Mattocks v. Tremain

3 Johns. Ch. 75 | New York Court of Chancery | 1817

The Chancellor.

There are difficulties arising upon this petition.

1. In the first place, the demand of the petitioner is no sufficiently ascertained. The old rule was, that stating the belief of the balance of an account was sufficient, but Lord Eldon, in Amsinck v. Barklay, (8 Vesey, 597.) said he should, in future, pause upon such a general statement, unless facts or declarations, as the ground of that belief, were given. I do not say that such a dictum is sufficient to form a new rule, but the nature of this case requires something more' than a general declaration, that the plaintiff owes him 3,000 dollars beyond the amount of the note, which he admits was given on a partnership transaction. Why should the note be given for part only of the demand? It is evidence that no more is admitted by the plaintiff to be duer and it is so far evidence of a settlement; and the bill filed'by the plaintiff claims a balance due him. In such a peculiar case, there must be something more than the general declaration of belief.

2. The evidence is not sufficient of the plaintiff’s intention to go abroad. It is a belief, derived merely from information ; and this seems to refer only to the fact that the plaintiff is disposing of his property. There ought tó be a positive affidavit of a threat or purpose to go abroad. (Etches v. Lance, 7 Vesey, 417. Oldham v. Oldham, 7 Vesey, 410. Jones v. Alephsin, 16 Vesey, 470. Percy v. Powell, cited in Beams' “ View of the writ of ne exeat,” p. 25. MS. case of Mr. Bell.) So, also, the affidavit ought to have stated, that the debt would, at least, be endangered by the departure of the plaintiff. (7 Vesey, 417. 8 Vesey, 33.)

There are several facts set forth in the petition which have nothing to do with the case. The plaintiff is sued, at law by the other two defendants, and with that fact, or the demand upon the note, I have, at present no concern. The application is only on hehalf of the petitioner, and he has no other ground for the writ than the balance due to him on the account, and his affidavit is too defective, for the seasons I have stated.

3. It may, also, be a question, whether the petitioner ought not to have filed his bill, to entitle him to the writ. The settled rule is, that the writ cannot be granted on petition and motion, without a bill previously filed. (Ex parte Bruncker, 3 P. Wms. 312.) Possibly, the may move for the writ upon the plaintiffs bill, seeing his demand may be liquidated, settled, and recovered under the present bill. The difficulty, however, is, that the plaintiff may abandon, or dismis his bill, on payment of costs; and the writ should not rest upon a bill which the party suing out the writ cannot controul.

Motion denied.