
    ALLEN v. HYDE.
    
      N. Y. Supreme Court, First Department; Special Term and Chambers,
    
    
      November, 1876.
    Arrest.—He Exeat.
    He exeat should not be granted in an action on an ordinary legal demand, nor where the liability of defendant sought to be arrested is in doubt.
    
    
      Motion to vacate ne exeat will not be denied on the ground that defendant has given bail, unless the facts as to the security given are shown to the court, and establish a waiver.
    William ft. Allen, as receiver of the assets of Merry-weather & Co., sued Temple Wilcox, Edward L. Hyde and another, and obtained a writ of ne exeat under the following alleged circumstances: Hyde was a clerk or partner in the firm of Temple, Wilcox & Co., a firm to whom at Japan and England Merryweather & Co. had made consignments. One such consignment had been sold and account of sales rendered. Of the arrival of the others advices had not yet been received here. Hyde having been here about three months on the business of his employers, was about to return to to Japan, when he was arrested on the present writ.
    Plaintiffs sued for $5,000, and alleged that Hyde was a partner in the firm, consignees. No complaint had been served.
    Defendant took an order to show cause why the writ should not be vacated; but after serving it, gave bail as required.
    
      Weeks & Forster, for the motion to vacate.
    
      J. W. Angell, opposed.
    
    I. The writ of ne exeat has not been abolished (Breck v. Smith, 54 Barb. 212; Beckwith v. Smith, 4 Lans. 182; Forrest v. Forrest, 5 How. Pr. 125; S. C., 10 Barb. 46; 9 N. Y. Leg. Obs. 89; 3 Code R. 141; Bushnell v. Bushnell, 7 How. Pr. 389; S. C. affirmed in 15 Barb. 399; Glenton v. Clover, 10 Abb. Pr. 422 ; Neville n. Neville, 22 How. Pr. 500; See Rogers v. Mich. S. & Northern Ind. R. R. Co., 28 Barb. 540; 3 R. S. [5th Ed.] 334, § 114; Hayes v. Willio, 11 Abb. Pr. N. S. 167).
    
      II. As a general rule the writ will be allowed on an equitable demand, and will not be allowed on a mere legal claim (Mitchell v. Bunch, 2 Paige, 606; Seymour v. Hazard, 1 Johns. Ch. 1; De Rivafinoli v. Corsetti, 4 Paige, 264; Brown v. Haff, 5 Id. 285; Jenkins v. Parkinson, 2 Mylne & Keen, 5; Pratt v. Wells, 1 Barb. 425). Under the former practice some exceptions to this rule existed where there was concurrent jurisdiction between chancery and common law (Seymour v. Hazard, 1 Johns. Ch. 1). But applying this principle to cases under the Code, the cases in which the writ might issue would be widely extended (Ireland v. Nichols, 1 Sweeney, 208; S. C., 37 How. 222 ; Hayes v. Willio, 11 Abb. Pr. N. S. 167). And even under the old practice, the rule against the allowance of the writ, where the matter was of legal cognizance, was not understood to be inflexible, but would be made to yield to cases of necessity when justice would be defeated without the aid of the writ (Porter v. Spencer, 2 Johns. Ch. 169).
    . III. The writ may issue against a foreigner (Woodward v. Schatzel, 3 Johns. Ch. 412 ; Mitchell v. Bunch, 2 Paige, 606; Forrest v. Forrest, 5 How. Pr. 125). So against even a foreign executor (McNamara v. Dwyer, 7 Paige, 239). It may be issued on issuing summons in the ordinary manner (Bushnell v. Bushnell, 7 How. Pr. 389; S. C. affirmed in 15 Barb. 399.)
    IV. As to proceedings of the service. Upon service of the writ the sheriff must make a return, &c. (2 Wait’s Pr. 281). If the defendant has. been arrested he may procure his discharge as follows : 1. To be released on security. 2. To move to have proceedings set aside on the ground of irregularity (2 Wait’s Pr. 282). There is no claim in the moving papers that there is any irregularity, and even if there was, the same has been waived by an appearance of the defendant. The only application the defendant can make is to be released on security.
    V. The plaintiff can introduce affidavits in opposition to the motion, as in cases of other application to vacate or modify a provisional remedy (Flack v. Holm, 1 Jac. & Walk. 405, 414). The denial of all indebtedness by the defendant will not avail as a reason for discharging a ne exeat, when such indebtedness has been previously sworn to by the plaintiff (Jones v. Alephsin, 17 Ves. 470).
    
      
      The new Code of Civil Procedure abolishes the writ by name, § 548, but preserves it in substance by an express provision defining the cases in which arrest may be ordered on the same grounds.
      The peculiarities of this class of arrests are, 1. That the court has a discretion to grant or refuse the order (§ 551, cited below), while in other cases of arrest as a provisional remedy it is disputed whether the court should exercise a discretion. 15 Abb. Pr. 127; 11 Abb. Pr. N. S. 385; 13 Id. 258. The new Code provides that an order may be granted if a proper case is shown. § 551, last clause, as amended in 1877.
      2. That it can be granted without security.
      3. That it can only be granted by the court.
      The rule in the case in the text is applicable under the new act. As to practice in obtaining the writ, see Viadero v. Viadero (7 Hun, 313).
      The provisions of the new Code of Civil Procedure (1877) upon the subject are the following : Oases in which the order may be granted. § 550, subd. 4, 551. Security discretionary with the court. § 560. Motion to vacate, when to be made. § 567, compare § 558. And plaintiff may move to increase bail. § 567. Giving bail. § 573.
    
   Lawrence, J.

The motion to vacate the writ of ne exeat issued in this case should, I think, be granted, for these reasons: 1st. The preponderance of proof is to the effect that Hyde was not a member of either of the firms which are alleged, in the affidavits on which the writ was obtained, to be indebted to the late firm of Merry weather & Co.," of which the plaintiff is the receiver. 2nd. It is an inflexible rule that to entitle a complainant to the writ of ne exeat there must be a present debt or duty or some existing right to relief against the defendant or his property, either at law or in equity (2 Wait’s Pr. 274, and cases cited). In this case the weight of the testimony is that the defendant is not a member of the firms alleged to be indebted to the receiver. 3rd. As a general rule the writ does not issue except in cases of equitable demands, and is not allowed on a merely legal claim (2 Wait’s Pr. 273). The claim in this case is an ordinary legal claim, arising out of an ordinary commercial transaction. 4th. The papers before me «do not appear to show what security the defendant has given, if he has given any at all, bringing the case within the rule as to waiver, as stated by the chancellor in Jesup v. Hill (7 Paige, 95). I do not feel constrained, therefore, to hold that the defendant has done anything which amounts to a waiver of his right to move to vacate the writ. It should be vacated for the reasons above stated, but the defendant must stipulate not to sue for false imprisonment or arrest.  