Woodward v. Schatzell

3 Johns. Ch. 412, 1818 N.Y. LEXIS 196, 1818 N.Y. Misc. LEXIS 34

• Court: New York Court of Chancery
• Decided: August 17, 1818
• Status: Published

Opinion

The Chancellor.

As the defendant is a resident in Kentucky, and as the transactions upon which the demand of the plaintiff is founded, took place there, it might be made a question whether the ne exeat ought to apply to the case. Lord Eldon, in Dick v. Swinton, (1 Ves. & Bea. 371.) observed, that “this writ was a most powerful instrument, and he never applied it, without apprehension.” But upon a review of the cases, I think the jurisdiction and practice of the court are settled in favour of the writ, xvhen applied even to the case of foreigners, and to demands arising abroad.

Lord Thurloio observed in Atkinson v. Leonard, (3 Bro. Ch. Cas. 222.) that Lord Northingtoji thought this process ought not to be extended to foreigners; yet, in that very case, Lord Thurlow allowed it, in favour of one inhabitant of the island of Antigua .against another; and he afterwards, upon argument, consented to discharge the writ, on condition that the defendant gave sufficient security to abide the decree. So, also, in a much' earlier case, (Whitehead v. Murat, Bumb. 183,) the Court of Exchequer obliged a defendant, who xvas a foreigner, to give security to abide the decree until answer and farther order. The xvrit was also allowed to one foreigner against another, in De Carriere v. De Calonne, (4 Ves. 577.) but Lord Rosslyn, admitted, that it was “ very delicate to interfere as against foreigners, whose occasions or misfortunes had brought them here, by an application of this xvrit to them,” and he thought it ought to be simply a case of equity, affording no ground to sue at law.

Lord Hardwicke is stated to have said, in Robertson v. Wilkie, (Amb. 177, Dickens, 786. S. C.) that it was a reason with him not to grant the writ where the defendant lived'out of the kingdom, and the transaction was on the faith' of having justice where he resided. But in that case, the parties were partners, and the plaintiff resided in London, and the defendant in Minorca, and the balance of accounts were sworn to, and the me exeat allowed, and after-wards discharged, on the defendant giving security in a mitigated sum to perform the decree.

These cases are all decidedly in favour of the writ, or its substitute, security to abide the decree.

So, again, in Roddam v. Hetherington, (5 Vesey, 91.) the me exeat was allowed in favour of a resident in England against a resident in the West Indies, upon a demand arising there, and the counsel for the defendant would not raise the objection, that the defendant resided abroad, because, as they observed, Lord Thurlow, in Atkinson v. Leonard, after a considerable discussion, had overruled that objection. In Howden v. Rogers, (1 Ves. and Bea. 129.) the writ was granted against a defendant resident in Ireland, who came to England only for a temporary purpose; and though the demand arose in Ireland, Lord Eldon said he could not (C distinguish that case from Atkinson v. Leonard, and several subsequent cases, from the West Indies, from Scotland, and from Ireland.' The question was, whether he had any discretion to refuse the writ, a question upon which he was bound by those decisions, and the utmost he could do for the defendant’s relief was to discharge him on giving security to abide the decree.”

The real point, then, in this case is, whether the plaintiff, shows sufficient equity on the face of his bill to sustain the writ, and I incline to "think he does not, and that a t proper case ought to be made out to my entire satisfaction. The defendant has strictly done nothing which he was not .authorized to do as a partner; and though the plaintiff apprehends that the defendant may misapply the funds and abuse his trust, yet no such acts have actually taken place, and the accounts have not been settled. It does not appear to me that the mere apprehensions of the plaintiff will warrant the ne exeat, or even the injunction restraining the defendant from interfering with the partnership .accounts and effects.

Motion denied.