This is an appeal from a decree of the Superior Court discharging a writ of ne exeat against the *Page 258 respondent. Said decree was entered on the motion of one of the sureties on the respondent's bond. This motion was filed by the surety after the respondent had been committed to jail for failure to perform the final decree in which the respondent was ordered to pay alimony in the sum of $5 a week to the petitioner for the support of a minor child. The petitioner contends that the surety is not a proper party to move for the discharge of the writ unless he can show that the writ has fulfilled its purpose. She insists that the writ has not fulfilled its purpose in this instance.
On March 2, 1934, the respondent was adjudged in contempt for failure to comply with the decree of the Superior Court ordering him to pay the alimony for the support of his child, and a body attachment was issued against him. He was arrested and committed to jail. On March 17, 1934, he purged himself of contempt and, upon written motion of the petitioner in the divorce action, the court issued a writ of ne exeat requiring the respondent to give bail with surety in the sum of $500. Bail was given by the respondent with Raymond Janusayewski and Jakubas Russas as sureties. On September 28, 1934, respondent was again adjudged in contempt and, not having purged himself, was committed to jail on December 4, 1934. While the respondent was in custody pursuant to the decree of the court adjudging him in contempt, the surety, Janusayewski, moved in the Superior Court for the discharge of the writ of ne exeat, and the motion was granted. Later, on December 8, 1934, respondent again purged himself from contempt and was released from custody by order of the Superior Court.
The office of the writ of ne exeat is fundamentally the keeping of the respondent within the jurisdiction of the court so that he may be within reach of the order of the court. No excursion into the history of the writ is necessary to convince us that, on the facts above set out, the writ had thoroughly fulfilled its office when the respondent *Page 259 was apprehended and committed to jail on December 4, 1934. The respondent was then within the jurisdiction of the court and could only be released on such conditions as the court deemed necessary. Very properly the surety under these circumstances applied to the court to be released from his obligation as bail for the respondent and quite properly also the justice of the Superior Court granted the motion because the respondent was then within the jurisdiction of the court and amenable to its orders. If the petitioner deemed it necessary, she could have moved for another writ of ne exeat as a condition precedent to the release of the respondent on December 8, 1934.
The petitioner's counsel admits that the mandate of the writ specifically commands the sheriff only to cause the respondent to come before him and give sufficient security that he will not go without the State without leave of court, yet he contends that the writ has not fulfilled its purpose in the instant case because the respondent had not made payments of alimony as ordered by the court. The office of the writ of ne exeat is not to enforce such payments. That object is attained by the arrest of the respondent on a body attachment and his committal to jail until he evinces a willingness to comply with the order of the court. The office of the ne exeat is to assure the presence of the respondent within the jurisdiction of the court when and if it becomes necessary to proceed against the respondent in this manner. It did become necessary to do that very thing on December 4, 1934, and the respondent was found in the State, duly arrested and committed to jail. Under such circumstances the Superior Court had the power to discharge the writ of ne exeat at the instance of the surety on the bail at least while the respondent continued in custody.
The decision of the trial justice in the instant case is not inconsistent with the principles of the law governing this writ as discussed in the Rhode Island cases cited on the *Page 260 petitioner's brief. Hazard v. Durant, 11 R.I. 195; Griswold,Petitioner, 13 R.I. 125; Robinson v. Robinson, 21 R.I. 81;Jastram v. McAuslan, 29 R.I. 471; Levine v. Levine,44 R.I. 61. In none of these cases was this precise question raised, but in considering the scope and purpose of the writ there is no expression of the court which would lead to a conclusion in the instant case contrary to the one we now hold.
Whatever may have been the reason that gave rise to the writ of ne exeat in England, we do not feel those reasons are of any consequence here. When this writ is invoked in a proceeding of the character of the one now before us, the nature and effect of the writ will be viewed in the light of present-day conditions.
The appeal is denied and dismissed, the decree appealed from is affirmed and the cause is remanded to the Superior Court for further proceedings.