Mitchell v. Bunch

2 Paige Ch. 606, 1831 N.Y. LEXIS 286, 1831 N.Y. Misc. LEXIS 95

• Court: New York Court of Chancery
• Decided: October 4, 1831
• Status: Published

Opinion

The Chancellor.

It is not necessary in this case to inquire, whether under the 39th section of the title of the revised statutes which relates particularly to this court and its proceedings, (2 R. S. 174,) real property, out of the jurisdiction of the court, can be applied in satisfaction of the complainant’s judgment. Independent of the statute, this is clearly a case in which the court has jurisdiction to compel a debt- or, whose body is exempt from execution at law, to discover his property, so that it may be applied in satisfaction of his just debts. The case made by the complainant’s bill, comes directly within the decision of Lord Hardwicke, in Edgell v. Haywood Dawe, (3 Atk. 352,) which decision I believe has never been questioned even in England; although the court of chancery there will not interfere in cases provided for by the bankrupt act, or where the plaintiff can by a real incarceration of the debtor compel him to apply all his property in payment of his honest debts. In that case, as in this, the defendant’s body could not be taken in execution; and the judgment was entered to be levied, of his property only. Whether the defendant has any part of his property vested in lands, and whether it is of that kind of property which can be reached by an execution at law, cannot be ascertained until the coming in of the answer. It will then be in time to raise the objection that this court cannot make a decree concerning real estate which is situated in a foreign country.

The original and primary jurisdiction of this court was in personam merely. The writ of assistance to deliver possession, and even the sequestration to compel the performance of a decree, are comparatively of recent origin. The jurisdiction of the court was exercised for several centuries by the simple proceeding of attachment, against the bodies of the parties, to compel obedience to its orders and decrees. Although the property of a defendant is beyond the reach of the court, so that it can neither be sequestered or taken in execution, the court does not lose its jurisdiction in relation to that property, provided the person of the defendant is within the jurisdiction. By the ordinary course of proceedings the defendant may be compelled either to bring the property in dispute, or to which the complainant claims an equitable title, within the jurisdiction of the court; or to execute such a conveyance or transfer thereof, as will be sufficient to vest the legal title, as well as the possession of the property, according to the lex loci rei sites. Thus in Penn v. Lord Baltimore, (1 Ves. sen. 444,) Lord Hardwicke decreed the specifice performance of a contract relative to the boundary between the colonies of Pennsylvania and Maryland. So in Archer v. Preston, cited by Lord Nottingham, and by Lord Keeper Guilford, in the case of The Earl of Arglasse v. Muschamp, (1 Vern. R. 77, 135,) the court decreed the specific performance of a contract respecting lands in Ireland ; the defendant being temporarily within the jurisdiction of the court. In Farley v. Shippen, (Wythe’s R. 135,) the court of chancery of Virginia decided that it had jurisdiction to decree a conveyance of lands lying in an adjoining state. That, although it could not award a sequestration against those lands in execution of the decree, it might award an attachment against the person of the defendant for a contempt in refusing to perform the decree. (See also Toller v. Carteret, 3 Vern. R. 494; Hughes v. Hall, 5 Munf. R. 431 ; Cranstown v. Johnson, 3 Ves. 170 ; 5 id. 277, S. C; Ear of Kildare v. Eustace, 1 Vern. R. 419; Earl of Derby v. Duke of Athol, 1 Ves. sen. 203 ; Guerrant v. Fowler Harris, 1 Hen. & Munf. R. 5; Messie v. Watts, 6 Crunch, 148 ; andd Ward v. Arredondo, 1 Hopk. 213.)

Although the question, how far the courts, of our country are authorized to proceed against foreigners temporarily" within their jurisdiction, in relation to contracts made, in another country, has been frequently raised, it appears, now to be well settled, both in this state and in England, that they have jurisdiction to enforce the performance of such contracts, where the party proceeded against is within the jurisdiction1 of .the court. And it makes no difference whether the defendant is actually domiciled here, or is temporarily within" the jurisdiction at the time of the service of the process to" appear and answer the plaintiff’s demand. (Sicard v. Whale, 11 John. R. 194. Peck V. Hozier & Mulock, 14 id, 346. Smith v. Spinolla, 2 id. 198. Imlay v. Ellefsen, 2 East’s R. 453.) Neither is this practice of entertaining suits against, or"' between foreigners of recent origin, or confined to the courts' of this country and of England. By referring to the Digest, it will be found that the courts of Rome not only took cognizance of suits between foreigners, but that a judge was specially authorized to discharge that duty. . The office of Praetor Peregrinus was created for the express purpose of administering justice between foreigners, or strangers, who resorted’ in great numbers to the imperial city; and perhaps also between strangers and citizens. Digest, lib. 1, tit. 2, fr. 2>- § 28.) And a similar office, and with substantially the same-powers, is said to have existed among the Athenians. (Taylor’s Civil Law, 211.) By the law of Holland, also, the-person of a foreigner may be arrested, either in securitatem debiti, or for the purpose of giving jurisdiction to a tribunal’ which is not the natural judge of the party, because he is not' domiciled within its jurisdiction. (Van Der Linden’s Inst: 430.) The meditatione fugce warrant of Scotland is also-used, as well for the purpose of securing the persons of strangers, temporarily, within the country, as to obtain security from those who intend to leave Scotland for the purpose of eluding the process of the court. (1 Bell’s Dict. tit. Arrestment. 2 id. tit. Meditatio, fugae. Ersk. Princ. 17.) By the French code, foreigners, not resident in France, may be cited before the tribunals of that country to enforce the execution of contracts entered into with Frenchmen, either in France or elsewhere. (Code Nap. lib. I, tit. 1, ch. 1.) And they may also be arrested on commercial contracts. In most of the countries, however, where the civil law prevails, it does not appear to be fully settled whether their courts can arrest a foreigner, who is only temporarily within the jurisdiction, at the suit of another foreigner, who is also a nonresident on a commercial contract made abroad. (See Janet v. Maidmont, and Scott v. Carmichael, 2 Bell’s Com. 564.)

In this court the writ of ne exeat is simply a means of obtaining equitable bail; and however liable it may be to abuse, when used politically as it formerly was in England, it is as harmless here as the ordinary process of the courts of common law, usually denominated bailable writs. Although in form it prohibits the defendant from going out of the jurisdiction of the court, yet it is a matter of course to discharge the writ, upon the party’s giving security to answer the complainant’s bill, where a discovery is necessary, and to abide such order and decree as may be made in the cause, and to render himself amenable to the process of the court, which may be issued to enforce the performance of the decree. Woodward v. Schatzell, 3 John. Ch. R. 412. Gibert v. Colt, 1 Hopk. R. 496. Russell v. Asby, 5 Ves. 96. Atkinson v. Leonard, 3 Bro. C. C. 218. Chitty on Prerog. 23.) If this court has jurisdiction of the cause, and the defendant intends to leave the state, so that the decree against him would necessarily prove ineffectual, the complainant has a right to this equitable bail, on producing proper evidence of that fact and of the actual existence of the equitable claim for which the suit is instituted.

In the English court of exchequer this writ is not used ; but an order for security, in the nature of a ne exeat or of equitable bail, is obtained upon motion. (1 Fowler’s Exc, Prac. 36, 203.) The form of the order in that court appears to be, that the defendant, within one week after service of the order, enter into a recognizance with proper sureties, not to depart the kingdom without putting in his answer and performing such decree or order as the court may thereafter make in the suit. (Attorney General v. Mucklow, 1 Price’s R. 289. Davis v. Heron, in 1753. id. 291, note.) In a cause before that court in 1724, such an order was made against a defendant, who resided at Oporto ; although, in another case against the same defendant, who had answered, and, I presume, had denied the equity of the complainant’s bill, the court refused the order. (Whitehead v. Murat, Bunb. R. 183.) The court of exchequer, in Ireland, have adopted the formal process of a ne exeat to obtain equiable bail. It issues under the exchequer seal, and is granted as a matter of course, when properly applied for, according to the 80th general rule of that court. ( Howard’s Eq. Side, 651, 2.)

As a general rule, this process is only issued for an equitable demand, and cannot be allowed on a mere legal claim. But, where there is a concurrent jurisdiction between the court of chancery and courts of common law, as in the case of bills for an account, it may be granted, although the defendant could have been arrested by process issued out of a court of law. (1 P. Wms. 263, n 1. Russell v. Asby, 5 Ves. 96. Jones v. Sampson, 8 id. 593. Jones v. Alephsin, 16 id. 470.)

In Baker v. Dumaresque, (2 Atk. 66,) Lord Hardwicke restrained a defendant from going out of the kingdom to the place of his abode, until he should give security to abide the decree. In Archer v. Preston, before cited, a ne exeat was granted against a defendant temporarily in England ; and in Atkinson v. Leonard, the writ was granted in favor of an inhabitant of Antigua, against a resident of the same place, who merely came to England with his wife for medical advice. In Howden v. Rogers, (1 Ves. & Beam. 129,) it was allowed against a defendant domiciled in Ireland ; and who only came to England, temporarily, on business. In the case of Flack v. Holm &f Ludert, (1 Jac. & Walk. 406, Lord Eldon granted a ne exeat against a Russian, who resided at St. Petersburgh, and for a debt contracted at that place as a commission merchant. And in the recent case of Grant v. Grant, (3 Russ. R. 598,) the writ was allowed against a resident of Jamaica, in respect of a debt contracted there, between persons who were resident at that place; although, by the laws of Jamaica, the defendant could not have been arrested for such debt.

In the case of De Carrier v. The Abbe De Callonne, (4 Ves. 578,) Lord Eldon discharged a ne exeat, granted by the master of the rolls, in favor of one French emigrant against another. But it was evidently on the ground that the debt was not due, according to the agreement and understanding of the parties, at the time the writ was allowed. In this court, in Woodward v. Schatzell, (3 John. Ch. R. 412,) Chancellor Kent, after a full examination of the cases, decided that the writ may be granted in the case of foreigners, and in respect to demands arising abroad. Chancellor Sanford came to the same conclusion in Gibert v. Colt, (1 Hopk. R. 496,) and granted a ne exeat against a citizen of Maryland, who was temporarily in this state.

If the complainant is entitled to this writ against a foreigner who is merely here for a temporary purpose, this appears to be a proper case to retain the process against the defendant. It is not denied that the complainant has a just and equitable demand against him, to the extent of nearly $80,000, including interest; and that the defendant has the means of paying the whole amount. But his property is in such a situation that the complainant cannot reach it, except by the aid of this court, and by detaining the defendant within its jurisdiction, to abide such order or decree as may be found necessary to compel him to apply his property in satisfaction of the complainant’s claim. In the language of Senator Allen, in Pettit v. Candler, (3 Wend. R. 625 ;) “What can be more reasonable than that every man possessing the means should pay his honest debts; and if he possess the means, and place them in a situation beyond the reach of legal process, is there any injustice in compelling him to render an account of the property thus fraudulently concealed Although the principal part of the defendant’s property is vested in a partnership with others, that does not discharge him from the moral obligation of applying it in satisfaction of the complainant’s debt, after all just claims of his copartners and the creditors of the firm have been provided for. This court will not require of him an impossibility. But so far as he can control his interest in the partnership funds, consistently with the laws of the country in which those funds are now placed, and without prejudice to the rights of others, he may be required to apply his interest in that species of property in satisfaction of the complainant’s debt.

The mere pendency of a suit in a foreign court, or in a court of the United States, cannot be pleaded in abatement, or in bar to a proceeding in a state court. If the complainant had proceeded to judgment there, it would indeed present a different question ; as the original judgment in the supreme court of this state, which forms the foundation of the complainant’s bill, would be merged in such new judgment. In Maule v. Murray, (7 T. R. 470,) the court of king’s bench refused to discharge a defendant, who had already been arrested and held to bail, in this state, for the same demand, And in Imlay v. Ellefsen, (2 East, 453,) the same court refused to discharge a defendant, who had already been hold-en to bail, for the same cause of action, in a suit in Norway. But, I apprehend, the principles of these decisions can hardly be extended to the circuit court of the United States, sitting within the limits of our own state. This court will judicially notice the- fact, that the arrest of the body of the defendant on mesne process in that court, is for the purpose of compelling him to pay the debt or to render himself in execution in satisfaction thereof; and that the proceeding in that court, in an action of debt on the judgment by which it will be finally merged in the new judgment to be obtained there, is wholly inconsistent with the proceeding by bill in this court to aid execution of the judgment of the supreme court.

It certainly cannot be necessary for the protection of this complainant’s rights, that the defendant should be compelled to give security in two different suits pending at the same time, in different courts, and for the recovery of the same •debt. The ne exeat must therefore be discharged, unless :the complainant, within ten days after notice of this or•der, consents to release the defendant from his arrest in the •circuit court, upon his entering an appearance or filing common bail in that suit. It is not necessary at this time to decide, whether this is a case in which the complainant may be compelled to elect in which suit to proceed ; as the notice is ■not properly framed to compel an election between this suit and that in the circuit court. But this court may excuse the defendant from giving bail in both suits, when one is sufficient for all the purposes of justice. If the complainant consents to relinquish the bail in the circuit court, the defendant may still be discharged from the ne exeat here, upon his giving the usual security to appear and answer the complainant’s bill, and to obey and abide such order and decree as may be made by this court in the premises. Such security to be approved of by the vice chancellor or injunction master of the first circuit ; on notice to the complainant, so that he may be heard in relation to the sufficiency of the sureties offered.