2 Johns. Ch. 169 | New York Court of Chancery | 1816
The general language of the cases prior to the time of Lord Eldon is, that the writ of ne exeat is not to be granted, if the demand be not purely and exclusively equitable. (King v. Smith, Dickens, 82. *Brocker v. Hamilton, Dickens, 154. Pearne v. Lisle, Amb. 75. Anon. 9, Atk. 210. Crosley v. Marriot, Dickens, 609.) If the demand be actionable at law, and the party can be arrested and held to bail, there is no necessity for the writ; and if the case be not bailable, the granting of the writ would be holding the party to bail, when the plaintiff was not entitled to bail at law. The ne exeat has accordingly been refused, when the demand was in prosecution at law, and, not bailable, though the defendant was about to remove with his effects. (Crosley v. Marriot, Dick. 609. Case of Gardner, 15 Vesey, 444.)
But where a defendant, after a verdict at law, and before judgment, was threatening to go beyond sea, the roe exeat was allowed in an early case, (ex parte Brunker, 3 P. Wms. 312.) by the master of the rolls, though Lord Talbot after-wards discharged the writ, and on the ground, principally, that no bill was filed. He added, also, “ that the writ ought not to be made use of where the demand is entirely at law, for there the plaintiff has bail, and he ought not to have double bail, both at law and in equity.”
The import of this case is, that the rule against the allowance of the writ, where the matter was of legal cognizance, was not then understood to be inflexible, but would be made to yield to cases of necessity, when justice would be defeated without the aid of the writ. In Atkinson v. Leonard, (3 Bro. 218.) Lord Thurlow laid down the rule, that if chancery had concurrent jurisdiction, as in the case of a lost bond, it was sufficient to authorize the writ, if the demand was an equitable one; and he granted it as a measure to compel the party to give security to abide the decree; and Lord Loughborough only doubted, in Russel v. Asby, (5 Vesey, 96.) whether the roe exeat would lie when the defendant might be held to bail at law.
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Since the time of Lord Eldon, however, it has become settled in the English chancery, that though the plaintiff may sue at law for the balance of an account, and hold the *party to bail, yet, as chancery holds a concurrent jurisdiction upon the head of account, the plaintiff may have the roe exeat, on a positive affidavit of a threat or purpose of going abroad, even though the defendant’s general residence was abroad. (Jones v. Alephsin, 16 Vesey, 470. 11 Vesey, 54. and 1 Ves. & Beame, 132, 133. Howden v. Rogers.) In Amsinck v. Barklay, (8 Vesey, 594.) the defendant was arrested at law, and surrendered into custody; he was then held to bail on roe exeat for the same sum, and afterwards discharged in the suit at law for want of proceeding. The roe exeat was discharged on the ground that the defendant had first been arrested at law and kept in custody, and then discharged; and in Jones v. Sampson, (8 Vesey, 593.) the chancellor admitted his authority to grant the writ where the jurisdictions were concurrent; but he observed, (p. 598.) that if the plaintiff was actually arrested at law, he would not grant the writ.
This is not holding a party to bail when he is not entitled to it. Nor is there double bail, for the first bail is going abroad with all his effects, and that too in connection with the defendant; and though I am not free from diffidence, as to the view I have taken of this case, I feel myself bound to declare, from the best judgment I can form at present, that a ne exeat ought to be granted.
Writ of ne exeat granted in the sum of 500 dollars.
Vide Seymour v. Hazard, vol. 1. p. 1, 2.