The petition must show the title of the person, the payment of whose fund is intended to be restrained: although it is not absolutely necessary that it should show the particular share of the fund to which he is entitled; and it must also show the title of the assignee.1 The Court must have proof of these facts, whether the application be made by petition or summons. The title of the assignor will usually appear from the proceedings in the cause: where this is not the case, the facts must be established by affidavit.2 The title of the assignee is generally proved by the person whose fund is to be affected either joining in the application, or appearing and admitting the fact: when this is not the case, it must, in the case of a petition, be proved in the regular way. To obviate the expense of strict proof, it is now usual, where the applicant claims as assignee, for the assignment to give him the power to use the name of the assignor as an applicant. 4 It was formerly necessary, upon applications for Stop Orders, that the petitioner should give notice to all the persons interested in the fund for, as there was no provision enabling the Court to make the person applying pay the costs consequent upon the order, it was considered unjust that a person should obtain an order affecting another party's fund, in his absence; but now, where any stocks, funds, shares, securities, or moneys, are standing in the name of the Accountant-General, in trust in or to the general credit of any cause or matter, or to the account of any class of persons, and an order is made to prevent the transfer or payment of such stocks, funds, shares, securities, or moneys, or any part thereof, without notice to the assignee of any person entitled in expectancy or otherwise to any share or portion thereof, the person by whom any such order is obtained, or the shares affected by such order, are liable, at the discretion of the Court, or the Judge at Chambers, as the case may be, to pay any costs, charges, and expenses, which, by reason of any such order having been obtained, are occasioned to any party to the cause, or any person interested in any such stocks or funds, shares, securities, or moneys. It is not, therefore, necessary for any person presenting a petition, or taking out a summons, for any such order as aforesaid, to serve such petition or summons upon the parties to the cause, or upon Duty Act, or the Trustee Relief Acts, it seems the jurisdiction at Chambers to make a Stop Order affecting it is confined to those cases where there is jurisdiction to deal with the fund itself, under Ord. XXXV. 1 (2, 3). For form of summons, see Vol. III. 1 Wood v. Vincent, 4 Beav. 419. form of petition, see Vol. III. For 2 Quarman v. Williams, 5 Beav. 133. III. 4 Trezevant v. Fraser, 3 Beav. 283; 4 Chap. XXXVII. § 3. Lodging order with AccountantGeneral. Order does rights of the parties. the persons interested in the parts of the stocks, funds, shares, securities, or moneys, not sought to be affected by any such order;1 and the applicant must pay the costs of such other parties, if they are served with the petition or summons. It is, however, still necessary to serve the person whose interest is intended to be affected, with a petition which is presented by the assignee alone.3 The order, as now drawn up by the Registrars, is prefaced by a submission on the part of the assignee, to be bound by the twentysixth of the consolidated orders, rule one, above stated.* The order, when duly passed and entered, or an office copy, must be left at the Accountant-General's office; and, until this has been done, it does not take effect. The Accountant-General will, however, delay parting with a fund, if he has received notice of an intended application for a Stop Order. 7 A Stop Order does not decide any thing as to the rights of the not decide the parties; it is, therefore, in general, unnecessary to state that it is made without prejudice; but where the fund has been paid in under the Trustee Relief Act, the order was expressed to be made without prejudice to the trustees' lien for the costs. Where a husband and wife had, previously to the 20 & 21 Vic. c. 57, assigned her reversionary chose in action, the operation of the order was limited to the lifetime of the husband.10 Where wife's reversionary chose in action is its subject. Priority acquired by Stop Order. Solicitor's lien not af- costs of the order. 11 An incumbrancer, who has obtained a Stop Order, and duly served it on the Accountant-General, thereby obtains priority over a previous incumbrancer who has not done so; but this priority only extends to the charge in respect of which the Stop Order was obtained.12 A solicitor's lien, on a fund recovered by his exertions, has priority over a Stop Order obtained by an assignee from his client.13 The applicant is not, in general, entitled to the costs of the Stop Order; but they may be given him, where it has been rendered necessary by the conduct of the parties; 1 or where his assignment authorizes him to apply to the Court for it; but they should be specially mentioned in the direction for taxation.15 7 Lucas v. Peacock, 9 Benv. 177. 10 Moreau v. Polley, 1 De G. & S. 143. 14 lett v. Bartlett, 1 De G. & J. 127; 3 Jur. N. S. 705; Day v. Day, 1 De G. & J. 144; 3 Jur. N. S. 782; Thompson v. Tompkins, 2 Dr. & Sm. 8; Thomas v. Cross, 2 Dr. & Sm. 423; 11 Jur. N. S. 384, 385; but see Grainge v. Warner, 13 W. R. 833, V. C. S. 12 Macleod v. Buchanan, 33 Beav. 234; 9 Jur. N. S. 1266; 10 Jur. N. S. 228; 12 W. R. 514; L. JJ. 13 Haymes v. Cooper, 33 Beav. 431; 10 Jur. N. S. 303. 14 Grimsby v. Webster, 8 W. R. 725, V. C. K.; Hoole v. Roberts, 12 Jur. 108, V. C. E. 15 Waddilove v. Taylor, 6 Hare, 307; Morgan & Davey, 47. The fund to which the Stop Order applies will not be paid out, or otherwise dealt with, until it is either directly discharged, or some order is made expressly directing the fund to be dealt with, notwithstanding the Stop Order. A person who has obtained a Stop Order must, therefore, be served with notice of any application to deal with the fund; and at the hearing of the application the Court will either discharge the Stop Order, or direct payment to the person who has obtained it, according to what appear to be the rights of the parties; or, if the rights of the parties cannot then be satisfactorily ascertained, it will direct the fund to be retained in Court for a limited time, to give the claimant an opportunity of taking the necessary steps for asserting his claim.2 Where the person who has obtained a Stop Order afterwards assigns his interest in the fund affected thereby, the assignee may obtain a Stop Order in his favor on petition, or, by consent, on summons, supported by production of the former Stop Order, and an affidavit of his title. The order, in such case, either directs that the fund be not dealt with without notice to the assignee, instead of the person named in the former order; or else, that the assignee be substituted, as the person to whom such notice is to be given.1 8 An order may be obtained to stay the delivery out, without Stop Order on notice to the applicant, of documents deposited with the Record documents in and Writ Clerk, or the Accountant-General." Court. A Stop Order will be discharged with costs, if it has been ir- Discharge of regularly obtained." 1 By consent, an order to discharge the Stop Order may be obtained on summons at Chambers. For form of order, see Seton, 953, No. 6; and for form of summons, see Vol. III. 2 Bethune v. Kennedy, 3 Beav. 462; Feistel v. King's College, Cambridge, 11 Beav. 254; and see Wastell v. Leslie, 15 Sim. 453, n.; Thorndike v. Hunt, 3 De G. & J. 563; 5 Jur. N. S. 879. 8 Robertson v. Winch, M. R. in Cham bers, 25 Feb., 1861, Reg. Lib. B. 382. The 4 Tench v. Cheese, M. R., in Chambers, 5 Lang v. Griffith, cited Seton, 957. order for irregularity. CHAPTER XXXVIII. THE WRIT OF NE EXEAT REGNO. Nature of the writ. Only issued upon equitable demands. A Ne exeat Regno is a writ which issues to restrain a person from going out of the kingdom, without the Queen's license or the leave of this Court. It is a high prerogative writ: which was originally applicable to purposes of State only, but was afterwards extended to private transactions.3 A ne exeat regno issues, only, where the claim upon the party going abroad is equitable; and it will be refused upon a mere demand at Law for money: for there, it is said, "the defendant may be arrested, and obliged to give bail: who will be liable, unless 1 For the history and uses of this writ, see 2 Story Eq. Jur. §§ 1465-1475. For form of order for writ to issue, see 2 Seton Dec. (3d Eng. ed.) 959. 2 For cases showing under what circumstances this writ will be granted in different States, see 1 Smith Ch. Pr. (2d Am. ed.) 577, note (a). Virginia: Rhodes v. Cousins, 6 Rand. 188. Alabama: Lucas v. Hickman, 2 Stew. 11. North Carolina: Edwards v. Massey, 1 Hawks, 359. South Carolina: Nickson v. Richardson, 4 Desaus. 108; DeCarriere v. DeCalonne, 4 Sumner's Vesey, 478, note (a), by Mr. Sumner, and for the English cases see Mr. Hovenden's note, ib. 592. New York: The writ of ne exeat is not abolished by the New York Code of Procedure as a provisional remedy. Forrest v. Forrest, 10 Barb. S. C. 46. Nor is the power of the Supreme Court to issue the writ impaired or defeated by the provisions of the Code. Bushnell v. Bushnell, 15 Barb. 399. 8 Ex parte Brunker, 3 P. Wms. 313; Anon., 1 Atk. 521; Jackson v. Petrie, 10 Ves. 164; Beames on Ne exeat, 19; Prac. Reg. 289. This writ has now become an ordinary process of Courts of Equity; and it is as much a writ of right as any other process used in the administration of justice. It must be granted when a proper case is presented. Gleason v. Bisby, 1 Clarke, 551; Gibert v. Colt, 1 Hopk. 499; Mitchell v. Bunch, 2 Paige, 606; Porter v. Spencer, 2 In John. Ch. 169; Rice v. Hale, 5 Cush. 242. It is resorted to merely for the purpose of obtaining equitable bail; Mitchell v. Bunch, ubi supra. Whenever the defendant intends leaving the State, the plaintiff, upon producing evidence of such intention, and of his equitable claims against the defendant, has a right to this equitable bail. Ibid. The only proper use of this writ is to detain the person of the defendant to respond to the decree of the Court; and when the cause of action is such, that the person of the defendant cannot be touched under the decree either by execution or attachment, the writ will not issue. Gleason v. Bisby, Clarke, 551; see Johnson v. Clendenin, 5 Gill & John. 463. Rice v. Hale, 5 Cush. 244, Shaw C. J. said, "It is a mistake to suppose, that to obtain security of the debt is the only reason why the writ should issue. It cannot issue unless a debt is due, but having issued, the defendant will be held to comply with the decree of the Court and the justice of the case. Johnson v. Clendenin, 5 Gill & J. 463; 2 Story Eq. Jur. § 1473; Atkinson v. Leonard, 3 Bro. C. C. 218. He may thus be compelled to make a confession, to execute releases and discharges, and to do many things in the progress of the cause, from the benefit of which the plaintiffs will be debarred if he is discharged on this" (the poor debtor's) "oath." they surrender him; and he may be as easily taken by that process as on a ne exeat regno."1 It is not, however, the mere circumstance, that the defendant may be arrested and held to bail at Law, which induces the Court to refuse a ne exeat regno for a legal demand. It will not even grant it in cases where the defendant is not liable to arrest.2 The Court will issue the writ wherever one party has a claim against another, which he can only enforce in a Court of Equity. Therefore, where a man had executed a bond to the trustees of his marriage settlement, a party, beneficially interested in the money secured by it, was allowed to have a ne exeat regno against the obligor. It is, however, to be observed, that, in a case where a bill was filed by a residuary legatee against the executor and a debtor to the estate, stating that, by collusion between them, the debt was suffered to remain unpaid, and that the debtor was about to leave the country, Lord Eldon refused the application for a ne exeat regno: saying, he did not know any instance where it had been done. It is to be recollected, that the foundation of the equity in this case was the collusion, alleged in the bill, between the executor and the debtor: his Lordship's decision, therefore, was probably governed by the principle laid down by him in a 1 Per Lord Hardwicke, in Pearne v. Lisle, Amb. 75; see also Brocker v. Hamilton, 1 Dick. 154; Greames v. Stritho, 2 Dick. 469; Ex parte Duncombe, ib. 503; Crosley v. Marriot, ib. 609; Ex parte Brunker, ubi sup. ; Anon., 2 Atk. 210; S. C. nom. King e. Smith, 1 Dick. 82; Anon., 1 Bro. C. C. 376; Atkinson v. Leonard, 3 Bro. C. C. 218; and see 1 & 2 Vic. c. 110; Chitty's Arch. 750 et seq.; and Absconding Debtor's Arrest Act, 1851 (14 & 15 Vic. c. 52); Chitty's Arch. 880 et seq.; MacDonough v. Gaynor, 3 C. E. Green (N_J.) 249; 2 Story Eq. Jur. § 1740 et seq.; Seymour v. Hazard, 1 John. Ch. 1; Smedburg v. Mark, 6 John. Ch. 138; Porter v. Spencer, 2 John. Ch. 169, 170; Mitchell v. Bunch, 2 Paige, 606; Brown v. Haff, 5 Paige, 235; De Rivafinoli v. Corsetti, 4 Paige, 264; Nixon v. Richardson, 4 Desaus. 108; Cox v. Scott, 5 Harr. & J. 384; Palmer v. Van Doren, 2 Edw. Ch. 425; Gleason e. Bisby, 1 Clarke, 551; Rhodes v. Cousins, 6 Rand. 188; Lucas v. Hickman, 2 Stew. 11; Rice v. Hale, 5 Cush. 241. In North Carolina, the rule of granting a ne exent only in cases of equitable demands, applies where money, not property, is the subject in controversy. Edwards v. Massey, 1 Hawks, 352. The exceptions to this rule, that this writ lies only in cases of equitable demands, as stated by Mr. Justice Story, are, -1st, alimony; 2d, cases of account: 2 Story Eq. Jur. §§ 1471-1473; see Atkinson v. Leonard, 3 Bro. C. C. (Perkins's ed.) 223, note (a). In these Chap. XXXVIII. § 1. Not issued against a person not liable to arrest. Nature of equitable dewhich issued. mand upon |