1 Cl. Ch. 551 | New York Court of Chancery | 1841
The writ of ne exeat is not, in this age and certainly not in this country, looked upon as a prerogative writ. It is a mere ordinary- process of the court, to'be used, under certain circumstances, to enable it to compel parties, as be
It is employed to prevent a party who owes an act of justice to his fellow citizen, and to enforce which a suit has been instituted, from withdrawing himself from the jurisdiction of the court, so that he cannot be compelled by its process, to abide its decree. It is, in other words, mere equitable bail, and it is, in fact, in the court of Chancery, and leads to results almost identical with common bail upon a capias, in a suit at law. It has a parallel and similar force and efficacy. To warrant the issuing of a ne exeat, there must be a debt or duty existing at the time, and so far mature at the time, that present payment or performance can rightfully be demanded. This, too, must be an equitable debt. If the complainant has an adequate remedy at law, so that he can hold the defendant to bail by suit at law, he cannot obtain this writ here. There are some exceptions to this last rule, where the jurisdiction of courts of law and equity are concurrent, as in cases of account. It may be allowed in aid of a bill for a specific performance of a contract for the sale of lands. (Bochin vs. Wood, 1 Turner and Russell, 332 ; Brown vs. Haff and Lyon, 5 Paige, 235.) The principles upon which the writ is allowed and issued, are generally understood by the profession, and no reference to authorities can be necessary. At the time the writ is issued, it should be marked by the officer allowing it, in the sum in which the defendant is to be held to bail, and this sum should only be sufficient to cover the complainant’s demand. (Bochin vs. Wood, 1 Turner and Russell, 332 ; McNamara vs. Dwyer, 7 Paige, 239.) In this case, one of the
This suit is brought for the purpose of compelling the defendant to restore a note executed by him, and of which he obtained possession by mistake; or for payment of the amount. The note is past due, and has been mutilated by tearing off the maker’s name. It is perfectly apparent that a restoration of the note would be an idle ceremony. In the first place, in its present shape it would be of no value ; and if of value, would drive the complainant to a suit at law to recover the amount. If this court have properly obtained- jurisdiction, they would retain it for the purpose of doing full justice to the parties, and that could only be done, if the justice of the case was with the complainant, by decreeing the defendant to pay the amount of the note. The complainant has not sta
I must say that I doubt whether the complainant has made a case full enough to claim the benefit of the jurisdiction of this court. But if he has, the decree, if any in his favor, must be for the payment of the amount of the note.. This would be substantially a decree for a matter founded upon contract. An execution of such decree could not be enforced against the person of the defendant.. The Chancellor, in Ashworth vs. Wrigley, (1 Paige, 301,) has decided that when a defendant has been discharged under the non-imprisonment act, that a ne exeat upon a bill for an account, without any charge of fraud, would also be discharged. The plain principle of this decision is, that inasmuch as the defendant had been discharged by competent authority from imprisonment, the ne exeat would be useless. If the writ had been retained and a decree passed against the defendant for the money demanded, no process could have gone against the person to enforce its payment; and therefore there was no use in keeping the person to answer the decree, for which the person could not finally be made to answer. This decision was made in 1828. Since that time, the act to abolish imprisonment for debt, of 1831, has been passed. This is in some sense a general non-imprisonment act.
It is true, as said by the Chancellor, in the case of Brown vs. Haff and Lyon, (5 Paige, 235,) that this act does not affect the power of this court to issue a ne exeat in any case of equitable cognizance; and I apprehend the court have such power, and will exer
If a decree is made against him in this cause, an execution can only go against his property, and not against his person. The only possible advantage of keeping him here, is to detain him within the jurisdiction of the court, until á decree is had in this cause—an execution issued thereon—returned unsa
Under my view of the scope and intention of this writ, and of the operation of the act of the legislature, this writ must be discharged; and if there should be a “ failure of justice,” it is only in consequence of the act to abolish imprisonment for debt.
Writ discharged, with $12 costs.