17 Ga. 123 | Ga. | 1855
By the Court.
delivering the opinion.
According to the case made by the bill, had the complainants a complete remedy at Law ?
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
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.
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.