§ 490. Service of writ.

Writs of ne exeat are served by the sheriff of the proper county. Upon serving the writ he is usually required to take a bond from the defendant, with surety, of which the penalty is to be the amount designated in the writ, conditioned that the defendant will not depart from or leave the state without the permission of the court, and that he will render himself in execution to answer any order or decree which the court may render against him.33 The sheriff is answerable for the sufficiency of such sureties.34

§ 491. Bond.

The court, in granting the writ, fixes the amount of the bond which the defendant, after being arrested on the writ, is required to give. In the absence of statutory provision or rule of court, the court in so doing exercises its discretion, having due regard to the circumstances of the case, and usually directs that the bond shall be in a sum sufficient to cover the existing debt, and a reasonable amount of future interest.35 The obligations of such sureties closely resemble those of bail at common law.36 If the defendant, upon being arrested upon a ne exeat, fails to give such bail as shall be satisfactory to the sheriff, he is kept in custody according to the command of the writ, and the sheriff must state that fact in his return of the ne exeat.37

§ 492. Discharging ne exeat.

After a party is arrested upon a ne exeat, he may apply to

831 Barbour, Ch. Pr. 654; Boehm v. Wood, 1 Turn. & R. 340; Brayton v. Smith, 6 Paige (N. Y.) 489; Johnson v. Clendenin, 5 Gill & J. (Md.) 463; Gibert v. Colt, Hopk. Ch. (N. Y.) 496. In some instances, the order is that he shall not leave the jurisdiction of the court. Lewis v. Shainwald, 48 Fed. 492.

341 Barbour, Ch. Pr. 654; Brayton v. Smith, 6 Paige (N. Y.) 489. 35 Denton v. Denton, 1 Johns. Ch. (N. Y.) 441. See, for ne exeat bonds, Elliott v. Elliott (N. J. Ch.) 36 Atl. 951.

26 1 Barbour, Ch. Pr. 654; Johnson v. Clendenin, 5 Gill & J. (Md.) 463.

271 Barbour, Ch. Pr. 654.

W

the court, by motion or petition, and upon notice to the opposite party, for an order to discharge the writ. It is a matter of course to order the writ to be discharged upon the defendant's giving security to answer the complainant's bill, and render himself amenable to the process of the court, pending the litigation, and to such process as may be issued to compel the performance of its final decree.38 The defendant may move to discharge the writ, not only upon giving security, but for want of equity appearing upon the face of the bill, the insufficiency of the affidavit on which the writ was granted, upon the facts set up in the defendant's answer or in the affidavits, or for an irregularity of any kind in the granting or issuing of the writ, and everything going to show that the writ ought not to have been issued is a reason for discharging it.39 On motion to discharge the writ on bill and answer, affidavits of other persons may be read by the defendant.40 Affidavits may be read both in support of and against the motion to discharge the writ, and the defendant may in his affidavit deny the allegations on which the writ was granted. The defendant may secure his discharge by paying into court the sum for which the security was taken.42 The giving of the usual security to the sheriff upon a ne exeat does not preclude the defendant from applying, upon the bill only, or upon the coming in of the answer, to have the writ discharged, and the bond to the sheriff given up and canceled. But where the defendant, for his own convenience, applies to the court and gives the usual bond, with

41

381 Barbour, Ch. Pr. 655; McNamara v. Dwyer, 7 Paige (N. Y.) 239; Mitchell v. Bunch, 2 Paige (N. Y.) 606; Miller v. Miller, 1 N. J. Eq. 386; Harris v. Hardy, 3 Hill (N. Y.) 393; Cary v. Cary, 39 N. J. Eq. 20.

39 1 Barbour, Ch. Pr. 656; Leo v. Lambert, 3 Russ. 417; Ashworth v. Wrigley, 1 Paige (N. Y.) 301; O'Connor v. Debraine, 3 Edw. Ch. (N. Y.) 230.

40 Haight v. Case, 4 Paige (N. Y.) 525; Brown v. Haff, 5 Paige (N. Y.) 235.

411 Barbour, Ch. Pr. 657; Flack v. Holm, 1 Jac. & W. 414; Cowdin v. Cram, 3 Edw. Ch. (N. Y.) 231.

42 Evans v. Evans, 1 Ves. Jr. 96; Dupont v. Goffe, 1 Desaus. Eq. (S. C.) 143.

out asking to reserve the right of applying to cancel the bond, the right to raise the question as to the propriety of holding him to bail originally will be deemed to be waived.43 Payment of the complainant's claim into court is cause for discharging the writ. The mere fact that the defendant denies under oath his intention to go abroad will not be regarded if the writ was granted upon facts or declarations as evidence of such intention.45 The affidavit of the defendant that no debt is due, or evidence of an admission by the complainant to that effect, will not avail upon this motion.46 The writ will not be discharged because it appears to have issued for a sum greatly exceeding that for which it can be sustained. In such cases the amount for which the bond is required will be reduced accordingly.47 It is discretionary with the court whether or not it will require the defendant to give security to abide the decree,48 or will restrain an action for false imprisonment against the party taking out the writ.49

43 1 Barbour, Ch. Pr. 657; Jesup v. Hill, 7 Paige (N. Y.) 95.

44 Jerningham v. Glass, 3 Atk. 409; Baker v. Dumaresque, 2 Atk. 66. 45 1 Barbour, Ch. Pr. 656; Amsinck v. Barklay, 8 Ves. 594; Conyers v. Gray, 67 Ga. 329; Hammond v. Hammond, Clarke Ch. (N. Y.) 151; Houseworth's Adm'r v. Hendrickson, 27 N. J. Eq. 60.

46 Jones v. Alephsin, 16 Ves. 470.

471 Barbour, Ch. Pr. 657; Grant v. Grant, 3 Russ. 598; Pannell v. Tayler, Turn. & R. 100.

48 Griswold v. Hazard, 141 U. S. 260; In re Petition of Griswold, 13 R. I. 126.

49 Beach, Mod. Eq. Pr. § 626, citing Darley v. Nicholson, 2 Dru. & War. 86; 2 Daniell, Ch. Pl. & Pr. (5th Ed.) 1714.

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CHAPTER XXIX.

INJUNCTIONS.

§ 493. In general.

The writ of injunction may be described as a judicial process whereby a party is required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the writ. The object of this process, which is extensively used in equity proceedings, is generally preventive and protective, rather than restorative, though it is by no means confined to the former. It seeks to prevent a meditated wrong more often than to redress an injury done. It is not confined to cases falling within the exercise of the concurrent jurisdiction of the court, but it equally applies to cases belonging to its exclusive and auxiliary jurisdiction. In most jurisdictions it is held that the writ of injunction is merely a preventive remedy, and mandatory injunctions are discountenanced. Therefore, the practice has sprung up of securing an injunction which is really a mandatory injunction, under the guise of a preventive injunction. Thus, a minister being wrongfully excluded from his church, the trustees were ordered to desist from keeping the church closed to him, which was, in effect, enjoining them to open the church to him.2

11 Barbour, Ch. Pr. 607; 2 Story, Eq. Jur. § 155; Fisher v. Board of Trade of Chicago, 80 Ill. 85; Lacassagne v. Chapuis, 144 U. S. 119; Wangelin v. Goe, 50 Ill. 459; Audenried v. Philadelphia & Reading R. Co., 68 Pa. 370, 8 Am. Rep. 195; Murdock's Case, 2 Bland (Md.) 461, 20 Am. Dec. 381; Blakemore v. Glamorganshire, 1 Mylne & K. 154.

2 Whitecar v. Michenor, 37 N. J. Eq. 6; Carlisle v. Stevenson, 3 Md. Ch. 499; Hunt v. Sain, 181 Ill. 372, 54 N. E. 970; In re Lennon, 166 U. S. 548. It is said that, though all injunctions are for restraint, final injunctions may go further, and command acts to be done or enjoined, and then are termed "mandatory." Audenried v. Philadelphia & Read

The most common kind of injunctions is that which operates as a restraint upon a party in the exercise of his real or supposed rights, and this is called a "remedial writ of injunction." The other sort, commanding an act to be done, is sometimes called the "judicial writ," because it issues after a decree, and is in the nature of an execution to enforce the same; as, for instance, it may contain a direction to the party defendant to yield up, to quiet, or continue the possession of lands or other property constituting the subject-matter of the decree in favor of the other party. It is not within the scope of this work

ing R. Co., 68 Pa. 370, 8 Am. Rep. 195. See, for mandatory injunctions, Waycross Air-Line R. Co. v. Southern Pine Co., 111 Ga. 233, 36 S. E. 641; Whiteman v. Fayette Fuel Gas Co., 139 Pa. 492, 20 Atl. 1062; Parsons v. Marye, 23 Fed. 113; United States v. Cole, 7 Mackey (D. C.) 504; Sherman v. Clark, 4 Nev. 138, 97 Am. Dec. 516; Black v. Jackson, 177 U. S. 349. "Undoubtedly, the general rule is that an injunction is a preventive remedy merely, and cannot be so framed as to command the party to undo what he has done. Wangelin v. Goe, 50 Ill. 459. But it has been said that a court of chancery, by framing the order for injunction in an indirect form, can compel a defendant to restore things to their former condition, and so effectuate the same results as would be obtained by ordering a positive act to be done. Kerr, Inj. (3d Eng. Ed.) p. 48. While the jurisdiction of equity by way of mandatory injunction is rarely exercised, and while its existence has even been questioned, it is nevertheless too firmly established to admit of doubt.' High, Inj. § 2. A mandatory injunction commanding the plaintiff to do some positive act will not be ordered except upon final hearing, and then only to execute the judgment or decree of the court. A mandatory injunction will be issued in cases of obstruction to easements or rights of like nature; and an obstruction will be ordered to be removed, as part of the means of restraining the defendant from interrupting the enjoyment of the said easement or right. Rogers Locomotive & Machine Works v. Erie Ry. Co., 20 N. J. Eq. 379. In Earl v. De Hart, 12 N. J. Eq. 280, an injunction was prayed against the defendants to enjoin and restrain them from permitting the channel of a water course to remain filled up and obstructed, and from further filling up and obstructing the same; and it was there held that the complainant was entitled to have the obstruction removed, and that a court of chancery could exercise the power to abate nuisances, as well as to prevent the erection of nuisances, in clear cases." Hunt v. Sain, 181 III. 372, 54 N. E. 970.

1 Barbour, Ch. Pr. 608; 2 Story, Eq. Jur. § 155; Washington University of Baltimore v. Green, 1 Md. Ch. 97.

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