
    HAYES against WILLIO.
    
      New York Common Pleas;
    
    
      Special Term, November, 1871.
    IiTJUXCTIOX to Restbaust Deamatio Peefobmahces. —He Exeat.
    Defendant, having contracted to perform at plaintiff’s theater, at a fixed compensation, for a certain time, and not to perform elsewhere during that time, made an agreement to perform in another theater before the expiration of the contract.—Meld, that he might be restrained by injunction from carrying out that agreement, there being no demand in the complaint for a decree of specific performance, and no uncertainty in the contract as to time, place or substance.
    In such a case, a writ of ne exeat, if necessary to carry out the injunction, will issue.
    The cases discussed, and them effect stated, by J. F. Daly, J.
    Motion to vacate a temporary injunction, and to set aside a writ of ne exeat.
    
    James E. Hayes, manager of the Olympic Theater, in Hew York, brought this action to enjoin defendant, Henry Willio, from engaging to appear and play, and from fulfilling any engagement already made to appear and play at any other theater than the Olympic Theater aforesaid, during the continuance of a certain agreement made by the defendant in London, England, with one Kiralfy, who was claimed to be'tke plaintiff’s agent.
    The agreement was dated August 7, 1871, for an engagement to commence on or about September 1, 1871, for “three months certain,” with right of renewal at Kiralfy’s option for eighteen months. The defendant agree in it ‘‘not to perform at any other establishment without a written notice” from Kiralfy.
    The defendant commenced to perform under, said agreement at the Olympic. Theater, on August 31, 1871, and continued to perform for nearly two months, when, about October 19, 1871, he gave notice of his intention to cease his performances there and play at another theater, where he had been engaged, viz: in Boston, under a contract with one Stetson, at an increased salary.
    A temporary injunction and a writ of ne exeat were obtained, and defendant now moved to vacate the injunction and.set aside the writ.
    
      Charles W. Brooke, for the motion.
    I. Chancery does not interfere by an injunction, unless the party applying has a vested right, legal or equitable, which may be irreparably affected by the acts sought to be enjoined (City of New York v. Mapes, 6 Johns. Ch., 46 ; Kemble v. Kean, 6 Sim., 333), and an injunction is granted only when the rights sought to be protected are at least free' from reasonable doubt (Snowden v. Noah, Hopk., 347). It does not lie to enforce a contract for personal services (Hamblin v. Dinneford, 2 Edw., 529), nor to restrain a public performer from violating a contract to perform for the plaintiff only (Sanquirico v. Benedetti, 1 Barb., 315).
    II. The complainant should be left to his remedy at law. The court will not interfere positively by a decreee for specific performance, nor negatively by an injunction.
    III. As the case is not one in which the court will grant relief, there is nothing to sustain the writ of ne exeat (Sanquirico v. Benedetti, supra ; Hamblin v. Dinneford, supra; Butler v. Galletti, 21 How. Pr., 465). In cases of doubt, the court will vacate the order (Secor v. Weed, 7 Robt., 67).
    
      IY. It is not enough to show that the continuance of the acts complained of will do plaintiff an injury; he must show that it is a case where he will be entitled to final relief (Corning v. Troy Iron and Nail Factory, 6 How. Pr., 89 ; Ward v. Dewey, 7 Id., 17; Crocker v. Baker, 3 Abb. Pr., 182; Wordsworth v. Lyon, 5 How. Pr., 463 ; Hartt v. Harvey, 32 Barb., 55; S. C., 10 Abb. Pr., 321).
    V. Whenever a man signs a contract in his own name, there must be something very strong upon the face of the instrument to prevent the liability of the contracting party attaching to him (Cook v. Wilson, 1 C. B. N. S., 153; Williams v. Christie, 4 Duer, 29; Higgins v. Senior, 8 Mees. & W., 834).
    YI. The only proper use of the writ of ne exeat is to detain the person of the defendant to respond to the decree of the court; when the cause of action is such that the person cannot be touched under the decree, either by execution or attachment, the writ will not issue (Gleason v. Bisby, 1 Clarke, 551; Johnson v. Clendenin, 5 Gill & J., 463). For will it issue, unless a debt is due; having issued, the defendant will be held to respond to the decree and the justice of the case (Johnson v. Clendenin, supra; 2 Story Eq. Jur., § 1473 ; Atkins v. Leonard, 3 Bro. C. C, 218).
    YII. To authorize the issue of a ne exeat, the demand must not only be equitable, but must be a pecuniary demand (Gibbs v. Mermaud, 2 Edw., 482 ; Cowdin v. Cram, 3 Id., 231; De Rivafinoli v. Corsetti, 4 Paige, 264); and it must also be actually due. The writ will not be issued in respect of a contingent claim (Whitehouse v. Partridge, 8 Swanst., 365, 377). The debt must be certain in its nature, and actually payable (2 Story. Eq. Jur., § 1474; Sherman v. Sherman, 3 Bro. C. C, Perk, ed. 370, notes ; 3 Dan. Ch., 1805). It will notissue where the demand is of a general, unliquidated nature, or is in the nature of damages (2 Story Eq. 
      
      Jur., § 1474; Gibbs v. Mermaud, supra; 3 Dan. Ch., supra).
    
    VIII. There must be a debt existing at the time, and so far mature that present payment or performance can rightfully be demanded (Gleason v. Bisby, supra; Cox v. Scott, 5 Harr. & J., 384; Seymour v. Hazard, 1 Johns. Ch., 1; 2 Story Eq. Jur., supra; 3 Dan. Ch., supra; Rhodes v. Cousins, 6 Rand, 188; Brown v. Haff, 5 Paige, 235; Porter v. Spencer, 2 Johns. Ch., 169).
    IX. Even where the debt becoming due does not depend upon a contingency, but is certain, though future, the writ will not be granted. The plaintiff must be able to swear positively, how much is due him, or to show to the court the sum to be marked on the writ (1 Atk., 521; Whitehouse v. Partridge, supra; Rice v. Gautier, 3 Atk., 501; 1 Bro. C. C., 376; Sherman v. Sherman, supra; Beames on Ne Exeat, 52; Boehm v. Wood, Turn. & R., 343). The only exception is in the case of suit for an account.
    X. The affidavit must be as positive to the equitable debt, as an affidavit of a legal debt to hold to bail (Jackson v. Relio, 10 Ves., 164; 3 Dan. Ch., 1811). It must state that the debt will be endangered by the defendant’ s leaving the kingdom (Boehm v. Wood, supra; Stewart v. Graham, 19 Ves., 313 ; Yule v. Yule, 2 Stockt. Ch. [N. J.], 138, 140, 141; Atkins v. Senior, 3 Bro. C. C., 218 ; Mattocks v. Tremain, 3 Johns. Ch., 75; Rhodes v. Cousins, supra).
    
    XI. If, upon application to discharge or quash the writ on the ground of irregularity, the court thinks it has been improperly issued, it will at once order it to be discharged, but leave will be granted to make another application (Hopkin v. Hopkin, 10 Hare App., 2 ; 3 Dan. Ch., 1817).
    XII. To entitle the plaintiff to the writ, the debt or demand must be satisfactorily ascertained; a declaration of belief is not enough. There must also be a positive affidavit of a threat or purpose of the' defendant to go abroad ; and that the debt would be lost, or at least endangered, by his departure (Mattocks v. Tremain, supra; Thorne v. Halsey, 7 Johns. Ch., 189).
    
      C. F. Wetmore, opposed.
    I. The Code of Procedure, section 219, allows injunction^ in cases like this. The complaint shows that plaintiff is entitled to the relief demanded, and that defendant should be restrained under the Code, section 219. Sanquirico v. Benedetti does not vary the decision in De Rivafinoli v. Corsetti (4 Paige, 265).
    II. The Code (sections 471 and 478), continues the writ of ne exeat, and the power to issue it as a statutory remedy (Breck v. Smith, 54 Barb., 212). The tpower to issue the writ in cases of equitable cognizance is not impaired or affected by the Code (Neville v. Neville, 22 How. Pr., 500; Bushnell v. Bushnell, 15 Barb., 399). The remedy is strictly confined to cases where ■the party has no remedy at law (Pratt v. Wells, 1 Barb., 425).
    III. To entitle the party to the writ, there must be a personal debt, or duty, or some existing right to relief against defendant or his property, either at law or in equity (De Rivafinoli v. Corsetti, supra). This case, which has never been questioned or overruled, is unlike Sanquirico v. Benedetti, where the defendant was sought to be compelled to sing. That he could not be compelled to sing, was one of the reasons the plaintiff was not entitled to relief; moreover, the suit was prematurely brought, his time to commence not having arrived.
    IY. The writ will be granted, if the court has jurisdiction of the cause, and if the defendant intends to leave the State, so that the decree would prove ineffectual (Mitchell v. Bunch, 2 Paige, 606, 617; Woodward v. 
      Schatzell, 3 Johns. Ch., 412; McNamara v. Dwyer, 7 Paige, 239). It is granted only in case of mere equitable demand, and never upon a mere legal demand (Robertson v. Wilkie, Ambler, 177; Jones v. Sampson, 8 Ves., 593).
    V. A writ of ne exeat is simply to hold the party amenable to justice, and to render him personally responsible for the performance of 'the orders and decrees (Johnson v. Clendenin, 5 Gill & J., 463).
    YI. YJhere it clearly appears that a decree will ultimately be obtained, the writ will be allowed (Brown v. Haff, 5 Paige, 235).
   J. F. Daly, J. [After stating the facts.]

The most serious question presented on the facts is as to the right of the plaintiff to equitable relief, restraining defendant from performing at any other theater than the plaintiff’s; in other words, the right of plaintiff to enforce in equity the negative contract of defendant which follows his contract for personal services. The affirmative contract, viz: to perform, could not be specifically enforced, and plaintiff does not ask that it should be. Contracts (for personal service) of a negative character have been enforced in particular cases where the subject matter is particularly the province of courts of equity, as in a partnership where one partner in a theater agreed with his copartners that he would not write dramatic pieces for any other theater. In that case, the court enjoined the defendant from writing for any other theater (Morris v. Coleman, 18 Ves., 437). But the principal question in that case was, Whether the covenant was not void on grounds of public policy, as in cases of covenants on restraint of trade, because it was unlimited. The covenant was, however, upheld by Lord Eld ok, as one of mutual covenants between copartners. Sir Samuel Romilly, for the plaintiff on the argument, took the point that it was “no more against public policy, than a stipulation by Garrick, not to perform at any other theater than that at which he was engaged, would have been.”

In a subsequent case in the English court of chancery (Kemble v. Kean, 6 Sim., 333), the vice-chancellor refused an injunction to prevent Mr. Kean acting at any other theater in London, until he had performed his engagement at Covent Garden Theater. The bill in that case not only prayed for such injunction, but also for affirmative relief, that defendant might be decreed specifically to perform his agreement with the plaintiffs. That agreement was, that “he would be ready on the commencement of the season of 1830-31, to return, when required, to his engagement, of which ten nights remained uncompleted; and that in the meantime, he was not to act in London.” The vice-chancellor remarked, that there was no time stated in the contract for the defendant to perform, and the thing was altogether so loose, that the court could not determine upon what scheme of things the defendant should perform his agreement; that there could be no prospective declaration or direction of the court as to the performance of the agreement; that there was no method of arriving at what was the substance of the contract by means of any process the court could issue ; that where the agreement is mainly and substantially of an active nature, and is so undetermined that it is impossible to have performance in that court, and it is only guarded by a negative provision, the court will leave the parties to a court of law.

In this State, the court of chancery refused to enforce a similar contract on a similar bill, praying for the like affirmative relief, and the enforcement of a negative covenant as part or incidental relief, because the court could not enforce the affirmative part of the contract, i. e , compel the actor to perform at a particular theater, the Bowery, and, therefore, would not enforce his covenant not to play at any other theater, and, left the plaintiff to his remedy at law (Hamblin v. Dinneford, 2 Edw. Ch., 529). The same court, in a prior case, that of De Rivafinoli v. Corsetti(4 Paige Ch., 265), held, that where an opera singer had engaged to sing for eight months, commencing November

1, 1833, but before that time arrived, made an engagement to go to Havana and perform, and intended to violate his contract, the court would not interfere, because there had been no breach of the contract, the time not having arrived for defendant to perform for plaintiff when the action was brought, and there could be no breach until the engagement commenced.

In a subsequent case in the supreme court, where the plaintiff prayed for a specific performance of the defendant’s contract to sing, and for an injunction restraining a breach of his covenant not to make engagements with any other person, the court held, that it could not decree a specific performance, because it was impracticable (Sanquirico v. Benedetti, 1 Barb., 315). It appears to me, that the current of these decisions was to establish, 1. That where the affirmative part of the contract was indefinite as to time or place, so that no specific performance of the substance of the contract could, be decreed, the action must fail; and as the plaintiff could not have affirmative relief, the court would not enforce the defendant’s negative covenant.

2. That in a case where the active or affirmative contract was certain and definite, yet there was no process in equity to enforce it, and the plaintiff could not have the relief he prayed for, the court would not, in that action, enforce by injunction the negative covenant. 3. That in such cases, the plaintiff must be left to his remedy at law.

In the present action, the plaintiff does not seek in equity the enforcement of the defendant’s contract to perform, but to enforce a definite contract not to perform at any other theatre. There is no doubt of the power of the court to enforce this covenant in the fullest manner. A decree that the defendant shall not perform at any other place than the Olympic Theater for the rest of the period of three months, during which his engagement continues, can be enforced by attachment effectually, and the plaintiff need not fail in Ms action for want of power of the court to decree, or of process to enforce, obedience to that judgment.

In a fit and proper case, I do not see why, under the Code, the court should refuse to take cognizance of an action in tMs form, and apply the remedy in its power.

The distinction between legal and equitable remedies was discontinued by the Code, adopted since the decisions above cited. There can be no question of jurisdiction such as defeated the plaintiff in. Kemble v. Kean, where the court of chancery would not interfere, because no partnership had been proved to sustain the demand of equitable relief, and give the court jurisdiction of the subject of the action. Whatever relief the facts in the complaint entitle the plaintiff to, may be granted, if the court has power to allow it, unless the relief is of more than one kind, and inconsistent.

In Morris ». Coleman, the court of chancery, having . jurisdiction because the parties were copartners, enforced the negative contract of defendant not to write for other theaters than that he had agreed to write for, by writ of injunction.

Under the Code, it has been held, that the power of the court to enjoin has been enlarged by the provisions of section 219 (Merritt v. Thompson, 3 E. D. Smith, 283).

I do not regard this action as presenting the features of the case of De Rivafinoli v. Corsetti (supra), because the defendant here, has already entered upon his engagement for a definite period of three months, has partly performed it, and has not only given notice to plaintiffs of his intention to violate his agreement, but does not deny having made an agreement immediately to leave the State to play at another theater, in contravention of plaintiff’s rights. I think plaintiff should be allowed such aid as the court can give him, to enforce the defend ant’s plain agreement not to play elsewhere, and that a covenant of the nature made by the defendant and which, from the legal reports, seems to have been a customary one for many years in this country and in England, is not without the pale of equity cognizance.

It is indisputable, that when theatrical managers with large capital invested in their business, making contracts with performers of attractive talents, and relying upon such contracts to carry on the business of their theaters, are suddenly deserted by the performers in the middle of their season, the resort to actions at law for damages must fail to afford adequate compensation. It is not always that the manager is deprived of his means of carrying on his business, but that his performers, by carrying their services to other establishments, deprive him of the fruits of his diligence and enterprise, increase the rivalry against him, and cause him an injury. It is as much his right, if he have a • contract to that effect, that no other establishment shall have the services of his performers, as that he shall have them himself. There is no hardship to the actors in preventing the breach of the negative part of their contract, for every man has the right to expect to be held to his agreement when it was entered into without fraud, and he receives the consideration he demands, and his contract entitles him to.

This court has full power, under section 219 of the Code, to grant the relief demanded, viz: to restrain defendant from performing at any other theater during the term of his engagement with the plaintiff, and can provide for it not only by decree, without any uncertainty as to time, place or substance, but can enforce it by attachment, to the very letter. The action need not fail for want of power to decree specific performance, as in the cases cited, for no decree as to the affirmative portions of the contract is demanded.

The defendant seems to have become dissatisfied with his engagement, because it required him to give a day performance which he had not anticipated; but his contract is broad enough to cover all that has been demanded of him, and he alleges no misrepresentations as to the work lie was to perform.

In respect of the amount of his compensation, it appears to have been fixed after several meetings between him and Kiralfy, and after various propositions on his part.

I regard his position as to his contract being made with Kiralfy personally, as untenable. He was expressly notified by the language of the latter, that he was acting: for the Olympic Theater, in making engagements, while the defendant was also informed that Kiralfy had no-authority to engage any one in his line; yet the contract was made, in the hope of its ratification by the plaintiff, and when he arrived in Hew York, this ratification was given, having the effect of original authority, and the defendant commenced the engagement under the plaintiff without objection.

The injunction should, therefore, be continued pendente lite.

The writ of ne exeat being issued in aid of the injunction, and being absolutely necessary to carry the order of the court into effect, the motion to set it aside must be denied.  