undertake, that the defendant shall be personally responsible for the performance of the orders and decrees of the court. To this extent they become answerable, and when this duty has been fulfilled, their engagements, under their bond, are at an end.

That this is a correct view of their responsibility, appears from the following case, in 1 Dickins, 95, which is so strikingly similar in all its features, to the present case, that we think it proper to incorporate the whole of it into this opinion. The case was as follows. “The plaintiff having sued out a writ of ne exeat regno, against the defendant, he entered into a bond with two sureties, for his not departing the kingdom. The cause was afterwards heard, and there was a decree against the defendant for the same matter, for which the writ of ne exeat issued. The defendant being in contempt, and in custody for not performing the decree, the sureties applied, and obtained an order, that they should be discharged, and the bond, as to them, cancelled.”

It is true that in the case referred to, the defendant was in custody for not performing the decree at the time the sureties obtained the order, that they should be discharged, and their bond cancelled, but the principle of the decision shows in the clearest light, the extent of their liability, and establishes beyond controversy, that so soon as the defendant is in custody under the final decree, their bond has performed its office, and their responsibility under it is at an end. If such be the legal effect and operation of the commitment of the defendant to the custody of the sheriff, for a contempt in not performing the decree, it is conceived that his sureties are not responsible for his subsequent escape from the sheriff, who is an officer of the law, and whose duty it was to keep him in confinement. *483 We therefore think, that the decision of the court in this case was correct, and that the order appealed from ought to be affirmed.

order affirmed.