Provision is made in some of the states, for a reference of a pending action to referees. Under such statutes the report of the referee is essentially the same as the award of arbitrators.1

Arbitrators have jurisdiction of the law, and of the facts, under a general submission.2

A judgment on an award has the same force and effect as one rendered upon a trial of a cause in court.3 If an arbitrator is interested in the matter in controversy or not disinterested for other reasons, and this is unknown to the parties, or either of them, the award will be invalid. But such objection may be waived, and, if the parties consent that such interested party may act, an award made by him will be upheld.*

In some of the states it is held that an arbitrator must be sworn or his award will be invalid, unless the oath is waived by the parties. This is usually controlled by statute, in case of statutory arbitrations, and if the statute requires that the arbitrators be sworn, its provisions must be followed in this as in all other matters. But it is a requirement that may be waived by the parties. But generally it is held that the taking of the oath is not jurisdictional, and that the failure to take it does not render the proceeding wholly void."

78. NE EXEAT AND ARREST AND BAIL.-The writ ne exeat regno, or, in this country, ne exeat republica, is a writ in equity issued to restrain a defendant from quitting the state until bail is given to perform the decree of the

2 Ormsby v. Blakewell, 7 Ohio, 99; Ruckman v. Ransom, 23 N. J. Eq. 118; United States v. Farragut, 22 Wall. 406; Boston Water Power Co. v. Gray, 6 Met. 131; Johnson v. Noble, 13 N. H. 286; 38 Am. Dec. 485; Bigelow v. Newell, 27 Mass. 348.

3 Johnston v. Paul, 23 Minn. 46.

Connor v. Simpson, 7 Atl. Rep. 161; Baltimore & O. R. Co. v. Canton Co., 70 Md. 405; 17 Atl. Rep. 394.

5 Inslee v. Flagg, 2 Dutcher (N. Jer.) 368; 69 Am. Dec. 580; Combs v. Little, 3 Green Ch. 310; 40 Am. Dec. 207.

Hill v. Taylor, 15 Wis. 190; Woodrow v. O'Connor, 28 Vt. 776.

7 Elmendorf v. Harris, 35 Am. Dec. 592, note.

1

court. And as the writ is designed to procure bail upon giving security to answer the bill, where a discovery is necessary, and to abide the order and decree of the court, and to be amenable to the process issued to enforce the same, or in such other form as may be provided by statute, he is entitled to his discharge. But the writ has not been confined wholly to equitable remedies, but has been extended to cases of alimony decreed to a wife, and cases of account on which a balance is admitted by the defendant, but a larger claim is insisted on by the creditor.3

The demand for which the writ will issue must be certain in its nature, and actually payable, and not contingent or of an unliquidated nature, or in the nature of damages.

1 Anderson's Dic. of Law, 433; Adams' Eq. 360; Story's Eq. Jur., secs. 1464 et seq.; 16 Am. & Eng. Enc. of Law, 375; Gibert v. Colt, 1 Hopk. Ch. (N. Y.) 496; 14 Am. Dec. 557, 560, note; Moore v. Valda, 151 Mass. 363; 23 N. E. Rep. 1102; Rev. Stat. U. S., sec. 717; Lewis v. Shainwald, 48 Fed. Rep. 492; Cable v. Alvora, 27 Ohio St. 654; Forrest v. Forrest, 5 How. Pr. 125; De Rivafinoli v. Corsetti, 4 Paige Ch. 264; 25 Am. Dec. 532; Mitchell v. Bunch, 2 Paige Ch. 606; 22 Am. Dec. 669; Bonesteel r. Bonesteel, 28 Wis. 245; Dean v. Smith, 23 Wis. 483; 99 Am. Dec. 198; Rice v. Hale, 59 Mass. 238.

"The writ of ne exeat is a writ to restrain a person from quitting the kingdom without the king's license or the leave of the court. It is a high prerogative writ, and was originally applicable to purposes of state only, but is now extended to private transactions, and operates in the nature of equitable bail. It is grantable wherever a present equitable debt is owing, which, if due at law, would warrant an arrest, and also to enforce arrears of alimony in aid of the Spiritual Court, in respect of the inability of that court to require bail. It may be granted where there is a concurrent jurisdiction at law, e. g., on bills for an account, or for specific performance; but not where the claim is of legal cognizance alone." Adams' Eq. 360; Williams v. Williams, 3 N. J. Eq. 130.

2 Mitchell v. Bunch, 2 Paige Ch. 606; 22 Am. Dec. 669.

3 2 Story's Eq. Jur., sec. 1471; 16 Am. & Eng. Enc. of Law, 379; Gibert v. Colt, 14 Am. Dec. 560, note; Yule v. Yule, 10 N. J. Eq. 138; Bushnell v. Bushnell, 15 Barb. 399.

4

Story's Eq. Jur., sec. 1474; Adams Eq., 8th Ed., p. 360, note; 16 Am. & Eng. Enc. of Law, 375; Rhodes v. Cousins, 6 Rand. (Va.) 188; 18 Am. Dec. 715; Rice v. Hale, 59 Mass. 238.

"A writ of ne exeat can not be granted unless, 1st, there be a precise amount of debt due; 2d, it be on an equitable demand, on which the

The writ has become of less consequence than formerly by reason of constitutional provisions forbidding imprisonment for debt.' But it is still maintained notwithstanding these constitutional inhibitions, either as a distinctive writ or by statutory proceedings of arrest and bail, which are made applicable to both actions at law and proceedings in equity.2

It is generally held that constitutional provisions against imprisonment for debt do not prevent such imprisonment in cases of fraud or for torts. And some of the cases hold, without qualification, that the constitutional provisions against imprisonment for debt are not applicable to imprisonment under writs of ne exeat. But the remedy when provided by statute is usually confined to cases of fraud, either in the making of the contract or incurring the liability, or in concealing or removing property subject to execution, or to causes of action involving a breach of some fiduciary obligation, or for tort, and the like, the causes for which the writ may issue, or the defendant be arrested, in a proceeding for arrest and bail or ne exeat being different in the different states."

And statutes authorizing imprisonment for such causes

plaintiff can not sue at law, except in cases of account, and a few others of concurrent jurisdiction; and 3d, the defendant be about to quit the country, proved by affidavits as positive as those required to hold to bail at law." Adams Eq., 8th Ed., p. 360, note; Rhodes v. Cousins, 6 Rand. 188; 18 Am. Dec. 715.

1 16 Am. & Eng. Enc. of Law, 375.

2 Gibert v. Colt, 14 Am. Dec. 561, note; Cable v. Alvord, 27 Ohio St. 654; Dean v. Smith, 23 Wis. 483; 99 Am. Dec. 198.

3 Powers v. Davenport, 101 N. Car. 286; 7 S. E. Rep. 747; Baker v. State, 109 Ind. 47; 9 N. E. Rep. 711; McKindley v. Rising, 28 Ill. 337; Malcolm v. Andrews, 68 III. 100.

'Dean v. Smith, 23 Wis. 483; 99 Am. Dec. 198.

Swift v. The State, 63 Ind. 81; Cooper v. Hart, 18 Atl. Rep. 122; Wilbur v. Allen, 5 N. Y. Supl. 746; Valentine v. Richardt, 6 N. Y. Supl. 197; Powers v. Davenport, 101 N. Car. 286; 7 S. E. Rep. 747; Bridgers v. Taylor, 102 N. Car. 86; 8 S. E. Rep. 893; Baker v. State, 109 Ind. 47; 9 N. E. Rep. 711; Warner v. Bates, 75 Wis. 278; 43 N. W. Rep. 957; Hood v. Sudderth, 111 N. Car. 215; 16 S. E. Rep. 397; Malcolm v. Andrews, 68 Ill. 100.

are upheld as not in violation of the constitution. But notwithstanding the constitutional provisions against imprisonment for debt, the statutes of the several states have increased, rather than diminished, the classes of remedies in which an arrest of the defendant may be had, either under the writ of ne exeat or arrest and bail.2

The power of the federal courts and judges to issue the writ is limited by statute. The power to issue such writs is usually given to the judges or chancellors as well as to the courts. And sometimes the power is vested by statute in masters in chancery.

Very similar to this equitable remedy is that of arrest and bail, except that the latter is applicable to common law liabilities. Their objects and the purposes for which they may be maintained, as well as the principles by which they are controlled and regulated, are so nearly alike that they may very properly be considered together, although the means by which the creditor is secured is different under this and under the process of a common law court. The writ of ne exeat acts directly upon the person of the defendant, but its object is to coerce him to comply with the decree of the court when rendered."

Originally the common law remedy of arrest and bail was confined to civil injuries accompanied by force. But the remedy has been so changed and modified by statutes, both in this country and in England, that the old writ of capias, in either of its forms, whether to compel the ap

1 Baker v. State, 109 Ind. 47; 9 N. E. Rep. 711; In re Milburn, 59 Wis. 24; 17 N. W. Rep. 965.

2 McGee v. McGee, 8 Ga. 295; 52 Am. Dec. 407.

3 Rev. Stat. U. S., secs. 716, 717; Shainwald e. Lewis, 46 Fed. Rep. 839. Bassett v. Bratton, 86 Ill. 152.

5 Some of the differences between ne exeat and the common law remedy of arrest and bail will be found pointed out in Forrest v. Forrest, 5 How. Pr. 125, 131, in which case it is maintained, in opposition to the decisions in other states, that the code provisions authorizing and limiting arrest and bail have not superseded and abolished the writ. See also to the same effect, Bushnell v. Bushnell, 7 How. Pr. 389; 15 Barb. 399. See to the contrary, Ex parte Harker, 49 Cal. 465; Cable v. Alvord, 27 Ohio St. 654, 667.

Foulkes' Ac. in Sup. Court, 124; 3 Blk. Comm. 281.

pearance of the defendant, or to compel his imprisonment until the creditor's debt is satisfied, is no longer recognizable.'

In some of the states the writ has been replaced by statutory proceedings for arrest and bail, sometimes under the old name of ne exeat, and sometimes under the name of arrest and bail. And in some the writ of ne exeat is maintained and allowed, under statutory regulations, in certain classes of cases, and the statutory remedy of arrest and bail is allowed in certain other cases. Indeed, the proceeding by writ of ne exeat has become almost entirely statutory. And in some of the states the writ has been abolished and a purely statutory proceeding substituted for it.3

Code provisions, by which the distinctions between actions at law and suits in equity are abolished, and the civil action of such codes made to include both, do not, of themselves, deprive the courts of the power and jurisdiction exercised by courts of chancery in proceedings of this kind."

The proceeding when founded upon fraud is very similar to, and rests upon like principles as, the proceeding for attachment growing out of the fraudulent attempt or intent to remove property out of the jurisdiction of the court, and thus deprive the creditor of his remedy against such property when his judgment is obtained."

A complaint or petition must be filed showing such a cause of action as will authorize the issuance of the writ."

'Foulkes' Ac. in Sup. Ct. 124, 203; 1 Am. & Eng. Enc. of Law, 719,

720.

22 Work's Ind. Prac. & Pl., secs. 1292, 1453.

3 Ex parte Harker, 49 Cal. 465; Gibert v. Colt, 14 Am. Dec. 561, note; Cable v. Alvord, 27 Ohio St. 654, 667.

* In re Milburn, 59 Wis. 24; 17 N. W. Rep. 965; Bushnell v. Bushnell, 15 Barb. 399.

Fitzgerald v. Gray, 59 Ind. 254.

6 Saratoga Gas, etc., Co. r. Hazard, 7 N. Y. Supl. 844; Hillis v. Bleckert, 6 N. Y. Supl. 405; Bartlett . Sutornis, 6 N. Y. Supl. 406; 9 N. Y. Supl. 2; People v. Snaith, 10 N. Y. Supl. 589; Hanson v. Langan, 9 N. Y. Supl. 625; Moffat v. Fulton, 9 N. Y. Supl. 771; Ex parte Cohen, 6 Cal.