Williams v. Williams

| New York Court of Chancery | Oct 15, 1834

The Chancellor.

This is a proper case for an injunction, but not for a ne exeat. Here is no debt, either legal^* or equitable, due from the defendant to the complainants, nor are the complainants entitled to an account. Sucha demand is necessary to-sustain the writ. This is the general rule. In this case, there'is not even a claim for damages ; and if there were such claim, it would not be sufficient: Eden v. Rathbone, Opin. of Ch. Wil~ liamson, Jan. 1828; Beame's Ne Ex. 37; 2 Madd. Chan. 226; 1 Jac. and Walk. 405 ; 2 Jac. and Walk. 213 ; 10 Ves. 166.

It is to be presumed that the injunction will be sufficient to restrain the party from an improper conveyance of the property; and if so, it is a matter of little consequence to the complainants whether he leave the state or remain. The suit can proceed in his absence; and if the decree be in favor of the complainants, it will operate as a conveyance in case the defendant fails to execute a deed according to the order of the court: Rev. Laws, 499. If, notwithstanding the injunction, the defendant should execute a conveyance, the proper remedy will be by attachment for a contempt; and in such case, if he had removed out of the state, the defendant would be deprived -of that -remedy, and there anight possibly be a -failure of justice. But the court cannot consent to grant this high prerogative writ, on the assumption that a party will disobey its solemn injunction, and render himself obnoxious to its censure and punishment.

The motion for a ne exeat is denied. Let an injunction issue,

* The writ is only granted in case of an equitable debt or demand, and ic not granted for a mere legal demand, for which the defendant may be held to bail, except in a matter of account or in a suit for alimony: Amsinck v. Barklay, 8 Vesey, 594 ; Pearne v. Lisle, 1 Ambler, 75 ; Flack v. Holm, 1 Jac. and W. 4D5 ; Anon, 2 Atk. 210; 1 Smith's Chan. Prac. 576 ; 2 Mad. Chan. Prac. 227.