Pratt v. Wells

Harris, J.

It is not necessary to decide, upon this motion, whether or not the suit in this court can be maintained. It is certain that if it can be maintained at all, the action at law can also be maintained. And I understand the general rule to be that if a creditor has an adequate remedy at law, so that he can hold his debtor to bail by a suit at law, he is not entitled to a writ of ne exeat from a court of equity. The application for the writ is addressed to the discretion of the court; and if there is any exception to the rule that it will not be issued when the plaintiff has a right of action at law, such exception must be founded upon some difficulty in proceeding at law. It is upon this ground that in some instances the "writ has been granted upon bills filed for an account, or for alimony. In such cases, although the defendant might perhaps be arrested in an action at law, yet from the nature of the case, the proceedings in such an action would be difficult, and for that reason are more properly the subject of equitable cognizance.

But even where it has the power to grant this writ, a court of equity will be very cautious in its exercise. In Jenkins v. Parkinson, (2 Mylne & Keen, 5,) Lord Brougham said, “ the writ is strictly confined to cases where the party has no remedy at law, unless in the excepted cases of a decree obtained for alimony, and a balance sworn to upon an account. All the authorities are against stretching this exception.” And in Raymes v. Wyse, (2 Merivale, 472,) which was a case very similar to this, Lord Eldon held that the fact that there had been a previous holding to bail at law, from which the defendant had been discharged, was a fatal objection to an application for a ne exeat.

The motion must therefore be granted, but without costs.