Gibert v. Colt

1 Hopk. Ch. 496 | New York Court of Chancery | 1825

The Court.

The English idea, that a ne exeat is a prerogative writ, is inapplicable, here. This writ has now become an ordinary process of courts of equity; and it is as much a writ of right, as any other process used in the administration of justice. It must be granted, when a proper case is presented.

The defendant is a citizen and a resident of another state; hut he is nevertheless, liable to this writ. Our own citizens, those of other states and foreigners are all equally subject to our laws, and to the process of our courts, while they are in this state. There can be no reason, that the writ of ne exeat should be an exception to this principle; and it has been often used to arrest citizens of other states, in this state. The only difficulty in this case, arises from the language of the affidavit, concerning the debt. Is the affidavit sufficiently positive, according to the precedents ?

Mr. Roosevelt in reply, as to this point. The complainants sue in a representative character. It is impossible therefore, that they should swear with greater certainty, than they have done : and if the rule contended for on the other side, is to be adopted, it will virtually exclude executors and administrators from the benefit of this writ, in all cases. Besides, the answer itself admits enough to warrant the issuing of the writ. It admits, that the debt once existed, but sets up matter of avoidance. Such matter is never inquired into on such applications, in courts of law; and there is no reason for the adoption of a different course in equity. “ Even” says Tidd 165, “ an affidavit of the plaintiff’s confession, “ that the defendant owes him nothing, will not be received.” The court will not try the cause, on this motion. At least, a ne exeat ought to be awarded, to the extent of the stock and dividends.

The Court.

According to the adjudged cases, a positive affidavit of an existing just debt, is required as a foundation for the writ of ne exeat; and this rule has been observed, with great strictness. Pursuing these decisions, I am of opinion, that the affidavit now before the court, is not sufficiently positive. But the answer of this defendant is also before the court; and in deciding this question, the court may and ought to take the answer into consideration. From the answer, it seems sufficiently clear, that the complainants are entitled to the stock and the dividends. The residue of the demand is not, upon the answer, sufficiently free from difficulty. I shall direct, the writ to be issued for an amount equal to the stock and the dividends. Let it be marked for seven thousand dollars.

The writ having been issued and the defendant having been arrested, the sheriff now applied to the court, for instruction concerning the amount in which a bond should be taken. The complainants’ counsel contended, that the penalty of the bond Should be double the sum mentioned in the writ: and the defendant’s counsel insisted, that the penalty of the bond should be the sum which had been ordered by the court, and n6 more.

The Court.

The practice of this court upon this point, does not appear to have been settled. The sum in which thé defendant is to be held to bail, úpon a writ of né exeat, is assessed by the court itself; and the court directs a sum sufficient to cover not only the existing debt, but also, a reasonable amount of future interest, having regard to the probable duration of the suit. If this sum were doubled or enlarged fay the sheriff, it might be very oppressive to the defendant. The sheriff must take a bond in the sum directed by the court, without any addition.

A bond was accordingly taken to the sheriff, in the penalty of seven thousand dollars, with condition that the defendant should not depart from the state, without leave of the court.

A few days .afterwards, the defendant brought the amount into court; and by consent, the writ and the bond were discharged.