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The first is in the nature of process at common law, requiring the defendant to find surety of the peace, upon articles filed for the purpose by the plaintiff. It is sometimes used upon the complaint of a wife against her husband. In such case it is usual for her to file a bill of complaint stating her grievances, and the danger she is in of being injured, in which she prays the protection, which bill is called articles of peace. It must always be made on oath.'70 When the court obtains jurisdiction over the parties in such a case, the power of granting a maintenance and alimony to the wife is incident to it
, when the wife is compelled to live apart from him on account of his misconduct.
4015. A supplicavit may be had upon complaint and oath made of the party when any suitor of the court is abused and stands in danger of life, or is threatened with death by another suitor. By virtue of this writ the contemner is taken into custody and must give bail to the sheriff; he may move the court to discharge the writ of supplicavit, when the court will hear affidavits on both sides; but the truth of the articles cannot, in this preliminary investigation, be contradicted, either by affidavit or otherwise; but the defendant may either except to their insufficiency, or tender affidavits in reduction of the amount of the bail.171
4016. The writ of ne exeat regno 172 originated probably for the purpose of preventing a subject of the king of England from quitting the kingdom, when the king desired to have the control of his person. It was not unfrequently used in political cases. In the course of time it was used by the court of chancery in private cases for the purpose of securing the defendant when sued in that court upon an equitable right, so that it was in fact nothing more than a means of procuring equitable bail.173 .
The writ of ne exeat regno, or, as it is sometimes called, ne exeat regnum, or with us ne exeat republica, 174 is one issued by a court of chancery, 175 directed to the sheriff, reciting that the defendant in the case is indebted or liable to the complainant upon an equitable right, and that he designs going quickly into parts without the kingdom, to the damage of the complainant, and then commanding him to cause the defendant to give bail in a certain sum that he will not quit the kingdom without leave of the court, and for want of bail that he, the sheriff, do commit the defendant to prison. 176
The subject will be examined by considering against whom the writ of ne exeat may be issued, for what claims, what amount of bail will be demanded, when it may be issued.
4017. This is a writ of right, and not, as in England, a prerogative writ; in a proper case it may be issued against a foreigner, or a citizen of the state, or a citizen of another state.1
170 See the form of Articles of Peace in 1 Chitty, Pract. Pr. 679; 12 Ad. & E. 599. 171 13 East, 171. See Bacon, Abr. Surety of the Peace, E. See 1 Chitty, Pract. 683; Gilbert, For. Rom. 202; 2 Story, Eq. Jur. & 1477. See Codd v. Codd, 2 Johns. Ch. N. Y. 141.
172 See generally Beames, Ne Exeat Regno; Bacon, Abr. Prerogative, C; 1 Sharswood, Blackst. Comm. 138; Blake, Chanc. Pract.; Maddock, Chanc. Pract.; 1 Smith, Chanc. Pract. 576; Story, Eq. Jur. 3. 1464 to 1475.
173 Dunham v. Jackson, 1 Paige, Ch. N. Y. 629· Mitchell v. Bunch, 2 Paige, Ch. N. Y. 606; Johnson v. Glendenin, 5 Gill & J. Md. 463.
174 Porter v. Spencer, 2 Johns. N. Y. 169.
175 The district courts of the United States have no authority to issue the writ of ne ereat. Gernon v. Boccarine, 2 Wash. C. C. 130.
176 See a form of the writ in Beames, Ne Exeat, 18, 19; Rice v. Hale, 5 Cush. Mass. 338. And see generally, Bushwell v. Bushwell, 15 Barb. N. Y. 399; McGee v. McGee, 8 Ga. 295; Lehman v. Logan, 7 Ired. Eq. No. C. 296 ; Brown v. Haff, 5 Paige, Ch. N. Y. 235.
177 Gibert v. Colt, Hopk. Ch. N. Y. 496 ; Mitchell v. Bunch, 2 Paige, Ch. N. Y. 606; Woodward v. Shatzell, 3 Johns. Ch. N. Y. 412.
On the same principle which has been adopted in the courts of law, that a defendant cannot be held to bail twice for the same cause of action, it has been decided that a writ of ne exeat was not properly issued against the defendant, who had been held to bail in an action at law."
4018. The claim of the plaintiff upon which this writ can be issued must be:
For a precise amount of debt positively due, and the demand must be of a pecuniary nature. But where the claim is of such a nature that it is impossible to say what is the exact amount actually due, as in the case of an account, it is sufficient if the plaintiff swear positively to a debt or balance due him from the defendant; he is not required to swear to a certainty as to the amount. 179
For an equitable demand, for which the plaintiff cannot sue at law, except in cases of accounts, and when the court has concurrent jurisdiction with the courts of law. The writ will not lie in a case where the demand is of a general unliquidated nature, or in the nature of damages.180 The equitable debt need not have been created between the parties; it will be sufficient if it be fixed and certain ; as, where the plaintiff is the assignee of a chose in action.
The defendant must be about to quit the country, and this fact must be proved by affidavits as positive as those required to hold to bail at law.
When the demand is strictly legal the writ cannot be issued, because the court has no jurisdiction. And whenever the writ of ne exeat is claimed, the plaintiff's equity must appear on the face of the bill.
4019. Not only will a writ of ne exeat lie on an equitable claim, but in some other cases, which may be considered as exceptions to the rule.
This writ may be had in the case of alimony decreed to a wife, when the husband is about to leave the country."
It may be obtained in the case of an account on which a balance is admitted by the defendant, but a larger claim is insisted on by the creditor. 183
4020. A bill showing a proper case must be filed, and it must pray for the writ of ne exeat. When it is allowed, the court fixes the amount of the bail or security to be given; in doing so, a due regard is had to the security of the plaintiff; at the same time, the court will take care that the defendant shall not be oppressed. A sum is fixed usually sufficiently large to cover the existing debt, and a reasonable amount of future interest, having regard to the probable duration of the suit.184
4021. The mode of obtaining a writ of ne exeat is by filing a bill containing a prayer for the writ. But, if after a bill filed, the plaintiff
has just reason to a believe the defendant will go abroad, he may move to amend his bill, and pray a ne exeat.185 The writ may be obtained at any stage of the suit.186
This writ is usually granted by the court of chancery, or by the chancellor when such an officer exists. It is provided by act of congress 187 that “writs of ne exeat may be granted by any judge of the supreme court of the United States
178 Jones v. Sampson, 8 Ves. Ch. 594. 179 Thorne v. Halsey, 7 Johns. Ch. N. Y. 180. See Williams v. Williams, 2 Green, Ch. N. J. 130.
180 Smedberg v. Mark, 6 Johns. Ch. N. Y. 138; De Rivafinelli v. Corsetti, 4 Paige, Ch. N. Y. 464; Mattocks v. Tremaine, 3 Johns. Ch. N. Y. 75.
181 Rhodes v. Cousins, 6 Rand. Va. 188; Lucas v. Hickman, 3 Ala. 11.
in cases where they may be granted by the supreme or a circuit court. But no writ of ne exeat shall be granted unless a suit in equity be commenced, and satisfactory proof shall be made to the court or judge granting the same that the defendant designs quickly to depart from the United States."
4022. Having taken a rapid view of the nature and principles of equity by examining its general rules and maxims, and having considered the cases in which aid will be given by courts of equity, classified into those, first, in which those courts will exercise jurisdiction in aid of courts of law, which is called assistant jurisdiction; second, those cases where, having a more specific, certain, and better remedy, they will exercise their authority when courts of law afford but an imperfect remedy: this is denominated their concurrent jurisdiction; and, third, when there is no remedy at law, but an effective one can be had in equity, which is their exclusive jurisdiction, our next consideration will be to ascertain and point out in a succinct manner the forms and proceedings in equity.
THE PARTIES TO A SUIT IN EQUITY.
4024. Importance of proper selection of parties. 4025–4038. The persons qualified and disqualified as parties.
4025. Persons qualified to be parties to suits in equity. 4028–4038. Persons who are disqualified from suing.
4029. Absolute incapacity to sue in equity. 4032–4038. Partial incapacity to sue in equity.
4033. The incapacity of infants.
4038. The incapacity of idiots and lunatics. 4039-4093. The proper parties to a bill in equity. 4040–4064. Who must be made plaintiffs. 4041-4055. The general rule.
4042. Parties plaintiffs relating to property in trust.
4051. Parties in cases of administration. 4052-4054. Parties in cases of mortgages.
4053. The parties to a bill to redeem.
4055. When the government ought to be a party.
4058. When the question is of general interest.
4064. When all interested cannot be made parties. 4065–4081. Who must be made parties defendant. 4066–4077. Persons immediately interested.
4067. Parties defendant relating to trusts.
4073. Against whom a bill for an account should be brought. 4074–4077. Parties defendant in cases of mortgages.
4075. The proper parties as defendants to a bill to redeem.
4077. The proper parties as defendants to a bill to foreclose. 4078-4081. Persons consequentially interested in resisting the plaintiff's claim.
4079, Cases of joint obligors and sureties.
4081. Persons who are bound to indemnify.
4084. Agents, witnesses, and the like, not to be made parties.
4091. Claimants by paramount title.
4023. After considering in the first part of this book the principles and rules of equity, the assistant, concurrent, and exclusive jurisdiction of courts of chancery, it will be proper in this second part to take a short view of the remaining subjects connected with equity. In this examination we shall consider consecutively the parties to a suit in equity, bills in equity, proceedings between filing the bill and the defence, the defence, the replications and their consequences, the incidents to pleading in general, and the proceedings after pleadings.
4024. Before instituting a suit in equity it is of great importance to consider who ought to be made plaintiffs or who should answer as defendants, for a fault committed in the selection of parties may prove fatal, and will always cause inconvenience. Some persons are qualified and others wholly unqualified to be parties to suits in equity; and of those qualified some ought to bring the suit, and others ought to join or not join with them; and some persons ought to be made defendants, and others cannot be joined with them. We shall examine the rules which apply in determining, first, the persons qualified and disqualified as parties ; second, the proper parties to a bill.
4025. In general, all persons sui juris can sue and be sued in chancery, unless they are subject to an absolute or temporary disqualification, which will be presently considered. There is no distinction among such persons; all, what
. ever be their condition, from the highest to the lowest, may sue and be sued in equity as they may sue and be sued at law.
4026. The government, or, as the style is in England, the crown, may sue in a court of equity not only strictly on its own behalf, for its own peculiar rights and interests, but also on behalf of the rights and interests of those who partake of its prerogatives or claim its peculiar protection. In these cases the suit is
' instituted by the proper public officer, to whom that duty is entrusted by law, and this is usually the attorney general. When the attorney general sues on behalf of the government for a claim due to the state, the public officer sues in his own official name, without joining that of any other person. On the contrary, when he sues for the benefit of a person who partakes of its prerogative, or is under its peculiar protection, or the subject matter is publici juris, then the suit is brought in the name of the attorney general, who sues at the relation of some other person who is named as relator in the bill; the person thus made a party has no control over the proceedings, and is responsible for costs.
It must be remembered that, although the government may sue, it is not liable to be sued. But to this general rule there is an exception; in some cases one of the states of the Union may file a bill in the supreme court of the United States against another state.*
4027. Bodies corporate may sue by themselves alone, and in their own names exhibit a bill of complaint in a court of equity. On the other hand, they may be sued, and the officers or servants of a corporation may be made parties for the purpose of eliciting from them a discovery upon oath of the matters charged in the bill.6
Cooper, Eq. Pl. 21, 22; Story, Eq. Pl. & 49; 1 Daniell, Chanc. Pract. 3.
Story, Eq. Pl. 28; 1 Daniell, Chanc. Pract. 3, 7. * Fowler v. Lindsay, 3 Dall. 411; New Jersey v. New York, 5 Pet. 284; Rhode Island v. Massachusetts, 12 id. 657; Missouri v. Iowa, 7 How. 660.
6 Mitford, Eq. Pl. Jeremy, ed. 24.
• Anon. 1 Vern. Ch. 117; Wych v. Meal, 3 P. Will. Ch. 310; Moodaley v. Morton, 1 Brown, Ch. 469.