The writ of ne exeat is not, in this age and certainly not in this country, looked upon as a prerogative writ. It is a mere ordinary- process of the court, to'be used, under certain circumstances, to enable it to compel parties, as be*556tween themselves, to do justice in relation to matters brought before the court for adjudication.
It is employed to prevent a party who owes an act of justice to his fellow citizen, and to enforce which a suit has been instituted, from withdrawing himself from the jurisdiction of the court, so that he cannot be compelled by its process, to abide its decree. It is, in other words, mere equitable bail, and it is, in fact, in the court of Chancery, and leads to results almost identical with common bail upon a capias, in a suit at law. It has a parallel and similar force and efficacy. To warrant the issuing of a ne exeat, there must be a debt or duty existing at the time, and so far mature at the time, that present payment or performance can rightfully be demanded. This, too, must be an equitable debt. If the complainant has an adequate remedy at law, so that he can hold the defendant to bail by suit at law, he cannot obtain this writ here. There are some exceptions to this last rule, where the jurisdiction of courts of law and equity are concurrent, as in cases of account. It may be allowed in aid of a bill for a specific performance of a contract for the sale of lands. (Bochin vs. Wood, 1 Turner and Russell, 332 ; Brown vs. Haff and Lyon, 5 Paige, 235.) The principles upon which the writ is allowed and issued, are generally understood by the profession, and no reference to authorities can be necessary. At the time the writ is issued, it should be marked by the officer allowing it, in the sum in which the defendant is to be held to bail, and this sum should only be sufficient to cover the complainant’s demand. (Bochin vs. Wood, 1 Turner and Russell, 332 ; McNamara vs. Dwyer, 7 Paige, 239.) In this case, one of the *557objections of the defendant is, that there is no order for marking the writ- It appears, however, that the writ is marked by the clerk, and it must be presumed that, he so marked it in pursuance of the fiat of a proper officer, though such fiat is not produced. Indeed, in this case I know the proper order was made, though the memorandum may not have been preserved. I shall pot hold this to affect the regularity of the process; but if the writ is marked in too large a sum, the amount can be reduced. Indeed, for that matter, it is almost a matter of course to discharge the party from the writ, upon his entering into sufficient bonds to abide the final decree of the court, as to the subject matter of the litigation, and render himself amenable to its process. (Mitchell vs. Bunch, 2 Paige, 606.) Such an order will be made in this case, unless upon farther investigation the court becomes satisfied that the defendant should be discharged entirely.
This suit is brought for the purpose of compelling the defendant to restore a note executed by him, and of which he obtained possession by mistake; or for payment of the amount. The note is past due, and has been mutilated by tearing off the maker’s name. It is perfectly apparent that a restoration of the note would be an idle ceremony. In the first place, in its present shape it would be of no value ; and if of value, would drive the complainant to a suit at law to recover the amount. If this court have properly obtained- jurisdiction, they would retain it for the purpose of doing full justice to the parties, and that could only be done, if the justice of the case was with the complainant, by decreeing the defendant to pay the amount of the note. The complainant has not sta*558ted that he should be unable to prove the facts in a suit at law, without a discovery from the defendant, and the defendant insists in his answer that the complainant has an adequate remedy at law.
I must say that I doubt whether the complainant has made a case full enough to claim the benefit of the jurisdiction of this court. But if he has, the decree, if any in his favor, must be for the payment of the amount of the note.. This would be substantially a decree for a matter founded upon contract. An execution of such decree could not be enforced against the person of the defendant.. The Chancellor, in Ashworth vs. Wrigley, (1 Paige, 301,) has decided that when a defendant has been discharged under the non-imprisonment act, that a ne exeat upon a bill for an account, without any charge of fraud, would also be discharged. The plain principle of this decision is, that inasmuch as the defendant had been discharged by competent authority from imprisonment, the ne exeat would be useless. If the writ had been retained and a decree passed against the defendant for the money demanded, no process could have gone against the person to enforce its payment; and therefore there was no use in keeping the person to answer the decree, for which the person could not finally be made to answer. This decision was made in 1828. Since that time, the act to abolish imprisonment for debt, of 1831, has been passed. This is in some sense a general non-imprisonment act.
It is true, as said by the Chancellor, in the case of Brown vs. Haff and Lyon, (5 Paige, 235,) that this act does not affect the power of this court to issue a ne exeat in any case of equitable cognizance; and I apprehend the court have such power, and will exer*559cise it in proper cases. But I apprehend they will confine its exercise to cases where they can see that , « i.i . . - they can enforce their decrees by process against the person, either by attachment or execution. Thus, in a case of specific performance of a contract for the sale of lands, they will exercise it, because they can enforce the execution of a deed by attachment; and in creditors’ bills, because they can enforce a delivery of the choses in action by attachment and imprisonment—and so in many other cases that may be named, of equitable cognizance. But if they see, when the ne exeat is applied for, that the order of the court cannot be enforced against the person, it should not be issued ; and if issued, should be discharged. It can be of no use to detain the person of the party, when his person cannot be reached to enforce obedience to the final decree of the court. This would be a trifling with the liberty of the citizen, which would be of no use to any one. The only ground upon which the person is detained by the ne exeat, is, that the person may be present at the time the decree is pronounced, to respond to it. If the person of the defendant cannot be made to respond to the decree, it is worse than idle to keep him. In this case there is no injunction to restrain the defendant from removing his property where he pleases. If he himself is detained, he may move his property out of the jurisdiction of the court.
If a decree is made against him in this cause, an execution can only go against his property, and not against his person. The only possible advantage of keeping him here, is to detain him within the jurisdiction of the court, until á decree is had in this cause—an execution issued thereon—returned unsa*560tisfied—and a creditor’s bill filed upon such return to reach his property, and have him within the jurisdiction of the court, to compel a transfer which may enforced by attachment against the person. This . , , . ‘ is altogether too remote a duty to justify, the detention of this defendant under this writ. It would be hardly proper to detain him, not simply to respond to the decree in this suit, for which his person cannot be made responsible; but to respond to another suit hereafter to be commenced in a certain contingency.
Under my view of the scope and intention of this writ, and of the operation of the act of the legislature, this writ must be discharged; and if there should be a “ failure of justice,” it is only in consequence of the act to abolish imprisonment for debt.
Writ discharged, with $12 costs.