Smedberg v. Mark — 6 Johns. Ch. 138

Majority

p. 138

Smedberg against Mark, Executor of Mark.

Headnote

A writ of ne exeat república will not be granted, where the plaintiff’s demand is purely legal, or where the defendant is an executor or administrator, and there is no affidavit that assets have come to his hands.

BILL for a writ of ne exeat, charging that the defendant is sued at law, as executor, on a bill of exchange, indorsed by the testator, and protested for non-acceptance and non-payment; and that the defendant threatens to go abroad, and that the debt will be endangered, &c.

C. I. Graham, for the plaintiff.

The Chancellor denied the application, on the ground that the demand was purely legal, and not of equitable cognizance; and, also, because there was no charge or affidavit that assets had come to the hands of the defendant. This last fact was held to be indispensable by Lord Hardwicke, (Anon. 2 Vesey, 489.) as the demand arises in auter droit, and it would otherwise be holding one to bail, who would not" be held to bail at law.

Motion denied.