3 Edw. Ch. 231 | New York Court of Chancery | 1838
The complainant is not entitled to the writ of ne exeat upon the ground that the defendant is bound to convey to him one half of the patent right, which he refuses to do.
The demand of the complainant (for a specific performance like the present) is not a moneyed demand ; and, therefore, not a case for the writ of ne exeat: Cock v. Ravie, 6 Ves. 283 ; Gardner v.-, 15 Ib. 445 ; Blaudes v. Calvert, 2 Jac. & W. 211.
Whenever this writ has been granted upon a bill for a specific performance, I apprehend it has always been against the vendee where the purchase money constitutes the demand against him and the payment of which is sought to be enforced. In such cases, if it clearly appears that the vendor can give a
Then, is there enough in this case to entitle the complainant to the writ, upon the matter of account ?
The bill alleges certain sales of the patent-right to the amount of twenty-four thousand nine-hundred and fifty dollars, and then says the defendant is justly indebted to him, on account of the said sales, in the sum of twelve thousand four hundred and seventy-five dollars (being just one half and which he claims as justly and equitably due over and above all off-sets. This latter averment, taken by itself, would seem to be positive as to an actual indebtedness; but it has reference to the previously stated data, for it is said “ on account of said salesand these, with the exception of four hundred and fifty dollars, are stated, not positively from the complainant’s own knowledge, but from his information and belief. Even if this is sufficient, in the first instance, to authorize the granting of the writ, it is open to explanation or contradiction by affidavit on the other side upon a motion to discharge it. This is clear from analogy to the practice in courts of law with respect to holding a defendant to bail and from what fell from the lord chancellor in Flack v. Holm, 1 Jac. & W. 414. Now, the defendant, in his affidavit, positively denies that he has received as yet any thing in money, notes or securities whatever, except four hundred dollars from one rail road company, and over and above this sum, he says he is more than one thousand dollars in advance. He is not, of course, yet indebted to the complainant. There is nothing in his hands to account for; and, by the injunction, he is prevented from receiving any thing.
If the defendant’s affidavit be untrue in this respect, then he is a perjured man. It may be true, notwithstanding his admission or declaration to third persons to the contrary.
The proof of the defendant’s non-residence and of his intended departure from this state, is satisfactory enough; but,
Order accordingly; and, costs to abide the event.
