20

affidavit or a petition.19 Whenever the writ is applied for upon petition, the petition should contain the same facts as are required to be stated in an affidavit for that purpose. The affidavit should state positively the facts upon which the writ is sought. It should show that the defendant intends going abroad, and it must be positive upon this point, or to his threats or declarations to that effect, or to facts evincing it from circumstances amounting to it.21 It must state positively the existence of a debt, except where it is a matter of account, when an affidavit of actual indebtedness, with a belief of a balance being due, stating such facts and circumstances as the ground of belief as to induce the court to think that the belief is well founded, is sufficient.22 It must state that the demand will be endangered by the defendant's going abroad.23 It need not be stated that the defendant is going abroad for the purpose of avoiding the payment of the debt. If it can be collected that it is the intention of the party to go abroad before the debt can be got out of his hands, it is a case in which, in the exercise of sound discretion, the writ ought to issue.24 The facts on which the debt arises, and on which it is grounded, must be stated.25 The affidavit may be made by any person familiar with the facts.26 An affidavit to obtain this writ may be made by the

19 1 Barbour, Ch. Pr. 649.

20 1 Barbour, Ch. Pr. 650.

21 1 Barbour, Ch. Pr. 649; Beames, Ne Exeat, 33, 34; Jackson v. Petrie, 10 Ves. 164; Mattocks v. Tremain, 3 Johns. Ch. (N. Y.) 75; Parker v. Parker, 12 N. J. Eq. 105; Fisher v. Stone, 4 Ill. 68; Rhodes v. Cousins, 6 Rand. (Va.) 188; McGee v. McGee, 8 Ga. 295, 52 Am. Dec. 407; Yule v. Yule, 10 N. J. Eq. 138; Denton v. Denton, 1 Johns. Ch. (N. Y.) 441; Ramsay v. Joyce, 1 McMul. Eq. (S. C.) 236.

22 1 Barbour, Ch. Pr. 649; Thorne v. Halsey, 7 Johns. Ch. (N. Y.) 193; Gibert v. Colt, Hopk. Ch. (N. Y.) 500; Jackson v. Petrie, 10 Ves. 164; Cox's Ex'rs v. Scott, 5 Har. & J. (Md.) 384; McGee v. McGee, 8 Ga. 295, 52 Am. Dec. 407.

28 McGee v. McGee, 8 Ga. 295, 52 Am. Dec. 407; Etches v. Lance, 7 Ves. 417.

241 Barbour, Ch. Pr. 650; Tomlinson v. Harrison, 8 Ves. 32; Yule v. Yule, 10 N. J. Eq. 138.

committee of a lunatic.27 A petition for a writ of ne excat is amendable. An omission in the same of a material allegation will not render the writ void.28 Erroneous judgment in respect to granting a writ of ne exeat, or insufficiency of statements in the petition, if there are statements upon the facts necessary to authorize the granting of the writ, will not go to the point of jurisdiction; consequently, defective statements of the facts will not deprive the court of jurisdiction.29 The very purpose of the writ would be defeated in many instances if it were required to issue upon notice, and therefore the application is ex parte.30 When the application is against a solicitor in a cause in court, or where it is made by one defendant against another, or against the complainant in a matter of account, no new bill is necessary.3

$ 487

31

Form of bill praying ne exeat.

State of Illinois,

County of Cook.

SS.

In the Circuit Court of Cook County.

To the Honorable, the Judges of the Circuit Court of Cook County, in the State aforesaid, in Chancery sitting:

Your oratrix, A. B., a resident of the city of Chicago, county of Cook, and state of Illinois, respectfully represents unto your honors that she is an actual resident of the said county of Cook, and is now and has been for five years last past a resident of the state of Illinois. That on, to-wit, May 15, 1878, she was lawfully married to one D. B., the defendant hereinafter named, and from the time of said marriage

271 Barbour, Ch. Pr. 650; Stewart v. Graham, 19 Ves. 316.

28 Bassett v. Bratton, 86 Ill. 152.

20 Bassett v. Bratton, 86 Ill. 152. In a proceeding for ne exeat, based on fraudulent conduct of the debtor, by analogy to the proceeding by a capias ad respondendum, the complainant must show by his petition or bill, by facts stated and circumstances detailed, that the debtor has been guilty of fraud, or that there is a strong presumption of fraud. Malcolm v. Andrews, 68 Ill. 100. A petition for a ne exeat upon the ground that the defendant has sold all his property, and is about to depart the state, is defective if it fails to show that the property alleged to have been sold was not exempt from execution. Jones v. Kennicott, 83 Ill. 484.

30 Bleyer v. Blum, 70 Ga. 558; Samuel v. Wiley, 50 N. H. 355. 311 Barbour, Ch. Pr. 648; Loyd v. Cardy, Finch, Prec. Ch. 171; Done's Case, 1 P. Wms. 263; Mattocks v. Tremain, 3 Johns. Ch. (N. Y.) 75.

until, to-wit, the month of May, 1893, lived and cohabited with him as his wife, and during all that time faithfully performed all her duties and obligations as a wife, bearing with her husband's faults and errors, and striving to make their home and family comfortable and happy. That on the 20th day of May, 1893, the said D. B., wholly regardless of his marriage covenants and duties, willfully deserted and absented himself from your oratrix, without any reasonable cause, for the space of two years and upwards, and has persisted in such desertion, and yet continues to absent himself from your oratrix.

Your oratrix further represents that the said D. B. has no real estate whatsoever, and owns nothing but personal property; that he is now engaged in the business of a diamond merchant or broker, and in such business carries a stock of diamonds worth in the neighborhood of twenty thousand ($20,000) dollars, and has at all times in his possession a sum of money rarely, if ever, less than from four thousand to five thousand dollars; that it is the habit of said defendant to carry the said diamonds and the said money upon his person, keeping them in his manual possession during the day, and, at the close of the day's business, placing whatever money he may have, except such as he may need for his daily wants, together with said diamonds, in the safety deposit vaults of the Masonic Temple Safety Deposit Company; that your oratrix does not know whether or not the said defendant keeps his valuables in the said safety deposit vaults in his own name, or under the name of some other person, but your oratrix is informed and believes, and therefore alleges, that he has a box in said safety deposit vaults, which is in the name of some person other than the name of the said defendant; that your oratrix is without means of subsistence except as she is able to earn the same by her own labor; that the said defendant is abundantly able to support your oratrix, and supply all the necessities and wants of your oratrix, but wholly neglects and refuses so to do.

Your oratrix further represents that the said defendant, D. B., has declared his intention, and has threatened and does now threaten, to sell all his personal property, to prevent your oratrix from obtaining alimony for the support of herself; that he has threatened and given out that he will speedily leave the state of Illinois and go elsewhere if legal proceedings should be instituted against him by your oratrix; that the said defendant is about to remove from the state of Illinois, taking his property with him, and your oratrix has good reason to fear and does fear that he will carry his said threats and intentions into execution, and that your oratrix will be left without any security whatever for the amount of any decree that might be awarded her in the nature of alimony and solicitor's fees, unless the said defendant is restrained from departing from the state of Illinois by writ of ne exeat issuing out of this honorable court.

Forasmuch, therefore, as your oratrix is without remedy in the premises except in a court of equity, and to the end that the said D.

B., who is made a party defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby expressly waived; that your oratrix may be divorced and forever freed from the bonds of matrimony now existing between her and the said D. B.; that your honors may decree to your oratrix such portion of the property of the said D. B., or such sums of money to be paid by the said D. B. to her, as your honors may deem necessary and proper for the maintenance of your oratrix; that the said D. B. may be required to pay to your oratrix a sufficient sum of money to enable her to employ counsel and to prosecute this suit, and for her support during the pendency thereof; that the said defendant, D. B., may be stayed by the people's writ of ne exeat republica from departing out of the jurisdiction of this court; and that your oratrix may have such other and further relief in the premises as equity may require, and to your honors may seem meet:

May it please your honors to grant unto your oratrix the writ of summons in chancery, directed to the sheriff of the said county, commanding him that he summon the defendant, D. B., to appear before the said court on the first day of the next term thereof, to be held at the court house in Chicago, in the county of Cook aforesaid, then and there to answer this bill, etc.

And may it please your honors to grant unto your oratrix the people's writ of ne exeat republica, staying the said defendant, D. B., from departing into parts beyond this state and out of the jurisdiction of this court, without leave of court first had, in pursuance of the statute in such case made and provided.

And this your oratrix will ever pray.

A. B., Complainant.

A. B., of the county of Cook and state of Illinois, being on oath first duly sworn, deposes and says that she is the complainant in the aboveentitled bill, subscribed by her; that she has read the same, and knows the contents thereof, and that the allegations therein contained are true, in substance and in fact. A. B.

Subscribed and sworn to before me this 29th day of June, A. D. G. I., Notary Public.

1899.

[Notarial Seal.]

§ 488. Form of order for writ of ne exeat. [Title of court and cause.]

Upon reading the bill of complaint and the accompanying affidavit, It is ordered that a writ of ne exeat, staying the defendant, D. B., from departing into parts beyond this state, and out of the jurisdic tion of this court, without leave of court first had, issue as prayed for in the said bill, returnable to the next term of said court, upon the complainant filing a bond in the sum of $2,500, with sureties to be

(507)

approved by the court, conditioned according to law, and that the clerk indorse upon the said writ that the defendant be required to give bond, with security, in the sum of $2,500.

L. M.,

Judge.

The People of the State of Illinois, to the Sheriff of Cook County, Greeting:

Whereas, it has been represented to the Honorable L. M., one of the judges of the circuit court of Cook county, in said state, by A. B., in her said bill presented to said judge, and filed in said court, that D. B. is about to remove without the jurisdictional limits of this state, to the injury of the said complainant, and the said judge having ordered, under his hand, that a writ of ne exeat republica issue, according to the prayer of the said bill:

You are therefore hereby commanded to summon the said D. B., if he shall be found in your county, personally to be and appear before the said circuit court of Cook county on the first day of the term thereof, to be holden at Chicago, in said county, on the third Monday of October, A. D. 1899, to answer unto the bill of the said A. B., filed in said court as aforesaid, and you are further instructed that, if the said D. B. shall not give bail, according to the provisions of the Revised Statutes of Illinois in such case made and provided, in the sum of twenty-five hundred ($2,500) dollars, you commit him to the common jail of Cook county, to abide the further orders of the said court in the premises, or until he shall of his own accord give bond and security. Witness, John A. Cooke, clerk of the circuit court of Cook county, and the seal thereof, at Chicago, this 29th day of June, A. D. 1899. John A. Cooke,

[Seal.]

Clerk.

[Indorsement on back of writ:]

The sheriff will take bond and security from the defendant in the sum of twenty-five hundred ($2,500) dollars, conditioned as the law directs.

Executed this writ by reading the same to and arresting the body of the within-named D. B. this 30th day of June, A. D. 1899; and he having given the required amount of bail for his appearance, the bond being hereto annexed, I have released him from my custody this 30th day of June, A. D. 1899.

E. J. M., Sheriff,

By B. G., Deputy.82

32 For substance of bill praying for writ of ne exeat, and also form of order for ne exeat and bond of defendant in arrest and order dis charging writ, see Griswold v. Hazard, 141 U. S. 260.