Charleston,

Jan’ry. 1849.

#### *Thomas Napier*v. *J. J. Gidiere, Ex'r.*

Parties who undertake to enforce securities taken *by this*Court, without haring obtained its authority, must do so under the responsibility of shewing, whenever the matter is drawn in question here, that they have such a case as would have induced the Court to place the instrument under their control; and they must comply with whatever conditions the Court would have annexed to its order for the delivery or assignment of the securities to them.

Where a single party is manifestly entitled to the exclusive benefit of a security in the hands of the Court, it may be ordered out to him, upon the terms before stated; but where several parties are interested, and the application is by one of them, it would seem to be the safer practice to direct the officer holding the security to bring suit, upon being indemnified as to costs and expenses; and to bring the proceeds of the suit into Court for its further order.

Suits at law, upon securities taken by this Court, must be at the risk and charge of the party desiring to use them, and in exoneration of the Commissioner.

This appeal was taken from two separate decisions — the first of which was made in 1844, and the second in 1846.

A brief statement of previous proceedings in the case, is necessary to a proper understanding of the points presented by the appeal.

The plaintiff, Napier, had obtained a judgment in the State of New York, against Descoudres, the testator of the defendant, Gidiere. Being dissatisfied with the management of the estate by Gidiere, as executor, which, in his opinion, tended to render his demand insecure, he filed this bill for a receiver, &c. Upon a motion made before Chancellor Dun-kin for the appointment of a receiver, it appeared from the affidavit of Gidiere himself, that he had received assets, as executor, to the vtdue of about $12,000, out of which he *193bad, within the time prescribed for the ascertainment of debts, paid, on demands of less dignity than that of plaintiff, about $6000, leaving in his hands for the payment of the plaintiff and other creditors, about $6000; which was not sufficient to satisfy them; — and that out of this balance, he claimed to retain about $4000, upon a demand which he set up on his own behalf. It further appeared that he had not made the returns required by law; and that he had threatened that the plaintiff should never realise one dollar on his judgment.

Under these circumstances, Chancellor Dunkin, in July, 1838, “ ordered that the defendant, J. J. Gidiere, pay into the hands of the Commissioner of this Court, within ten days after notice of this order, the sum of $6,233 14. That he also place in the hands of the said commissioner, the notes, books of account, and other evidences of debt, belonging to the estate of L. P. Descoudres, deceased. That the said commissioner, as receiver for the said estate, proceed to collect the outstanding debts, in the name of the said executor, who is hereby enjoined from collecting the same, or in any manner interfering with the said receiver in the execution of this order. The funds, when received, to await the further order of this Court.”

Gidiere having failed to pay the money into Court, agreeably to this order, a rule for an attachment against him was made absolute in January, 1839, and an attachment issued accordingly, under which he was arrested.

Gidiere put in his answer, in which he alleged that*Des-eoudres, his testator, left no individual estate, except a piano, some wearing apparel, a breast-pin and a watch — that the stock in trade, &c. of which he was in possession at the time of his death, belonged to a firm, of .which he, Gidiere, had been a dormant partner since 1828, and of which he was, now, the surviving partner; and he claimed the same in that character, for the purpose of settling the copartnership affairs.

This claim was brought to a hearing before Chancellor Dunkin, at June Sittings, 1839, who adjudged that the property in question belonged to Descoudres’ individual estate, and directed that the orders previously made be carried into effect; and that the Commissioner take an account of the assets and liabilities of said Descoudres, and report thereon, preparatory to a final decree for marshalling and distributing the said assets.

From this decree Gidiere appealed.

Pending the appeal, a report was made, upon which it was ordered, at June Term, 1840, by Chancellor Johnson, “ that so much of the report of the commissioner as fixes the amount of complainant’s debt, be confirmed; and that com*194plainant be entitled to be paid the sum out of the assets of Descoudres, (ordered to be paid into court) in the due course of administration.”

At the same time a petition filed by Gidiere was heard, in which he prayed that the attachment under which he was in custody might be suspended till the hearing of the appeal which he had taken. Upon this petition the same Chancellor “ordered, that the defendant, Gidiere, enter into bond to the Commissioner of this Court, with two good and sufficient sureties, in a penal sum equal to twice the amount ordered to be paid into Court by Chancellor Dunkin. The condition of said bond to be, that the said J. J. Gidiere will abide by and perform the decree heretofore made for the payment into court of the said sum of money, within ten days after *the*decree of the Appeal Court, in the matter decided by this Court, and by the decree of Chancellor Dunkin, or surrender himself a prisoner to the sheriff, under the attachment, now in force against him. And on the Commissioner furnishing the sheriff with a certificate that he has given such bond, with two good and sufficient sureties, the sheriff is hereby authorized to discharge the body of the said Gidiere from custody under the attachment.”

Gidiere accordingly entered into bond to Mr. Commissioner Gray, with Stephen Watson and Benjamin J. Howland sureties, in the penalty of $13,000, conditioned as directed in the order of Chancellor Johnson; and was discharged from custody.

The appeal was heard, and decided against Gidiere, the 29th of May, ,1843.

On the 9th of June, 1843, the following correspondence took place between the counsel of Gidiere and Napier.

*“*Dear Sir r — Mr. Gidiere wishes to pass a week in *Aiken ;*but, as he is liable to be called on at any moment to surrender himself at Mr. Napier’s suit, he requests that you would let him know when Mr. Napier wishes him, and he will come by the next train.

Your obedient servant,

9th June, 1843. J. L. Petigru.”

“ I can only say that, in the absence of Mr. Napier, I shall, myself, take no active steps, without intending thereby to, m any way, alter the relations of the parties.

Your obedient servant,

9th June, 1843. Benj. F. Hunt.”

On the 29th of the same month, Mr. Hunt gave notice to Messrs. Petigru & Lesesne, that he was instructed by Napier to proceed upon the bond.

On the 30th, Gidiere offered himself to the sheriff, but the *195attachment was not to be found in his office, and he declined to take custody of him.

Suit was instituted at law, in the name of Mr. Gray, against Gidiere and his sureties. Whereupon, a petition was filed by Watson and Howland, the sureties, praying leave to surrender the principal; that the action at law be stayed, and that their bond be cancelled.

This petition, to which an answer was put in, came on to be heard at February Term, 1844, and which was heard • Gidiere was in court, and was tendered by the sureties.

The decree was made (which is one of the two decisions now appealed from.)

After stating the circumstances, the Chancellor (Johnston) said,

“It may be questioned whether the Master had any sufficient authority for assigning the bond to Napier for suit, without order; or, whether it may not be incumbent on the plaintiff at law to shew an authority for sueing upon a bond taken by this Court, before he can sustain his suit on it. At all events, he who, without the authority of this Court, undertakes to enforce its obligations, must do so under the responsibility of shewing, when the matter is brought in question here, that he has such a case as would have induced the Court to place the obligation under his control.

“ If Mr. Napier had applied for leave to sue the bond, after the letters of the 9th of June, 1843, and after the offer- of the sureties to surrender their principal, I see no reason to doubt that his application would have been refused. For all substantial purposes, if the surrender had been accepted, the creditor would have been in possession of all the indemnities the Court intended for him, and in full time.

“ That the attachment was not in the possession of the sheriff’, may not have been the fault of Mr. Napier or his counsel. Was it the fault of Gidiere or his sureties? If it was the sheriff’s fault, he is responsible to the party injured.

“ I must direct the suit at law to be stayed until further order; and that the petitioners have leave to surrender their principal, (under an attachment to be substituted for the original, if necessary;) and that, therefore, they have leave to apply for the cancellation of their bond — and it is so ordered.”

On the 3d of August, 1846, Napier moved, before Chancellor Dunkin, for an order on Mr. Commissioner Gray, to deliver the bond to him, which motion was refused by his Honor. This decision is the second of the two now appealed from.

The appeal is upon the grounds :

1. That the liabilities of the sureties were fixed by the order under which the bond was taken, and could not be *196altered. The order was not complied with within ten days af(er appeal decree, the bond was forfeited, and the rights of Napier vested.

1 Haggard, 139. 1 Strob. Eq. 407.

g. Because every transaction after the defendant, Gidiere, was in custody, was without the consent of the plaintiff.

There was no proof that the plaintiff withdrew the attachment; and its being out of the office at the tender of the body of Gidiere was immaterial, as that was not made till after the expiration of ten days from the appeal decree.

3. Because the decree on the petition did not preclude the plaintiff from further proceeding in this Court; and he was entitled to his, motion for the delivery of the bond as his property.

The appeal was argued by Hunt, for the appellant, and Petigru, contra, January Term, 1848.

Re-argued by same councel, January Term, 1849.

The following is the opinion of the Court of Appeals.

Curia, *per*

Johkston, Ch.

We are satisfied with the position laid down in the decree of 1844 — that parties who undertake to enforce securities taken by this Court, without having obtained its authority, must do so under the responsibility of shewing, whenever the matter is drawn in question here, that they have such a case as would have induced the Court to place the instrument under their control.

To this it must be added, that they must comply with whatever conditions the Court would have annexed to its order for the delivery or assignment of the securities to them ; and it appears, upon principle, that suits at law, upon these obligations, must be at the risk and charge of the party desiring to use them, and in exoneration of the commissioner. ®ee practice in analagous cases, in the Ecclesiastical Courts, stated *In the goods of Joseph*Hall, quoted in *Villard*v. *Robert.*

The bond in the case before us was taken by the Court, in the name of its commissioner. The interest of Mr. Napier in the instrument must depend upon his interest in the fund to which it relates.

That fund was ordered to be paid into Court, subject to its further order. All the unsatisfied creditors of Descoudres’ estate were interested in it, and the decree of 184U, on which Napier relies, gave him no exclusive right, until, according to its terms, it should be ascertained, by further proceedings, that his debt was entitled to be paid out of it, *“*in a due course of administration.”

Where a single party is manifestly entitled to the exclusive benefit of a security in the hands of the Court, it may be ordered out to him, upon the terms before stated.

But where several parties are interested, and the application is by one of them, it would seem to be the safer prac-*197lice to direct the officer, holding the security, to bring suit, upon being indemnified, as to costs and expenses — and bring the proceeds of the suit into Court for its further older.

Such an order would have been granted on the application of Mr. Napier, if the Court had not entertained doubts, (which it now no longer entertains,) of the propriety of putting the bond in suit. And we suppose it will, under the circumstances, be a substantial compliance with the requisitions just stated, to direct that he be allowed to proceed, at his own costs and charges, with the suit already brought; the proceeds of the suit to be brought by him into this Court, subject to its order; and that tire Commissioner attend with the bond, in order to sustain the suit. And it is so ordered.

In coming to this conclusion, we do not intend to express any opinion whether there is a breach of the condition of the bond or not. That is properly a question of law, and may be well decided on the trial in the law Court.

It may be admitted that there are cases in which this Court will not subject a party to the consequences of a technical breach, though one be committed. But we do not, in this case, see equity sufficient to induce us to put any restraint upon the legal effects of the bond, as against the parties to it.

It is ordered that the decrees appealed from be modified, according to the foregoing opinion and order.

Caldwell and Daugan, CC. concurred.

*Decrees Modified.*