
    Commissioner in Equity of Union Distict v. Wm. Philips, Geo. Clarke and B. Chick.
    
      Tried before Mr. Justice Butler, at Union, Spring Term, 1835.
    TUawrit of** at%:feiida™to ““foty that part the state thoh°Coitrt — tiie sureties being iialeftírigiató orderUdthat the defendant* shall aWdeS°by’tyand perform tiiodo. tut0e’fo/tiiUebSncto amt — and an t£eU defendant* but in no case been granted for
    
      This was an action of debt on a bond taken by the commissioner in Equity, under the following circumstances : Silas Anderson and others filed a billl in Equity, in April 1827, agamst Wm. Philips, for specific performance. Pending this SU^ one ^16 complainants made an affidavit that he was in. formed and believed, that the defendant Philips was about to leave the State ; whereupon the commissioner made an order that a writ of ne exeat issue, and that the defendant enter into bond and security to remain within the State and abide the decree of the Court of Equity. Under this order and in conformity with its terms, Philips executed the bond in question, with Clarke <fc Chick as his securities. It did not appear that Philips left the State until after the present action was instituted : but the plaintiff produced a decree against bun by the Court of Equity for a certain sum, a part of which still remained unpaid ; and proved that Philips had taken the benefit of the insolvent debtor’s act, and was unable to satisfy the decree, and contended that his securities are liable according the terms of the bond. The defendant pleaded: X. Per. formance generally. 2. That the commissioner had no power to make an order requiring such a bond, and the bond was therefore void. An order made by Mr. Justine Earle, at March Term, 1831, authorising the securities ot Phillips to surrender him in their discharge, so far as they could do so by ^aw’ and the terms of the bond, was given in evidence, The writ in this case was returnable of the Term at which the order was made, and a surrender of Philips was made under it; and it was admitted, that if this was to be regarded as a bail bond, the securities were discharged. On this state ot the pleadings and facts, the question was submitted, whether the defendants, the securities, .were liable. His Honor held ^bat the commissioner had no authority to require such a bond— that if he had it was vague and uncertain for the want of some fixed sum in which to be taken — that the defendants were therefore not bound. Or regarding it as a bail bond, the securi-bes were discharged by the surrender of their principal, ^-e therefore sustained the defendants’ pleas. The plaintiffs appealed, and moved to reverse this decision, on the grounds:
    the terms iso8u°i author*” ityo’f the'comí missioner in cd to granting radioes*1 not extend to the wMchissubstftu1 foro01at;bond1Tñ pursuance of an oomm’rbtLt tile defendant shall tfíe astate'viand decree of tile Court of Equity, isvoid-
    1. That the commissioner had the power to make the order under which the bond was taken.
    2. That admitting the order to be illegal, the defendants cannot object to its illegality in this form of proceeding and at this late period.
    
      Herndon, for the motion,
    contended that the commissioner had the same power to grant a ne exeat as a judge at chambers. 1 Brev. Dig. 212; and that a Chancellor could grant the writ and impose such terms and conditions as he might think proper. That the order made by the commissioner could only be avoided by appeal — it was not to be questioned by this Court, but examinable only in Chancery. That as to the surrender of Philips, it can have no effect, because made under an order 1‘rom a judge at law, who has no power or jurisdiction over the proceedings m Chancery. And he cited 2 Kent’s Com. 31, 32; Beanie’s writ of ne exeat, 2; 2 Atk. 66 ; Ambl. 177; 5 Ves. 95 ; 3 Johns. Ch. 412 ; 2 Harrison Ch. 208; 2 Atk. 210.
    
      A. W. Thompson, contra,
    argued that the order was granted without a sufficient shewing; that no sum was sworn to, or endorsed on the writ — and that the bond was improperly drawn to the commissioner — That the authority of the commissioner was limited generally to writs of ne exeat, technically so called ; and this order imposed other conditions not belonging to a nc exeat, and was therefore void: — or admitting the validity of the order and the bond, the securities were to be regarded as bail, and entitled to like privileges. They were therefore discharged by the surrender. Cited, 3 M’C. 429 ; 3 Johns. Ch. 412 ; 1 Ves. & Beame, 129; 1 Eq. Rep. 145 ; 2 Kent’s Com. 34.
   Harper, J.

By the act of Assembly of 1808, the masters and commissioners in equity are authorized to grant writs of ne exeat and attachments. Does this empower them to order that the defendant shall give security to abide by or perform the decree, as well as not to go without the limits of the State? If not, the bond of the defendants must be regarded as obtained by duress. Certainly the general condition of the ne exeat bond is merely that the defendant will remain within the limits of the State. It is regarded as a bail bond. “ The writ is usually directed to the sheriff, to make defendant find sufficient surety that he will not depart the realm without the order of the Court, and on his refusal to give such bail or surety to the sheriff, to commit him to prison.” 2 Mad. Ch. 183. See also Blake’s Ch. Prec. 409 for the form of the order, and 410, for the form of the writ. In 2 Atk. 210, Anon. the motion for ne exeat was refused, on the ground of its being a legal demand. The Chancellor says that the plaintiff might have had bail on bringing his action at law, and that if he were to grant the writ, it must be discharged on the defend, ant’s putting in bail. The sureties being regarded as bail, must, I suppose, have the right to surrender.

The order that the defendant shall give security to abide by or perform the decree, is regarded as a substitute for the ne exeat and an indulgence to the defendant. Woodward v. Schatzel, 3 Johns. Ch. Ca. 414. “ The writ will be discharged if the party pays into Court the sum for which the writ was marked, or what upon the answer appears to be due, or if he gives security to answer the decree.” 2 Mad. Ch. 183. In Atkinson v. Leonard, 3 Bro. C. C. 218, the motion was to discharge the ne exeat, which was granted on the defendant’s ¿riving security to pav what should be found due on the account. The Chancellor says that ‘when the question is between ne exeat and taking security, I easily lean to the latter.’ Roddam v. Hetherington, 5 Ves. 91, and Howden v. Rogers, 1 Ves. & B. 129, are also cases in which the ne exeat was discharged on giving security to abide the degree. In Baker v. Dumaresque, 2 Atk. 66, the order was made in the first instance, on the application for ne exeat, but still as I understand it, as a matter of mitigation and indulgence. The writ of ne exeat is regarded as a proceeding of extreme rigor. By the terms of the act of Assembly, however, the authority of the commissioner is confined to that, and does not extend to the mitigated order which is substituted for it. But in no case whatever, nor by any authority, has the order ever been grant, ed for both at once.

The motion is dismissed.

JoiinsoN and O’Neall, Js. concurred.  