Georgia Lumber Co. v. Bissell

9 Paige Ch. 225, 1841 N.Y. LEXIS 568, 1841 N.Y. Misc. LEXIS 91

Opinion

The Chancellor.

As the complainants took out a subpoena with the first ne exeat and made a bona fide attempt to serve the same, and sent a new subpoena to Erie county to be served, immediately upon learning of the arrest of Bissell on the ne exeat at that place, there was no irregularity which entitles Bissell to have the writ of ne exeat set aside. The defendant, upon being arrested on that writ was apprised of the institution of the suit against him, and might at once have entered a voluntary appearance and demanded a copy of the bill. He cannot therefore complain that he has been prejudiced by the neglect to serve him with a subpcena the moment he was taken upon the ne exeat. The petition to discharge the writ, before answer, upon the affidavit that the complainants have no valid claim against him, must therefore be denied with costs.

The defendant, however, upon entering his appearance and giving notice of the same to the complainants’ solicitor, may have the usual order that the ne exeat be discharged, upon his executing a bond in the sum of $1600, with two sufficient sureties, to be approved of by a master on due notice to the adverse party, to answer the bill and to render himself at all times amenable to the process of the court.