to compel obedience to the same. The claim must be for the payment of a certain fixed sum of money.10 A claim for unliquidated damages is insufficient. Thus, the writ cannot issue under a bill to set aside a bill of sale of a vessel, for a return of the vessel or her value, and for an account of her earnings.12 The debt must be already due.13 A debt which is contingent,14 or certain but future,15 is insufficient. The motives for the defendant's departure, no matter how innocent they may be, as, for example, that he is about to sail upon a ship of which he is captain,16 will not prevent the issue of the writ.17

§ 262. Against whom the Writ will Issue. The writ was originally confined to subjects of the King of England. It has been extended, however, so as to apply to foreigners as well as subjects of the country from the courts of which the writ issues,2 and where the court has jurisdiction, the writ may be issued at the suit of one foreigner against another.3 It seems that the writ may be issued against a married woman in a suit affecting her separate estate. The writ will not issue against a defendant who is under arrest or held to bail in an action at law.5 The Constitution provides that Senators and Representatives shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same.6 And the Revised Statutes, that whenever any writ or process is sued out or prosecuted by any person in any court of the United States, or of a State, or by any judge or justice, whereby the person of any public minister of any foreign prince or state, authorized and received as such by the President, or

9 Pearne v. Lisle, Ambler, 75; Read v. Read, 1 Ch. Cas. 115; Ex parte Whitmore, 1 Dickens, 143; Shaftoe v. Shaftoe, 7 Ves. 171; Street v. Street, 1 T. & R. 322; Daniell's Ch. Pr. (2d Am. ed.) 1926, 1927.

10 Graham v. Stucken, 4 Blatchf. 50; Daniell's Ch. Pr. (2d Am. ed.) 1931.

11 Graham v. Stucken, 4 Blatchf. 50. 12 Graham v. Stucken, 4 Blatchf. 50. 18 Whitehouse v. Partridge, 3 Swanst. 365, 377; Seymour v. Hazard, 1 J. Ch. (N. Y.) 1.

14 Anon., 1 Atk. 521.

15 Whitehouse v. Partridge, 3 Swanst. 365, 377; Seymour v. Hazard, 1 J. Ch. (N. Y.) 1.

16 Dick v. Swinton, 1 V. & B. 371. 17 Stewart v. Graham, 19 Ves. 313; Daniell's Ch. Pr. (2d Am. ed.) 1934, 1935. § 262. 1 Daniell's Ch. Pr. (2d Am. ed.) 1933; Beames on Ne Exeat, 1-20.

2 Flack v. Holm, 1 J. & W. 405; Daniell's Ch. Pr. (2d Am. ed.) 1933, 1934.

3 DeCarriere v. DeCalonne, 4 Ves. 577; Mitchell v. Bunch, 2 Paige, (N. Y.), 606.

4 Moore v. Hudson, Mad. & Geld. 218; Moore v. Meynell, 1 Dickens, 30; Daniell's Ch. Pr. (2d Am. ed.) 191.

5 Raynes v. Wyse, 2 Meriv. 472; Daniell's Ch. Pr. (2d Am. ed.) 1980, 1931. • Constitution, Article I, § 6.

any domestic or domestic servant of any such minister, is arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, such writ or process shall be deemed void. Whenever any writ or process is sued out in violation of this statute, every person by whom the same is obtained or prosecuted, whether as party or as attorney or solicitor, and every officer concerned in executing it, is deemed a violator of the laws of na tions and a disturber of the public repose, and is liable to impris onment for not more than three years, and a fine at the discretion of the court. These regulations do not apply to any case where the person against whom the process is issued is a citizen or inhabitant of the United States in the service of a public minister,' and the process is founded upon a debt contracted before he entered upon such service; nor to any case where the person against whom the process issued is a domestic servant of a public minister, unless the name of the servant has, before the issuing thereof, been registered in the Department of State, and transmitted by the Secretary of State to the marshal of the District of Columbia, who is required, upon the receipt thereof, to post the same in some public place in his office. All persons may have access to the list of names so posted in the marshal's office, and may take copies without a fee.10

The ap

§ 263. Practice in obtaining the Writ of Ne Exeat. plication for a writ of ne exeat republica may be made ex parte, even after the defendant has appeared. The reason for allowing this is, that notice might frustrate the object of the motion by giving the party an opportunity of removing himself out of the jurisdiction. It has been held in England that the writ cannot be obtained until a bill has been filed. The equity rules provide that the writ shall be asked for in the bill, when it is required "pending the suit." But it has been held that the writ may be granted at or after the decree, although the bill contains no such prayer. And by the English practice, no

7 U. S. R. S. § 4063. See Ex parte Cabrera, 1 Wash. C. C. 232; United States v. Benner, Baldwin, 234; United States v. Lafontaine, 4 Cranch C. C. 173.

8 U. S. R. S. § 4064.

9 U. S. R. S. § 4065.

10 U. S. R. S. § 4066.

§ 263. Collinson v. Elliot v. Sinclair, Jacob, 545.

2 Elliot v. Sinclair, Jacob, 545.

8 Ex parte Brunker, 3 P. Wms. 312; Mattocks v. Tremain, 3 J. Ch. (N. Y.) 75. But see Loyd v. Cardy, Prec. in Ch. 171.

4 Rule 21. But see the language of Lord Eldon in Collinson v. ——— 18 Ves.

18 Ves. 353; 353.

5 Lewis v. Shainwald, 7 Saw. 403, 417

prayer in the bill was required.6 The writ must be supported by an affidavit made by the complainant himself, or some person acquainted with the facts. The affidavit must be positive as to the facts, not merely upon information and belief, except in the case of an account, when the plaintiff may swear that, to the best of his belief, the sum named will be due to him on the balance of the account. A writ was discharged when it appeared from the affidavit that the affiant could not have had personal knowledge of the transaction to which he swore positively.10 The affidavit must be positive as to the intention of the defendant to go abroad, or to his threats or declarations, or those of members of his family or his agents, showing such an intention on his part.11 An affidavit stating information from a stranger will ordinarily be insufficient.12 It is prudent to state in the affidavit that the debt will be endangered by the defendant's quitting the country.18 Deficiencies in the affidavit may be supplied by admissions in the answer.14 The court may require as a condition for the issue of the writ that the complainant give an undertaking to respond in damages should the writ be afterwards discharged,15 The writ is directed to the marshal, and is in substantially the following form :

THE PRESIDENT OF THE UNITED STATES OF AMERICA TO THE MarSHAL OF THE SOUTHERN DISTRICT OF NEW YORK:

Greeting,

Whereas it is represented to us in our Circuit Court of the United States for the Southern District of New York in equity, on the part of JOHN ABER, complainant, against CHARLES DUTTON, defendant, (among other things) that he, the said defendant, is greatly indebted to the said complainant and designs quickly to go into parts without the United States (as by oath made on that behalf appears), which tends to the great prejudice and damage of the said complainant. Therefore, in order to prevent this injustice, we do

257.

6 Collinson v. 18 Ves. 353; Lewis Watts, 2 C. P. Cooper temp. Cottenham, v. Shainwald, 7 Saw. 403, 416, 417. Collinson v. ——, 12 18 Ves. 353; Mattocks v. Tremain, 3 J. Ch. (N. Y.) 75.

8 Rico v. Gualtier, 3 Atk. 501; Jack son v. Petrie, 10 Ves. 164; Mattocks v. Tremain, 3 J. Ch. (N. Y.) 75.

Oldham v. Oldham, 7 Ves. 410. 18 Mattocks v. Tremain, 3 J. Ch. (N. Y.) 75, 76; Baker v. Haily, 2 Dickens, 632; Daniell's Ch. Pr. (5th Am. ed.) 1708, and cases cited. But see McGehee v. Polk,

9 Rico v. Gualtier, 3 Atk. 501; Jack 24 Ga. 406, 412. son v. Petrie, 10 Ves. 164.

10 Roddam v. Hetherington, 5 Ves. 91. 11 Oldham v. Oldham, 7 Ves. 410; Collinson v. 18 Ves. 353; Knight v.

95.

14 Roddam v. Hetherington, 5 Ves. 91,

15 Daniell's Ch. Pr. (5th Am. ed.) 1708.

hereby command you, that you do, without delay, cause the said CHARLES DUTTON personally to appear before you, and give sufficient bail or security in the sum of $- that the said CHARLES DUTTON Will

not go, or attempt to go, into parts without the United States, without leave of our said Court; and in case the said CHARLES DUTTON shall refuse to give such Bail or Security, then you are to commit the said CHARLES DUTTON to our next prison, there to be kept in safe custody, until he shall do it of his own accord; and, when you shall have taken such security, you are forthwith to make and return a certificate thereof to us in our said Circuit Court of the United States for the Southern District of New York distinctly and plainly under your hand, together with this Writ.

WITNESS, the Honorable MELVILLE W. FULLER, Chief Justice of the Supreme Court of the United States, at the City of New York, in the County and State of New York, the thirteenth day of November, one thousand eight hundred and eighty-nine.16

The writ should be endorsed with the amount of the sum demanded written out in words at length.17 When it is issued against a personal representative by a person claiming a share of the residuary estate, it should be endorsed with the whole amount due from the defendant, not only to the plaintiff, but to all persons interested in the estate.18 When the writ is endorsed for a larger sum than is due, the court will ordinarily refuse to quash it, but will require the defendant to give security only for so much as is really due.19 The writ, upon its issue, must be delivered to the marshal. It is his duty thereupon to execute it by arresting the defendant named in it, and bringing him before the court.20 He has no power to break open doors under the writ.21 The defendant may be released upon giving sufficient security to satisfy the marshal.22 After executing the writ, the marshal should make a return of what he has done.23 The defendant may move at any time to discharge the writ, either for irregularity or upon the merits, by disproving the charges in the complainant's affidavits.24 But it has been said by Lord Eldon, that where the plaintiff has sworn positively to the debt and to the defendant's

16 Beames on Ne Exeat, 23, 24.
17 Beames on Ne Exeat, 93.

18 Pannell v. Tayler, T. & R. 96, 100.
19 Pannell v. Tayler, T. & R. 96, 100.
20 Daniell's Ch. Pr. (2d Am. ed.) 1943.
21 Beames on Ne Exeat, 95.

22 Beames on Ne Exeat, 96; Boehm v.

Wood, T. & R. 332, 340; Daniell's Ch. Pr. (2d Am. ed.) 1943.

23 Daniell's Ch. Pr. (2d Am. ed.) 1945; Impey on Sheriffs (2d ed.), 532.

24 Gernon v. Boecaline, 2 Wash. 130; Grant v. Grant, 3 Russ. 598, 602.

declarations of his intention to go abroad, the defendant's unsupported affidavit will be insufficient to contradict this.25 If the writ is discharged, another writ may issue upon a new affidavit.26 Upon payment into court of enough to satisfy the plaintiff's claim, the writ will always be discharged.27 The writ may be discharged if the defendant gives sufficient security to satisfy the court.28 The security usually required is conditioned that the defendant abide by the process and decree of the court; 29 but security that the defendant abide by and perform the process and decree of the court may be required.30 The discharging order usually enjoins the defendant from bringing an action of false imprisonment; 31 and the prosecution of such an action may be restrained by a subsequent order. If the court considers the writ improperly issued, it may direct a reference to a master to ascertain the damages sustained by the defendant, and direct the payment to him of the amount found due by the sureties upon the plaintiff's undertaking.33 An amendment of the bill which does not materially alter the case does not discharge the writ.34

25 Amsinck v. Barklay, 8 Vesey, 594, 597; Jones v. Alephsin, 16 Vesey, 470, 471.

26 Gernon v. Boecaline, 2 Wash. 130. 27 Evans v. Evans, 1 Ves. Jr. 96. 28 Roddam v. Hetherington, 5 Ves. 91, 95; Boon v. Collingwood, 1 Dickens, 115; Beames on Ne Exeat, 98, 99.

29 Griswold v. Hazard, 141 U. S. 260,

281.

30 Griswold v. Hazard, 141 U. S. 260, 281.

31 Darley v. Nicholson, 2 Dr. & War. 86. 82 Darley v. Nicholson, 2 Dr. & War. 86. 83 Sichel v Raphael, 4 L. T. N. s. 114. 84 Grant v. Grant, 5 Russ. 189.