
    Charles Ross, plaintiff in error, vs. Benjamin F. Hawkins, administrator, and Jane A. King, administratrix of Jonas King, deceased, defendant in error.
    Since the new bail Act of 1857, giving sureties the right of having their princi* pals bailed immediately, the surety has no necessity to resort to a ne e&eaO against his principal. Bail accomplishes the same purpose, and the remedy on. the common law side of the Court being equally adequate, a resort to equity will not be sustained.
    In Equity, in Polk Superior Court. Decision by Judge Hammond, at April Term, 1859.
    This was a bill by Hawkins, and Jane A. King, adminisrator and administratrix of Jonas King, deceased, against Charles Ross, and alleges that complainants were appointed administrators of said Jonas, in the year 1838, and that their intestate, sometime prior to his death, united with the defendant in several promissory notes, amounting in the aggregate to a large amount, and that his name appears as one of the principals to said notes, when he was in fact, only the surety, and that defendant is really the principal, and alone received the consideration therefor; that said notes are due, and defendant fails and refuses to pay them.
    The bill further states, that defendant owns a considerable number of slaves and other property; that he has recently carried a part, of said slaves out of the State, for the purpose of avoiding the payment of these demands, and that complainants believe and charge, that he will run or carry off the remainder of his negroes and other property, and will remove himself and effects beyond the limits and jurisdic- ■ tion of the State; that said defendant, by thus leaving the State and removing his property, designs to force the creditors holding the aforesaid notes to resort to the estate of complainant’s intestate. The bill prays for a writ of ne exeat, &c. The writ of ne exeat issued, and defendant entered into bonds, conditioned not to depart the State, without the performance of the final decree which might be made in the case.
    Afterwards, defendant demurred to the bill, and also filed Ms answer.
    At April Term, 1859, the cause coming on to be heard on the demurrer, and a motion to discharge the ne exeat, the Court overruled the demurrer, and refused the motion to dismiss.
    To which decision and refusal counsel for defendant excepted, and assigns the same for error.
    Chisolm & Waddell, for plaintiff in error.
    Printup & Harvey; and W. Akin, contra.
    
   — Stephens J.

By the Court.

delivering the opinion.

We think the ne exeat ought to have been dismissed. The Act of 1830, Cobb’s Dig. p. 527, provides that in all cases of ■ne exeat the defendant shall be discharged upon giving bond with good security, either that he will not depart the State, or "pay the eventual condemnation money. The defendant has his option, and therefore all that is secured to the complainant by this process, is the presence of the defendant within the State. The same thing is secured to him by the new hail Act of 1857, in favor of securities — diets of 1857, p. 110 $ and his remedy being as good elsewhere, he has no necessifly-to resort to a Court of Equity. It was said in argument, that a resort to equity was necessary, in order to obtain a discovery of the fact of suretyship. That discovery has already been had, and there was no necessity to retain the bill for that purpose, even if it could not be had equally well on the common law side of the Court. Besides all this, for myself, I think the affidavits in this case are too vague and flimsy to support a ne exeat.

Judgment reversed.  