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Catherine N. Forrest agt. Edwin Forrest,

objects and remedy in view (1 Kent's Com. 462). Such I understand to be the sound maxims of interpretation established by the experience and ratified by the approbation of ages, and I have neither the power nor the inclination to wander from them in pursuit of the presumed intention of the propounders of the statute.

Any other rule would substitute the discretion of the judge for the fixed rule of law; would cast every man's rights afloat upon an unexplored sea, and would annihilate that certainty which in law is the mother of repose.

The admission made at the bar, to which I have alluded, and the decision of the Superior Court to which we were referred, both are based upon the idea that the writ of ne exeat has merely the office of the capias ad respondendum at law, and issues only for the purpose of arresting the defendant.

This is a mistaken view of the office and purposes of the writ. Like the writ of supplicavit it is one of the peculiar remedies connected with the exclusive jurisdiction of equity, and it may as well be said that the writ of supplicavit, which is in the nature of the process at common law to find sureties of the peace and is resorted to by the wife against her husband, is abolished because both at law and in equity, the wife has another adequate remedy. It is true it is seldom used, but it is equally true that it has not therefore ceased to exist as a provisional remedy (Codd vs. Codd, 2 J. R. 141; 2 Story Eq. J. § 1466).

The writ of ne exeat, was originally used for political purposes and was founded on the idea, that because every man was bound to defend the king and his realm the king might, as part of the prerogative of the crown, command any man that he should not go beyond seas or out of the realm (Fitz Nat. Brev. 85; 2

Co. Ins. 54; Com. Dig. Chancery, 4 B). In the reign of Elizabeth it was applied to civil purposes in aid of the administration of justice (2 Story Eq. J. & 1467). In this country it is used, not so much as a prerogative writ, as a writ of right, and in general will not be granted unless in cases of equitable debts or claims, for the reason that on legal claims there is an

Catherine N. Forrest agt. Edwin Forrest.

adequate remedy at law (Beames Ne Ex. 30; Seymour vs. Hazard, 1 J. C. R. 1).

Such is the general rule, to which there are two exceptions; and one of them is the case of alimony decreed to a wife, which will be enforced by this writ, against the husband, if he is about to quit the realm (Shaftoe vs. Shaftoe, 7 Ves. 71; Dawson vs. Dawson, Id. 173; 2 Atk. 210).

And the question arises whether the writ, in this, one of the excepted cases, is the case of an arrest prohibited by section 178 of the Code, or is one of those provisional remedies which is 'saved to suitors, from the process of abolition, by sections 244 and 468.

If we look upon the writ merely as a means of enforcing an equitable debt, we may well conclude that it is superseded by the arrest provided for in the Code; but if we look upon it as a prerogative writ to compel a man to remain at home until he has performed his duty to the realm or as a writ in aid of the exclusive jurisdiction of equity, restraining one who designs to avoid the justice and equity of the court by going beyond seas (Wyatt's Practical Register, 289), we may well doubt whether it is or ought to be abolished. And we may well imagine that there were members of the legislature learned enough to know its full scope and office and wise enough to wish to retain it, in cases where its abolition could be of no practicable benefit and its continuance of no possible injury.

The writ has been applied to foreigners temporarily in this state, upon the principle that by going beyond the state they might avoid the jurisdiction of our courts and deprive parties resorting to our courts of their right to a remedy in them (Woodward vs. Shatzell, 2 J. C. R. 412; Mitchell vs. Bunch, 2 Paige, 606).

It has been applied to cases where the party has real and personal property out of the state, which our courts can compel him to assign for the benefit of creditors suing here.

To an accountant of the crown about to leave the realm with out having rendered his accounts (Attorney General vs. Mucklow,

Catherine N. Forrest agt. Edwin Forrest.

1 Price Rep. 289), and to cases where it clearly appeared that the plaintiff was entitled to a decree for a specific performance (Bochin vs. Wood, Turn. & Russ. 332). These, as well as the action of account, are cases in which the writ has other offices than merely the enforcement of the payment of an equitable debt, and they are cases in which the prosecuting party must be often without remedy unless the writ can be resorted to.

A suit for alimony is like to them. In Denton vs. Denton (1 J. C. R. 364), upon a petition setting forth that the wife had filed her bill for a divorce, that the defendant had abandoned her and treated her with cruelty; that she had no means of support, and that the defendant was a man of large fortune and threatened to leave the United States, and praying for a ne exeat and a writ of supplicavit to restrain the defendant from molesting her retreat, Chancellor Kent said that the allowance of a ne exeat, where the husband threatens to leave the state, is essential to justice and had been granted in like cases, and he allowed the writ.

Is all this done away with by the Code and these salutary offices of this writ abolished by it?

None of these cases are founded upon the narrow idea, so much dwelt upon, that the suit has as its sole office the requiring of equitable bail for equitable debts, but upon the broader principle that it is necessary to the due exercise of this court's peculiar and exclusive jurisdiction and to prevent a failure of justice.

Are we coinpelled to declare that this principle is blotted out of our sytem of jurisprudence? Surely not; certainly we can not be required to deny to parties this long accustomed and efficient remedy unless the language of the statute is too plain to be mistaken.

In Mitchell vs. Bunch, supra, the chancellor said that if the court had jurisdiction of the cause and the defendant intended to leave the state, so that the decree against him would be ineffectual, the complainant had a right to the writ; and if this be true of equitable debts it must be equally true of all the other cases in which the writ could ordinarily issue.

The Code has no where in express terms abolished the writ of

Catherine N. Forrest agt. Edwin Forrest.

De exeat; such abolition is inferrible only from the enactment in section 178, that no person shall be arrested in a civil action except as prescribed in the act, and it becomes important to inquire whether the arrest here spoken of, is one of the same nature and effect with the operation of the writ of ne exeat, so as actually to supersede it, or whether it is not one of those provisional reinedies existing at the enactment of the Code not otherwise provided for therein ($244).

One marked difference between an arrest under the Code and a ne exeat is this, that the writ never issued where the person of the defendant could not be touched under the decree either on execution or attachment (Gleason vs. Bisby, 1 Clarke, 551; Johnson vs. Glendening, 5 Gill & John. 463). The arrest in an action at law has not now and never has had any such limitation.

Another difference is in the nature of the arrest under the Code. By § 187, the defendant is to give bail that he will at all times render himself amenable to the process of the court during the pendency of the action and to such as may be issued to enforce the judgment therein. Upon a ne exeat the bail is merely that he will not go or attempt to go into parts without the state without leave of the court.

In the one case the sheriff is commanded to arrest the defendant and keep him in custody until discharged by law (Code, 9185). In the other case he is merely commanded to cause the defendant to come before him and give security not to depart the state.

In one case the surety may discharge themselves by surrendering their principal. In the other they can never be discharged except by order of the court.

Again, it is not necessary, though it is usual, that the ne exeat should be by writ; it may be by order enforced by attachment for contempt. Such is the practice in the English Court of Exchequer, where an order is in the first instance granted that the party within a limited time give security that he will not depart the kingdom, and in default that an attachment issue (Attorney General vs. Mucklow, 1 Price, 289).

Catherine N. Forrest agt. Edwin Forrest,

I see nothing in the Code to prevent such a practice, and in case it should be adopted instead of issuing the writ in the first instance, section 178 would clearly warrant an arrest on the attachment as for a contempt.

In an arrest under the Code the bail can be proceeded against for a default only by action ($ 190), but on a ne exeat, in case of a breach of the bond, the court may order the securities to pay the

money into court (Musgrave vs. Medex, 1 Mer. 49). In all essential particulars then, the ne exeat is unlike the arrest provided for in the Code. In its nature and effect, and in the cases to which it is applicable it is unlike, and it seems to me that construing this statute by the old and well established rules of interpretation, it is impossible to say that the ne exeat is otherwise provided for in the Code and therefore abolished by it.

The relief sought in this case, of the ne exeat, and the supplicavit, was only that which the Court of Chancery has long been in the habit of granting as appurtenant to its peculiar and exclusive jurisdiction (2 Story Eq. J. 1464), and was precisely that which was sought for and obtained from Chancellor Kent in Denton vs. Denton (1 J. C. R. 364), and can not with propriety be denied to suitors when asked for in a proper case.

Having thus arrived at the conclusion that the writ of ne exeat is not abolished as a provisional remedy, it only remains for me to inquire whether a proper case was presented to justify its allowance.

It has ever been the practice of the Court of Chancery to deny it, where the applicant for it had otherwise an adequate remedy at law, as for instance in cases of concurrent jurisdiction where the defendant might be arrested in a suit at law, and it will be clearly proper still to adhere to that rule to refuse the writ where otherwise the defendant may be arrested under the Code, and to allow it only in those cases, where without it there may be a failure of justice and suitors be deprived of their legitimate right to resort to our courts for the redress of wrongs and the prevention of injuries.

So too it has not been usual, at least in the English courts, to

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