Woodward v. Schatzell — 3 Johns. Ch. 412

Majority

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Woodward against Schatzell and others.

August 17.

Headnote

A writ of ne exeat republics may issue against a foreigner, or citizen of anoth - er state, and on demands arising abroad; but the writ will be «Uncharged oc "the defendant’s'giving security to abide the decree.

To sustain the writ, sufficient equity must appear on the face of the bill. Mere apprehension that the defendant will misapply funds in his hands, or abuse his trust, is not sufficient.

GARR, ■ for the plaintiff moved for a writ of ne exeat and injunction.

The bill stated that on the 1st of September, 1815, the plaintiff and Alexander Cranston of New-York, Andrew Alexander of Belfast, in Ireland, and the defendant S. of Lexington, in Kentucky, entered into partnership for the purpose of transacting mercantile business in Kentucky. That the plaintiff was to receive one third of the real profits. That large sums were advanced by the other two partners, and 13,000 dollars by the plaintiff. That the plaintiff conducted the business, part of the time in Kentucky, and the defendant S. part of the time. That the defendant S. dissolved the partnership on the 24th of September last, on the previous request of the other partners. That the defendant S. in October last, sold at auction, partnership effects to the amount of 11,500 dollars, on six months’ credit. That the defendant S. closed the accounts in the Kentucky banks, and transferred the partnership balances to his own credit. That the partnership owned other large property standing in the name of the defendant S. That the defendant S. designs to retain the sole use and control of the partnership effects; that he will be unable to respond, if the effects shmdd be misused. and not duly applied; and that he intends to delay dosing

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the accounts, and will withold from the plaintiff his just share.

Prayer for a ne exeat, and for an injunction restraining the defendant 8. from farther interfering with the effects, &c.

Affidavit that the defendant S. intends to depart for Kentucky, and is indebted to the plaintiff in 12,000 dollars.

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

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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 Lon don, 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

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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.