had taken upon themselves that office they were compellable by the prætor to make an award. "Quisquamne potest negare, æquissimum fore, prætorem interponere se debuisse, ut officium, quod in se recepit, impleret. Et quidem arbitrum cujuscunque dignitatis coget officio, quod susceperit, perfungi." In this respect, there is a marked distinction between our law and the civil law.2

CHAPTER XLI.

WRITS OF NE EXEAT REGNO AND SUPPLICAVIT.

[* § 1464. Remedies affecting exclusive jurisdiction in equity.

§ 1465. Origin of writ of Ne exeat regno.

§ 1466. Regarded as one of the prerogatives of the crown.

§ 1467. When first resorted to as a civil remedy.

§ 1468. Applied in such cases with caution.

§ 1469. Merely a civil remedy in America.

§ 1470. In the nature of equitable bail.

§ 1471. Applied also to cases of alimony and account.

§ 1472. How its exercise, in cases of alimony, is regulated.

§ 1473. In account, is granted on ground of concurrent jurisdiction.

§ 1474. In equitable demands must be absolute and liquidated.

§ 1475. How regulated, where parties are foreigners.

§ 1476. Definition of writ of supplicavit.

1477. This is a remedy for breach of privilege of protection of court.

§ 1478, 1479. Issues of law, and of fact, may be sent to courts of law.

§ 1479 a. Result treated as conclusive of rights of parties, unless good reason be shown.]

1464. HAVING thus reviewed most of the branches of the exclusive jurisdiction of courts of equity, which arise from, or are dependent upon, the subject-matter of the controversy, we are next led to the consideration of those branches of exclusive jurisdiction, which arise from, or are dependent upon, the nature of the remedy to be administered.

The peculiar remedies in equity in cases of concurrent jurisdiction, have already been fully discussed; and much, therefore, which would otherwise be appropriate for remark in this place, has been already anticipated. The peculiar remedies connected

1

1 Dig. Lib. 4, tit. 8, 1. 3, § 1, 3; Kyd on Awards, 98, 99, and note (2d London edit.). Ante, § 1457.

2

with the exclusive jurisdiction in equity seem to be principally the process of bill of discovery, properly so called; the process of bill for perpetuating evidence; and the processes, called the writ of NE EXEAT REGNO, and the writ of SUPPLICAVIT. The two former are properly embraced in what is called the auxiliary or assistant jurisdiction of courts of equity; and will, therefore, be reserved for examination thereafter. The two latter will be discussed in the present chapter.

§ 1465. The writ of Ne exeat regno, or, as it is sometimes termed, Ne exeat regnum, is a prerogative writ, which is issued, as its name imports, to prevent a person from leaving the realm.2 It is said that it is a process unknown to the ancient common law, which, in the freedom of its spirit, allowed every man to depart the realm at his pleasure. Its origin is certainly obscure. But it may be traced up to a very early period, although some have thought that its date is later than the reign of King John, since, by the great charter granted by him, the unlimited freedom to go from and return to the kingdom at their pleasure, was granted to all subjects. "Liceat unicuique de cætero exire de regno nostro, et redire salvo et secure per terram et per aquam, salva fide nostra, nisi tempore guerræ, per aliquod breve tempus, propter communem utilitatem regni."4 The period between the reign of King John and that of Edward I. has been accordingly assigned by some writers as the probable time of its introduction. A proceeding somewhat similar in its nature and objects, though not in the pre

The authority to award an issue to be tried by a jury, though a peculiar remedy, is an incident both to the concurrent and the exclusive jurisdiction of courts of equity. The granting or refusing of such an issue, is, in all cases, except in questions of the validity of wills (ante, § 184, 1446), a matter of discretion; and is designed merely to assist the conscience of the court in deciding upon some matter of fact. It seems, rather, therefore, to belong to the practice of the court than to constitute a part of its peculiar jurisdiction. See, on this subject, O'Connor v. Cook, 8 Ves. 536; Short v. Lee, 2 Jac. & Walk. 496, 497; Jeremy on Eq. Jurisd. B. 3, ch. 1, § 2, p. 295 to 299; 2 Fonbl. Eq. B. 6, ch. 3, § 7, and notes (t), (u); Matthews v. Warner, 4 Ves. 206; Lancashire v. Lancashire, 9 Beavan, 259.

"Beames on Ne Exeat, p. 1; 1 Black. Comm. 137, 266. Most of the materials, which are contained in this chapter, have been drawn from the concise, but perspicuous treatise of Mr. Beames, entitled, "A Brief View of the Writ of Ne Exeat Regno, London, 1812." I have not omitted, however, to compare the observations of the author with the original authorities.

3 Beames, on Ne Exeat, p. 1.

4 Ibid. p. 3.

cise form of the modern writ, is distinctly mentioned by Fleta and Britton; and the statute of 5 Rich. II. (ch. 2, § 6, 7) prohibited all persons whatsoever from going abroad, excepting lords and great men, and merchants and soldiers.2

§ 1466. In Fitzherbert's Natura Brevium, two forms of writs are given against subjects leaving the realm without license, the one applicable to clergymen, and the other to laymen. And it is there remarked by Fitzherbert, that, by the common law, every man may go out of the realm at his pleasure, without the king's leave; yet, because every man is bound to defend the king and his realm, therefore the king, at his pleasure, by his writ, may command a man, that he go not beyond the seas, or out of the realm, without license; and, if he do the contrary, he shall be punished for disobeying the king's command. From this language, it may be inferred, as his opinion, that the right of the king was a part of the common law, not at all incompatible with the ordinary right of the subject to leave the realm; but a restriction upon that right, which might be imposed by the crown for great political purposes. This is manifestly the view of the matter taken by Lord Coke, who deems it a part of the prerogative of the crown, at the common law, and not dependent upon any statute pro bono publico regis et regni.5

$1467. Be the origin of this writ, however, as it may, it was originally applied only to great political objects and purposes of state, for the safety or benefit of the realm. The time when it was first applied to mere civil purposes, in aid of the administration of justice, is not exactly known, and seems involved in the like obscurity as its primitive existence. It seems, however, to have been so applied as early as the reign of Queen Elizabeth.

1 Fleta, 383, § 1, 2; Britton, ch. 112, cited in Beames on Ne Exeat, p. 4, 5. 2 Beames on Ne Exeat, p. 6.

3 Fitz. Nat. Brev. 85.

* 2 Co. Inst. 54; 3 Co. Inst. ch. 84, p. Ex parte Brunker, 3 P. Will. 312; Jac. & Walk. 405, 413, 414.

4 Fitz. Nat. Brev. 85.

178, 179; Com. Dig. Chancery, 4 B. Anon., 1 Atk. 521; Flack v. Holm, 1

7 Tothill, in his transactions (p. 136), mentions three cases, one in the 32d of Elizabeth, and two in the 19th of James I. See also Beames, Ord. of Chanc. p. 40, note (148); Beames on Ne Exeat, p. 16. Lord Chancellor Talbot, in Ez parte Brunker (3 P. Will. 312), said: "In all my experience, I never knew this writ of Ne exeat regno granted or taken out, without a bill in equity first filed." It is true, it was originally a State writ; but for some time (though not very

In the reign of King James I. it seems to have been so firmly established, as a remedial civil process, grantable in chancery, that it was made the subject of one of Lord Bacon's Ordinances. It is there declared, that "Writs of Ne exeat regnum are properly to be granted according to the suggestion of the writ in respect of attempts prejudicial to the king and state; in which case the Lord Chancellor will grant them, upon prayer of any of the principal secretaries, without cause showing, or upon such information as his lordship shall think of weight. But, otherwise also, they may be according to the practice of long time used, in case of interlopers in trade, great bankrupts, in whose estates many subjects are interested, or other cases that concern multitudes of the king's subjects; also in case of duels and divers others."1

§ 1468. The ground, then, upon which it is applied to civil cases being, as is here stated, custom or usage, it has been in practice uniformly confined to cases within the usage, and therefore, it is perhaps impossible to expound its true use or limitation upon principle? It has been strongly said, that it is applied to cases of private right with great caution and jealousy.

§ 1469. The writ of Ne exeat regno is also in use in America, where it is treated not as a prerogative writ, but as a writ of right in the cases in which it is properly grantable. But, generally, the same limitations which are imposed as to the remedy in England, exist in our present practice. In short, the writ and its attributes are almost entirely derived from the English authorities and practices. [And it may be granted against foreigners temporarily within the jurisdiction of the court, as well as others.5]

long), it has been made use of in aid of the subjects, for the helping them to justice. But still as custom has allowed this latter use to be made of it, it ought to go no further than can be warranted by usage, which always has been to have a bill first filed." A copy of the modern writ will be found in Beames on Ne Exeat, p. 19, 20, and Hinde's Practice, p. 613.

1 Beames, Ord. in Chanc. p. 39, 40, Ord. 89; Beames on Ne Exeat, p. 16, 17. 2 Ex parte Brunker, 3 P. Will. 313; Etches v. Lance, 7 Ves. 417; De Carriere v. De Calonne, 4 Ves. 590.

3 Tomlinson v. Harrison, 8 Ves. 32; Whitehouse v. Partridge, 3 Swanst. 379. Rice v. Hale, 5 Cush. 238, where the form of the writ is set out. Bushnell v. Bushnell, 15 Barbour, 399; Forrest v. Forrest, 10 id. 46; McGee v. McGee,

Gibert v. Colt, 1 Hopk. Ch. 496. And see Woodward v. Schatzell, 3 Johns. Ch. 412.

§ 1470. In general, it may be stated, that the writ of Ne exeat regno will not be granted, unless in cases of equitable debts and claims; for, in regard to civil rights, it is treated as in the nature of equitable bail. If, therefore, the debt be such as that it is demandable in a suit at law, the writ will be refused; for, in such a case, the remedy at law is open to the party.2 If bail may be required, it can be insisted on in the action at law; if not required at law, that furnishes no ground for the interference of a court of equity, to do what in effect, as to legal demands, the law inhibits.3 [And it has been held, that, if the party against whom this writ is prayed for has previously been held to bail, and regularly discharged, the writ will not be granted.*]

§ 1471. It has been said in the preceding remarks, that, in general, the writ of Ne exeat regno lies only upon equitable debts and claims. There are to this general statement two recognized exceptions, and two only. The one is a case of alimony decreed to a wife, which will be enforced against her husband by a writ of Ne exeat regno, if he is about to quit the realm;5 the other is the

8 Geo. 295; Lehman v. Logan, 7 Ired. Eq. 296; Brown v. Haff, 5 Paige, 235. By the Act of Congress, of 2d March, 1793, ch. 22, § 5, it is provided that "Writs of Ne exeat may be granted by any judge of the Supreme Court of the United States 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."

1 Beames on Ne Exeat, p. 30; Seymour v. Hazard, 1 Johns. Ch. 1; Ex parte Brunker, 3 P. Will. 312; Atkinson v. Leonard, 3 Bro. Ch. 218; Jackson v. Petrie, 10 Ves. 163, 165; Whitehouse v. Partridge, 3 Swanst. 377 to 379; Dawson v. Dawson, 7 Ves. 173; Haffey v. Haffey, 14 Ves. 261; Stewart v. Graham, 19 Ves. 313, 314; Hyde v. Whitfield, 19 Ves. 344; Flack v. Holm, 1 Jac. & Walk. 405, 413, 414; Jenkins v. Parkinson, 2 Mylne & Keen, 5. In Wyatt's Practical Register, p. 289, it is said: "It is now mostly used, where a suit is commenced in this court against a man, and he, designing to defeat the other of his just demand, or to avoid the justice and equity of this court, is about to go beyond sea, or however, that the duty will be endangered, if he goes." The usual affidavit, on which the writ is granted, states both of these facts. Beames on Ne Exeat, p. 26 to 28.

2 Ibid.; Dawson v. Dawson, 7 Ves. 173; Russell v. Ashby, 5 Ves. 96; Blaydes v. Calvert, 2 Jac. & Walk. 211, 213; Smedberg v. Mark, 6 Johns. Ch. 138. 3 Porter v. Spencer, 2 Johns. Ch. 169, 170; Crosly v. Marriot, 2 Dick. 609; Gardner v. 15 Ves. 444. Pratt v. Wells, 1 Barb. 425.

Read v. Read, 1 Ch. Cas. 115; Shaftoe v. Shaftoe, 7 Ves. 71; Dawson v. Dawson, 7 Ves. 173; Anon., 2 Atk. 210; ante, § 1425, note (2).