
    court of Appeals, june term mk
    
    Cox’s Ex’rs vs. Scott.
    IrStedftradebt li"™?1 not'ePnal iisSé “SieThp eqSíeone
    boídtobe exeíua nt onVwíi^of férved on iiim™«
    Appeal from á decree of the court of cliancery. The stated in the bill which was.filed fin the 21st of November Í816, are, that Cox,the defendant in the court be-(whose executors áre now the appellants,) being into the complainants folie of whom is the surviving appellee,) in the suni of §1599 30, gave them His negotiable promissory noté, dated the 23d of April 1816, payable in nine months after date. The noté was not due until the 26th of January, after the filing of the bill. Thai Cox was about to remove liiniself, and all his goods, property and merchandize, into the western parts of the United States, and without paying said debt to the complainants; or giving them any security or satisfaction for the payment thereof; That as the promissory note; and the sum of money therein mentioned, was riot due, the complainants could not institute a suit at law for its recovery? and for as much as they would be without remedy in the premises,' and if Cox was to leave this state, Would be in danger of losing their said debt, they prayed that he be decreed to pay, or Secure to be paid, to them, the said sumí of money; and be prohibited from leaving or departing from this state without the further order of this court/ and for such other and further relief in the premises; as the nature and justice of their case might require, &c. Prayer for a siibpena, and the state’s writ of ne exeat, &c; Writs óf súbpená and ne exeat accordingly issued. At the return day of the? Writs the sheriff, to whom they were directed, returned that he had served them, and that he had taken a bond from Cox, with surety to the state in the penal sum of §3200; conditioned, “that if the said James Cox, junior, does not go, or attempt to go out of the state of Maryland, without leave of the said high court of chancery, then the above obligation to be void, otherwise to remain in full force and virtue.” Cox answered the bill, admitting that he was indebted to the complainants in the sum mentioned on his promissory note, as stated by them. He denied that he was about to remove himself and all his goods, &c. into the western parts of the U. S. but that being a merchant* extensively engaged in business,- and having a large stock of dry goods on hand, &c. he had, with the' knowledge and consent of all his principal creditors, except the complainants, intended to take a part of said stock to Pittsburgh for the purpose of disposing of them, and to make collections of debts due him there, and afterwards to return as speedily as possible to Baltimore, and had no design whatever of permanently removing, &c. That he bad executed a bond, with security, securing the complainants full and complete remedy at law, which he had offered to them, &c. Prayer, that the writ of ne exeat 'might be discharged, &c. and petitioned that lie might be permitted to depart the state on his lawful and necessary business, &c.
    Kilty, Chancellor, (November 29th, 1816.) I have considered the within petition,, and the answer and other papers therein referred to. I am opinion, that no temporary leave could be given, but that the writ of ne exeat must be discharged entirely, or remain in force. But no circumstances of hardship that could be stated would entitle tbe petitioner to a decision without giving the other party an opportunity of being heard. Without expressing any positive opinion, I am inclined to think, that if the petition Could now be heard, the bond offered Would not be sufficient; but that a bond to perform the decree would be required. It is therefore ordered, that the petition be heard on Wednesday the 2d day of December term next; provided a copy of this order be served on either of the complainants, or their counsel, before the 2d of December next. On the 2d of December the chancellor passed the following order: “On hearing the parties on the above petition I am of opinion, that it cannot be complied with, but the ne exeat may be dissolved on a bond according to tbe rule contained in the book of otders.” The defendant afterwards executed such a bond to the state, in the penal sum of §3200, and conditioned, “that if the said James Cox, junior, shall either obey, fulfil and perform, the decree which may be made by the chancellor in the said cause, or render his body to the custody of the sheriff, to whom any writ of attachment or capias ad satisfaciendum shall be directed, for the purpose of compelling a performance of the said decree by the said defendant, then,” &c. The chancellor then ordered the ne exeat to be dissolved.
    
      Kilty, Chancellor, (February term 1817.) This suit being set down for final hearing on bill and answer, was argued by the counsel on each side. On behalf of the defendant a number of authorities were cited as to the juris, diction and practice of the court; to the benefit of which, as far as they are applicable, his client is entitled; but there are no merits in his case. He applied to have the ne exeat dissolved, and it was dissolved according to the rule of the court; on Ills giving a bond to obey the decree, or render himself to custody on a ca. sa. The present defence goes-to render the bond nugatory, although the answer admitted the money to be due. The only doubt that I have is as tú the kind of decree now to be made. It is not the practice of the chancellor alone to assess interest by way of damages, and therefore it appears proper to have an interlocutory-decree 'to account. But if the complainants should desire it, thé decreé will be rescinded, and the cause stand for further hearing at the next term. Decreed, that the parties account with each other, and that an account be taken by thé auditor, &c: The auditor accordingly stated an aectíunt—^that there was due from the defendant to the complainants the sum of §1634 11, with interest on g 1599 30 from the 29th of May 1817, until paid.
    Kilty, Chancellor, (July term 1817.) The counsel for the complainants moved for a confirmation of the auditor’s report, and a decree for payment. The counsel for the defendant was heard against it, and the case was submitted. I see no reason to alter the opinion expressed in the interlocutory decree at February term. Decreed, that the account reported by the auditor be confirmed, and that the defendant do forthwith pay to the complainants, or bring into this court to be paid to them, the sum of 81634 11, with interest on 81599 3Of part thereof, from the 29th of May 1817, until paid or brought in, and the costs' of this suit.- From which decree the defendant appealed to this court. Pending the appeal, he died', and his executors were made parties. The death of one of the appellees was suggested.
    The cause, was argued at December term 1819, before Chase, Ch. J. Buchanan, Johnson, Martin, and Dorsey, J.
    
      
      Stott, for the appellants,
    contended, 1. The''proper remedy for the complainants for the recovery of their debt, was an action at law on the note, and the court of chancery had not jurisdiction in the case; if that court had not originally jurisdiction, no,act of the parties could give it, and every thing must be considered as coram non judice.
    
    2. Even if the court of chancery would have had jurisdiction, on the complainant’s showing that they had been deprived of-their remedy at law by the act of the defendant, yet there was no* such testimony, and the answer denied the allegation of an intended removal.
    On the first pomt he contended, that the writ of ne. exeat was a high prerogative writ, and was issued by the King for political- purposes, to restrain the subject from leaving the country. Filz, -N. B. 85, (192.) Cooper's Plead. Introd. XXXIV. It was afterwards extended for the benefit of the subject, but was never issued on a mere legal demand, but only in the case of an equitable one. Anon. 2 Aik. 210., Read vs. Bead, 1 Ghan. Ca. 115. Roberts vs. Wilkie, Arab. 177. King vs. Smith, 1 Dick. Rep. 82. Atkinson vs. Bedal, Ibid98. Exparte Buncombe, Ibid 503. Taylor vs. Leilch, Ibid S80.j Exparie Bunker, 3 P. Tints. 313. Goodioin vs. Clarke, 2 Dickens' Rep. 497, ($• note.) Crossley vs. Marriott, Ibid 609. Brocker vs. Hamilton, 1 Dickens' Rep. 154. 2,Madd. Ghan, ,181, 182, per Lord Chan. Eldon. Cooper's Plead. 3 3, 149. Seymour vs. Hazard, 1 Johns. Chan. Rep. 1., Cook vs. Ra-vie, 6 Fes. 283, It had sometimes been granted in the nature of bail. Cooper's Plead. Introd. XXXIY, arid.1 page 13. 2 Mad. Chan. 182. So also when applied for by sureties, as in Hall-vs. Bosley, by Chan. Rogers; and'; Wilson Hoffman vs. Mqndhart, by Chan. Hanson. Also, by Chan. Hanson in the case of partners..,
    On the second point he stated, that if the writ of ne exeat had issued properly, there-was no subject matter on which the chancellor could decree, as the proper remedy was at law. He cited 1 Madd. Chan. 21, 69. Anon. 2 Aik. 210.
    
      Moale, for the appellee.
    The question for decision is, hath the court of chancery jurisdiction over the matter contained in the proceedings in this case? If the subject matter is cognizable in equity, then the decree is correct, and is in conformity with the justice of the case, as disclosed by the proceedings. It appears that an interlocutory decree passed to account, with liberty to the complainants and defendant to produce testimony. An account was taken. This account, and the amount thereof, form the basis of the final decree. The subject matter of the claim may be fairly considered as matter of account; and if so,_ a court of equity hath competent jurisdiction: 1. In the. case of an admitted balance of account, the court has jurisdiction. An admitted balance of account does not differ, from a note. Between drawer and payee, the consideration may be inquired into by the drawer, and so into an admitted balance of account. It does not appear bu,t that there were mutual dealings between the parties, and that the note was taken for the balance of account. If the note was for such balance, the court hath original jurisdiction, as in Jones vs. Sampson, 8 Fes. 593, where the 'writ of ne exeat was sustained on an admitted balance of ac~ ■ count, (upon wdiich bail might have been had,) on the ground that either party might apply to a court of equity, and have an account. It was incumbent on the defendant below to show that the claim in question was a single demand. He might have proved that fact before the auditor, when the account was taken. Mutual dealings, and a balance of account, may be fairly inferred.
    2. The decree in this case may be sustained on the ground of fraud. The transaction, on the part of the appellant, originated in fraud. That fraudulent devices were used in obtaining the merchandise on a long credit, and giving the note payable at a distant day, are facts disclosed by the answer. If the fraud grew incidentally out of the whole transaction, it is sufficient to give the court jurisdiction.
    3. This writ can be sustained in all cases where the party haying even a money demand, cannot institute suit at law, and hold th.e debtor to. bail. In such cases a court of chancery has jurisdiction, and can grant relief. The right to recover under the jurisdiction of that court, arises from the act of the debtor himself. His le.aving the state with his property, of itself gives jurisdiction. The uniform decisions of the court of chancery of this, state have recognized this principle; and in all cases of money demands, where the debtor could not he held to bail at law, the writ of ne exeat has been granted and sustained, This was the case in Zollickoffer vs. Bousqaet, and Philpot vs. Basey, in the year 1784, Hogan vs. MiCulloh, and Hall vs. Ugden, in 1786. Hall vs. Bosley, and Bright vs. Clay-land,, in 1788. Owings vs. Ogden, in 1795. In this last pase the basis of the prayer for the writ was, that Owings had instituted an action of trespass Q. C. F. and had omit" ted to file an affidavit to hold the defendant to bail, there being a great and special damage, &c. Montgomery vs. Gilmor, where the bond was not due, and Smith vs Gordon in 1799. Brown vs. Buncan, by surety for notes not due, in 1800, Scott vs. Bulger, where the note was not due, and Shipley, vs Dougherty, in 1801. Lock fy Cartwright vs. Bond, on the application of sureties in a guardian’sbond, and Hoffman et. all vs. Mandhart, by sureties ip custom house bonds, in 1802. Whittington vs. Freeland, where a ca. sa. had issued op a judgment, and was returned non est, in 1804. These cases prove the practice of the court of chancery in this state to be, that a writ of ne exeat may issue, and be sustained, where the party has a money demand, (although not a demand where a court of equity, would have cognizance, as having either original or concurrent jurisdiction,) and ha? no remedy at law, and cannot hold the debtor to bail.
    The late decisions in England show that the writ of ne exeat can in no case be sustained but where the court of chancery hath original or concurrent jurisdiction. But this court will not be controled by those decisions further than is consistpnt with the sound policy of the commercial interest of the country, and the rules of justice. Those cases decide, that to sustain the writ, the demand must be an equitable demand, in the nature of a debt actually due—a debt due in conscience, and where thepaxty has no remedy at law. The first case of a writ of ne exeat is in Lloydvs. Cardy, Pre. in Chan 171, in the year 1701, where the plaintiff stated that he had paid the defendant more money than was due on a hill referred to be taxed. On the affidavit of the plaintiff*, without a bill being filed, the writ was sustained. The party here had remedy at law. He could, have maintained an action of assumpsit for the amount over paid. In Brunker exparte, 3 P, Wms. 312, it was held that the writ could not issue without'a bill was filed; that it copld not issue on a mere money demand for -which the defendant might have been holden to bail. Hence, if the party could not be held to bail, the writ could be sustairied. That is, if the creditor cannot support his action at '*aw’ t>ecai?se the debt was not due, and therefore the party could not be held to bail, the court will interfere. This is the true distinction. There is no case reported where, the party cannot be held to bail, that the court of chancery have refused the writ. In the anonymous case in 2 Aik. 210, there was a verdict and judgment at law, but' the plaintiff could not have the benefit cf his judgment immediately, and the defendant was about to leave the country. The writ was refused because the plaintiff might hold the party to bail in an action on the judgment. In Pcarne vs. Lisle, Amb. 75, the writ was refused, because the plaintiff had his remedy at law. In Donees case, 1 P. Wms. 263, (note,) it veas held, 1st. that a bill must be filed, and: 2d. that the writ could not issue on a mere legal demand, for which the defendant might be, held to bail. In Rico-vs. Guallier, 3 Aik. 501, the bill stated<a fraud. In Atkinson vs. Leonard, 3 Pro. Ch. Ca. 218, the bond was lost, and the writ was sustained, because the court had concurrent jurisdiction, although the demand was a legal one; that is, the obligor could have been held to bail. In Parker vs, Appleton, 3 Pro. Ch. Ca. 427, the affidavit stated two demands, the 1st. a liquidated claim, and the 2d. another account. The writ was marked for the former only. The, plaintiff and defendant were partners in a joint adventure; the court had original jurisdiction; but still, on the liquidated claim, the party might have been held to bail. In Cock vs. Ravie, 6 Ves. 284, (which is one of the late English decisions, opposed to those of our own court of chancery,) the plaintiff had become the defendant’s surety in « bond not due, and the defendant had promised to indemnify him.. The writ was refused—the demand must be an equitable demand, in the nature of a debt actually due. This is not the case at bar. In the case of a bond not due, it is a legal demand, because the demand attaches immediately; the penalty admits the debt to be due, but by the condition avoids it. The case of a promissory note is not so, there no legal demand attaches until the note is due. In the above case, Lord, Thurlow cites a case of a bill filed to make the principal in a bond pay the debt. The party was going to America on the 1st of June, and the bond would have been due on the 1st of July. The case was fitftyñg-, yet tlie writ was refused. Jackson vs. Petrie, 10 Ves. 165, was a case of fraud, but only by inference. So in the case before this court, fraud may be inferred. In Gardiner vs. —--, 15 Ves. 444, the ne exeat was applied for to restrain an attorney from going abroad; and to abide the event of an action pending for the recovery of the money mentioned in the bill. The writ was refused; and it was said to be only granted on an equitable demand. Here the suit vas depending, and the party being an attorney upon his privilege, could not be held to bail. The party here had selected his remedy—He had brought a suit and it was depending. In Haffey vs. Haffey, 14 Ves. 261, which was a case of alimony, an undoubted case of original jurisdiction. But tlie Lord Chancellor said “this writ hath been considered as in the nature of equitable bail; and under circumstances that would not entitle you to bail at law, you cannot have this writ here.” In Jones vs. Alephsin, 16 Ves. 470, the bill stated íhé demand to be the balance of account. The court said, “it is settled, that although the plaintiff’s swearing to a balance of account, may have bail at law, yet this court holding concurrent jurisdiction on the head of account, the plaintiff may have the writ.” In Russell vs. Ashy, 5 Ves. 96, the plaintiff was the widow and executrix of d testator, and being entitled under his will to ¿4000, employed an attorney to get it in, who recovered part Of it, ¿62712, which he paid over to the defendant, a stock trader, to be invested in the funds. , The defendant did not invest it, but converted it to his own use, and to avoid payment intended to leave the kingdom. In support of the motion it was contended, that this was an equitable demand upo'n which the plaintiff could not sue at law. The Lord Chancellor- expressed a doubt whether the writ could be: sustained, intimating that the defendant might have been held to bail in an action at law. On motion to discharge the writ it was contended that this was a mere legal de-> mand, upon which an action at law for money had and received would lay; but the chancellor said the plaintiff would have been nonsuited at law, and that the defendant should account for the' money according to the price the' stock bore when the money was put in his hands.
    
      Curia cidv. vult,
    
   The Court of Appeals

at the present term reversed tlie decree Of the court of chancery;  