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Writ of injunction.

injunction.

The People of the state of New-York, by the Grace of 11. Writ God free and independent, To C. D. and E. F. and to their counsellors, attornies, solicitors and agents, and each and every of them Greeting: Whereas, it hath been represented unto our Chancellor, in our court of Chancery, on the part of A. B. complainant, that he has lately exhibited his bill of complaint in our said court of Chancery, against you the said C. D. and E. F. defendants, to be relieved, touching the matters therein complained of. In which said bill, it is amongst other matters set forth, that you the said defendants, are combining and confederating to injure the complainant, touching the matters set forth in the said bill; and that the actings and doings of you the said defendants, touching the matters in the said bill mentioned, are contrary to equity and good conscience. We therefore in consideration of the premises, and of the particular matters in the said bill set forth, do strictly enjoin and command you the said C. D. and E. F. and all and every the persons before mentioned, and each and every of you, under the penalty of ten thousand dollars, to be levied on your and every of your lands, goods and chattels, to our use; that you, and every of you, do absolutely desist and refrain from all further proceedings at law against the said A. B. or against his bail, upon the judgment in favor of E. F. mentioned in the said bill, until the further order of our said court of Chancery to the contrary, and this under the pain aforesaid.

Witness, James Kent, Esq. Chancellor of our said state, at the city of New-York, the

day of

in the year of our Lord one thousand eight

hundred and eighteen.

G. H. Solititor.

Edm. Elmendorf, clerk.

[Endorsed] By the court.

Edm. Elmendorf, clerk.

1. Against

whom, and

NE EXEAT REPUBLICA.

Special Contents.

1. Against whom, and how granted.
II. Upon what kind of demand.

III. To whom directed.

IV. The nature of the affidavit.

V. By whom granted.

VI. Where the writ issues on the certificate of the master.

VII. When to file the master's report on exceptions to the defend

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THIS writ, though originally applicable to purposes how granted. of state, as a high prerogative writ, is now extended to private transactions, and is granted upon motion or petition, and affidavit after bill filed,(a) to restrain the defendant from avoiding the plaintiff's demand, by quitting the kingdom or state, as the case may be, but the court has granted this writ against an attorney upon a

(a) Newland, 102. 2 Mad, 181. 3 P. W. 314.

sum reported, upon taxation of his costs, to have been overpaid him, although no bill was filed against him.(6)

kind of de

This writ issues only on an equitable demand, with 2. Upon what the exception of a decree for alimony, where it issues mand. for the arrears, but for those only and costs.(c)

It has been refused upon a demand at law, not merely because the plaintiff may have bail, and he ought not to have double bail, both at law and at equity,(d) but for want of jurisdiction in such a case; the court having refused to grant this writ, upon a legal demand against an attorney, although he could not be held to bail ;(e) but it may issue upon a debt founded on a balance of account, as account is a matter of equitable as well as legal cognizance, although bail might be had for the debt.(f) This writ is applied at the discretion of the Chancellor in civil cases, (g) but always with great consideration; particularly where foreigners are concerned; for it is a severe process, depriving the subject of his liberty; "I never apply it," says Lord Eldon," without apprehension."

directed.

The writ is usually directed to the sheriff, to make 3. To whom the defendant find sufficient security that he will not depart the realm without the order of the court, and on his refusal to give bail or surety to the sheriff, to cominit him to prison.(h)

In order to obtain this writ, application should be made as promptly as possible, and the plaintiff must swear positively that the defendant is going abroad, or

(b) Newland, 102. 2 Mad. 181. Pre. Chan. 171.

(c) Newland, 102. 7 Ves. 171. 173. 410; and 14 Ves 261

(d) 3P. W. 312. Pre. Chan. 171.

(e) Do. 103. 15 Ves. 445.
(f) Do. 103. 8 Ves, 593,
(g) 2 Mad. 182.
(h) Mad. 183.

the affidavit.

to some declaration that he is, nor is it sufficient that

another person said so.(i)

4. Nature of The affidavit must be as positive as to the equitable debt, as an affidavit of a legal debt must be to hold to bail.(j)

5. By whom granted.

6. When the writ issues on

of the master.

The affidavit must also state the facts on which the debt arises, and on which it is grounded, and that the debt will be endangered by the party's going abroad; it need not allege that the purpose of going abroad is to avoid the demand.(k)

This writ is obtained by an application to the Chancellor, or in the absence of the Chancellor to a master of the court, duly designated for that purpose by motion or petition, agreeably to the provisions of the 41st rule of court. The application is founded on a bill regularly sworn to, and is made in the same manner as in the case of an injunction, of which we have already treated. See ante, injunction.

The Chancellor, or master, as the case may be, endorses on the bill, an order or certificate, allowing the writ to issue, and also marks on it, the sum in which the party shall be held to bail, as a guide to the sheriff, to whom it is directed.()

But where the writ issues on the certificate of the the certificate master, the party obtaining the writ, must within six weeks after the date of the master's certificate, obtain an order for continuing the same from the Chancellor, or the writ will be discharged of course without furtherorder.(m)

7. When to

file the mas

If a ne exeat hath issued on the prayer of the comter's report on plainant, and he excepts to the defendant's answer for defendant's an- insufficiency, the complainant shall procure the mas

exceptions to

swer.

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ter's report in fourteen days, or show cause why he has not done so, or his exceptions filed shall not prevent the dissolution of the ne exeat.(m)

thereon.

A writ of ne exeat republica, cannot be granted for a 8. Decisions debt due and recoverable at law; it is applied only to equitable demands.(n)

It must not only be an equitable demand, but one in the nature of a debt actually due.(o)

Where a wife filed a bill for alimony, &c. against her husband, and it appeared that he had abandoned her without any support, and threatened to leave the state, the court on the petition of the wife, granted a writ of ne exeat republica.(p)

On an application for a writ of ne exeat republica, by a wife against her husband, pending a suit for ali&c. her affidavit is admissible, the proceeding being ex parte, and the wife, in that respect, considered as independent of her husband.(g)

mony,

A writ of ne exeat may be granted prior to any decree for alimony.(r)

And the court in making the writ, will exercise a sound discretion, under the special circumstances of the case, having due regard to the rank of the parties, and property of the husband, so as to prevent oppression or extortion.($)

Form of the bill.

The bill sets forth the circumstances of the complainant's demand in the usual manner, and

may con

9. Form of the bill.

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