Lucas v. Hickman , 2 Stew. 111 ( 1829 )

By JUDGE CRENSHAW.

Where the action is purely legal, as ancillary to an action at law, it majr be laid down as a rule generally correct, that equity will not interfere.

In the case of Seymour v. Hazard,^e it was settled that the writ of ne exeat will not be granted for a debt due and recoverable at law; and that the writ was applicable only to equitable demands due in the nature of a debt.

In the case of Porter v. Spencer, ^f the same principle was recognized as being the uniform law, at least down to the time of Chancellor Eldon. In that case it is said that the writ would be denied if the demand was actionable at law; though the party was about to remove with his effects beyond the jurisdiction of the Court.

Since the time of Eldon however, the law seems to have undergone some change, and it is now well settled in the English Chancery, that in cases where the Courts of Law and Equity have concurrent jurisdiction, and the defendant. has not been held to bail in the action at law, the writ will be granted in aid and to give effect to the action at law.

The case of Porter v. Spencer, was indeed a peculiar and strong one, for the interposition of a Court of Equity. The action at law had been brought to recover the balance of an account; the defendant had been held to bail, and he and his bail were about to remove from the State permanently, without leaving any property behind. The Chancellor hesitatingly granted the writ, on the ground of the necessity of the case, and to prevent a failure of justice.

I think it obvious, that the Legislature of this State, by the act of 1823, did not intend to authorise the granting of writs of ne exeat in cases where the debt or demand was purely legal. °

The ninth section of the act provides “that it shall be lawful to grant writs of ne exeat, not only in cases where a sum of money is due, but also where the complainant has an equitable claim or demand against the defendant.”

Before the psssage of the act, it must have been considered that the writ of ne exeat could issue in cases only of an equitable nature, in which it was also necessary to swear to a sum certain; it seems to have been doubtful whether the writ could issue where the party could not swear that a sum certain was due, though the demand was equitable in its .nature. This doubt the Legislature intended to remove by the enactment of the law; and now authorises the writ to be granted in all cases of an equitable nature, whether a sum certain be due or not.

From what has been said, the following propositions are clearly deducible: 1. In cases where the defendant is about to remove beyond the jurisdiction of the Court, and the demand is exclusively of an equitable nature, whether a sum certain be due or not, the writ of ne exeat will be granted, on a sufficient affidavit. 2. Where the Courts of Law and Equity have concurrent jurisdiction, if the defendant is about to remove, and has not been held to bail in the action at law, the writ will be granted in aid, and to give effect to the action at law. 3. Where the two Courts have concurrent jurisdiction, and no action has been commenced at law, but suit has been instituted in equity, the writ will be granted if the party is about to remove. 4. Where from the extreme necessity of the case, and to prevent a failure of justice it becomes necessary, it also appears that the writ will be granted. But this fourth proposition, though it seems to be sanctioned by authority, I have .some hesitation in admitting to be law. “Extreme necessity, and to prevent a failure of justice,” appears to me to open a door too wide, even for the Chancellor’s discretion, and which in many instances may be liable to abuse.

In the' case before us, it does not appear that Hickman was removing with an intention of evading justice, or of defeating the operation of the judgment which might be ■obtained at law; and though removing out of the jurisdiction of the Court, it yet may have been his intention to pay the debt after the cause should be entirely settled. His removal to a place not distant, and where it would be nearly as convenient to pursue him with the judgment, as to bring suit here against his bail, cannot, of itself, furnish sufficient ground for equitable interposition.

In the foregoing opinion, the Court are unanimous.

Decree affirmed.

Judge White presided below, and did not sit.

e . 1 John. Ch. R.

f . 2 John. Ch. R. 169.