Fitch v. Richardson , 1 Morris 245 ( 1843 )

Per Curiam,

Mason, Chief Justice.

(Judge Williams was not on the bench when this case was argued and heard.)

The first objection raised here to the proceedings below is, that the cause was prematurely heard on bill and answer. This objection is confined to the proceedings in relation to the writ of ne exeat; for in relation to the injunction, the statute in confirmation of the previous law, expressly gives the right to move lor a dissolution upon the filing of an answer. Laws of 1838-9, p. 353. The seventh section of the act in relation to ne exeats and injunctions, provides that “ oh the return of the writ of ne exeat, if the same shall have been duly served, the court shall proceed therein, as in other cases in chancery, if the matters alledged in said bill be purely of an equitable character, and the time of performance of the duty or obligation of the defendant has expired ; if not, then the proceedings shall be stayed until it has expired. But the court may nevertheless proceed to determine whether the said writ ought not to be quashed or set aside.”

Had the proceedings in this case been upon the merits prior to the time for the performance of the duty or obligation, and had the objection been raised by the defendant, it would certainly have been available. On the return of a writ of ne exeat, if the matters charged in the bill are of an equitable character, the court is authorized to try and determine the whole matter in controversy without the intervention of a separate proceeding for that purpose. But as it would be unjust to the defendant to compel him to incur the trouble and expense of defending himself against a suit in chancery before the, time;when his liability arises in pursuance of his agreement, the statute declares''that the proceedings shall be stayed until the proper time shall arrive. This is an arrangement peculiarly for the defendant’s benefit, for at the same time he may proceed to have the writ quashed or set aside, if the circumstances of the case will authorize such proceeding.

In the present case, theerecord states”that the cause came on to be heard upon the bill answer replication and exhibits, but still the merits of the case were not tried. No valid objection can therefore be urged that the cause was prematurely heard. The injunction was dissolved as is usual where the answer denies the equity of the bill, and no steps are taken pursuant to the statute to rebut the allegations of the answer.

But the writ of ne exeat was quashed by the court. Perhaps it would have been more technically correct to have made the entry that the writ was set aside. That order would have been literally within the rules of chancery practice, if the proper case were made for it by the answer. See 2 Maddock’s Chancery, 230, also laws of 1838-9, p. 352. There is however, no substantial error in the record in this respect, which would authorize the interposition of this court.

The second objection that there was no affidavit of defendant on which he could at any time predicate a motion to quash, has been sufficiently answered by what has already been said. The filing of the answer is the basis for the motion to set aside the writ.

The third objection that there was no written notice filed, is one which cannot be noticed by this court, that being a subject over which the District Courts have supreme control. They make their own rules and must enforce them in their own way.

The decree of the District Court in this matter, will therefore be affirmed.