Gibbs v. Mermaud

2 Edw. Ch. 482

• Court: New York Court of Chancery
• Decided: June 23, 1835
• Status: Published

Opinion

The Vice-Chancellor:

Upon the authority of the cases collected in 1 Hovenden’s Supp. 352, (n. 3,) a writ of ne exeat can issue only where there is a money demand, as a debt due which can be verified positively by affidavit or in a matter of account upon belief as to the balance. A surety may have relief in this court, in some cases, against his principal, where the debt has become due, by compelling the principal to discharge the debt in exoneration of the surety. The cases of Ranelagh v. Hayes, 1 Vern. 189; Antrobus v. Davidson, 3 Meriv. 569, are to this effect: but how is the court to decree payment in this case ? to whom is the payment to be made ? and where is the creditor who is to receive it. Neither the king in person, nor the officers of his government can be compelled to come to this court for the money. Even if an effectual mode of relief could be devised, it does not follow, according to the English practice, that a w-rit of ne exeat is incidental to that relief. The parties are both subjects of the king of Great Britain; and the complainant must be .satisfied if the same rules are applied which would govern the decision of this motion were they before an English court of chancery.

The motion to discharge the writ is therefore granted.