Brayton vs. Smith and others, 6 Paige Ch. 489

The Chancellor. It appears to be settled that the sheriff must at his peril take sufficient security upon a writ of ne exeat for his own indemnity if the defendant leaves the state so that he cannot be made amenable to the process of the court pending the suit or compelled to perform the final decree. (Boehm v. Wood, Turn. & Russ.

Rep. 332.) If the defendant, therefore, cannot obtain such security as will satisfy the sheriff, or if he wishes to leave the state upon business or otherwise pending the suit, his proper course is to apply to the court to discharge the ne exeat upon his giving sufficient surety to answer the bill and to render himself amenable to the process of the court during the progress of the cause and such as may be issued to compel a performance of the final decree. Upon such an application the court will take such security as may be deemed sufficient, and will discharge the liability of the sheriff.

From the case of Collinridge v. Mount, (2 Dicken's Rep. 688,) it appears that the English court of chancery has no authority even to make an order for the prosecution of the bond taken by the sheriff upon a ne exeat. And the authority of that case appears to have been recognized by Lord Eldon in Boehm v. Wood, although he had granted leave to prosecute such a bond, in the case of Musgrave v. Medex, a few years before, (1 Meriv.

Rep. 49.) It is not the practice of this court, however, to compel the sheriff who has taken bail upon the ne exeat to pay the debt absolutely, without giving him time to produce the defendant, so that he may be rendered amenable to the process of the court for the performance of its order or decree. And even where the sheriff is unable to produce the body of the defendant, it would be unreasonable to compel him to pay the money, where he has done his duty by taking sufficient security, without giving him a reasonable time to collect the amount upon his bond.

In the present case, it appears by the affidavit on the part of the sheriff, that the defendant can be produced by the first motion day in July; which is not an unreasonable time after the sheriff had notice of this application and of the decree and the return of the execution against the defendant, such execution having been issued to his successor in office. An order must therefore be entered that D. Sherrill, the late sheriff of Washington county, produce the body of the defendant H. M. F.

Smith before the chancellor on the ^rst Tuesday of July next, and pay to the complainant the costs of this application, or in default thereof that he pay to complainant the amount of the decree against Smith, including interest, together with the costs of this application. And that if the same is not paid within six months thereafter, the complainant haye liberty to issue process for the collection thereof; unless the court, upon a proper application, shall give further time to the sheriff to collect the same upon his bond.