9. When irregularly obtained. Alinjunction. When irregularly obtained. If any injunction be irregularly obtained, it is a motion, of course, to refer the same to a master, and if he reports the injunction irregularly issued, such report may be excepted to; the exceptions must be filed with the register or assistant register, and argued in court. If no exceptions are filed, the court, on master's reports, will dissolve injunction, and sometimes commit the clerk in court for making out such injunction, and make him pay all costs, and sometimes the damages the injured party hath sustained by reason of such irregular injunction.(a) Perpetual injunction. 10. Perpetu Where the case may require it, the court will grant perpetual injunctions in the following instances: 1. Against proving a will in the spiritual court, or Court of Probates, (the same being found, on trial at law, to be no will.) Chan. Cas. 80.(b) 2. To stay action at law of several persons, where right had been heard and determined by one trial.(c) 3. On a bill taken pro confesso, by reason of the defendant's contempt in standing out all process.(d) 4. After two verdicts on trials at bar.(e) 5. Granted against a bond of fifty years standing. Chan. Cas.(f) 6. On a decree for the performance of trusts.(g) Writ of injunction. injunction. The People of the state of New-York, by the Grace of 11. Writ God free and independent, To C. D. and E. F. and to their counsellors, attornies, solicitors and agents, and each and every of them Greeting: Whereas, it hath been represented unto our Chancellor, in our court of Chancery, on the part of A. B. complainant, that he has lately exhibited his bill of complaint in our said court of Chancery, against you the said C. D. and E. F. defendants, to be relieved, touching the matters therein complained of. In which said bill, it is amongst other matters set forth, that you the said defendants, are combining and confederating to injure the complainant, touching the matters set forth in the said bill; and that the actings and doings of you the said defendants, touching the matters in the said bill mentioned, are contrary to equity and good conscience. We therefore in consideration of the premises, and of the particular matters in the said bill set forth, do strictly enjoin and command you the said C. D. and E. F. and all and every the persons before mentioned, and each and every of you, under the penalty of ten thousand dollars, to be levied on your and every of your lands, goods and chattels, to our use; that you, and every of you, do absolutely desist and refrain from all further proceedings at law against the said A. B. or against his bail, upon the judgment in favor of E. F. mentioned in the said bill, until the further order of our said court of Chancery to the contrary, and this under the pain aforesaid. Witness, James Kent, Esq. Chancellor of our said state, at the city of New-York, the day of in the year of our Lord one thousand eight hundred and eighteen. G. H. Solititor. Edm. Elmendorf, clerk. [Endorsed] By the court. Edm. Elmendorf, clerk. 1. Against whom, and how granted. NE EXEAT REPUBLICA. Special Contents. I. Against whom, and how granted. II. Upon what kind of demand. III. To whom directed. JV. The nature of the affidavit. V. By whom granted. VI. Where the writ issues on the certificate of the master. VII. When to file the master's report on exceptions to the defend ant's answer. VIII. Decisions thereon. IX. Form of the bill. X. do. of affidavit. XI. Certificate of the master allowing it, XII. Form of the writ. Ne exeat republica. THIS writ, though originally applicable to purposes of state, as a high prerogative writ, is now extended to private transactions, and is granted upon motion or petition, and affidavit after bill filed,(a) to restrain the defendant from avoiding the plaintiff's demand, by quitting the kingdom or state, as the case may be, but the court has granted this writ against an attorney upon a (6) Newland, 102. 2 Mad. 181. 3 P. W. 314. sum reported, upon taxation of his costs, to have been overpaid him, although no bill was filed against him.(b) kind of de This writ issues only on an equitable demand, with 2. Upon what the exception of a decree for alimony, where it issues mand. for the arrears, but for those only and costs.(c) It has been refused upon a demand at law, not merely because the plaintiff may have bail, and he ought not to have double bail, both at law and at equity,(d) but for want of jurisdiction in such a case; the court having refused to grant this writ, upon a legal demand against an attorney, although he could not be held to bail ;(e) but it may issue upon a debt founded on a ba→ lance of account, as account is a matter of equitable as well as legal cognizance, although bail might be had for the debt.(f) This writ is applied at the discretion of the Chancellor in civil cases, (g) but always with great consideration; particularly where foreigners are concerned; for it is a severe process, depriving the subject of his liberty; "I never apply it," says Lord Eldon," without apprehension:" directed. The writ is usually directed to the sheriff, to make 3. To whom the defendant find sufficient security that he will not depart the realm without the order of the court, and on his refusal to give bail or surety to the sheriff, to commit him to prison.(h) In order to obtain this writ, application should be made as promptly as possible, and the plaintiff must swear positively that the defendant is going abroad, or (b) Newland, 102. 2 Mad. 181. Pre. Chan. 171. (c) Newland, 102. 7 Ves. 171 173. 410, and 14 Ves 261 (d) 3 P. W. 312. Pre, Chan. 171. (e) Do. 103. 15 Ves. 445. the affidavit, to some déclaration that he is, nor is it sufficient that another person said so.(). Nature of The affidavit must be as positive as to the equitable debt, as an affidavit of a legal debt must be to hold to bail.(j). granted. The affidavit must also state the facts on which the debt arises, and on which it is grounded, and that the debt will be endangered by the party's going abroad; it need not allege that the purpose of going abroad is to avoid the demand.(k) *:: 5. By whom This writ is obtained by an application to the Chancellor, or in the absence of the Chancellor to a master of the court, duly designated for that purpose by motion or petition, agreeably to the provisions of the 41st rule of court. The application is founded on a bill regularly sworn to, and is made in the same manner as in the case of an injunction, of which we have already treated. See ante, injunction. writ issues on of the master. The Chancellor, or master, as the case may be, endorses on the bill, an order or certificate, allowing the writ to issue, and also marks on it, the sum in which the party shall be held to bail, as a guide to the sheriff, to whom it is directed.(4) 6. When the But where the writ. issues on the certificate of the the certificate master, the party obtaining the writ, must within six weeks after the date of the master's certificate, obtain an order for continuing the same from the Chancellor, or the writ will be discharged of course without furtherorder.(m) chaku kepad 7. When to file the mas If a ne exeat hath issued on the prayer of the comter's report on plainant, and he excepts to the defendant's answer for defendant's an- insufficiency, the complainant shall procure the mas exceptions to swer. |