#### Dean vs. Smith.

*Writ ofne exeat.*— Beeord *on appeal.*

1. An arrest upon a writ of *ne*exeat,'and restraint of liberty until tie party gives bail not to depart out of tie state, is not “ imprisonment for debt,” within tie meaning of tie constitutional proiibition on tiat subject.

2. In a suit to compel the settlement of a partnership account, where it appeared by tie verified complaint and other affidavits, tiat defendant had converted all his property into money or notes, and threatened to leave tie state: *Held,*tiat a writ of *ne exeat*was properly issued against him.

3. An order of court made previously to tiat appealed from, and adjudicating tie same matter, cannot be considered here, unless tie evidence of it appears in tie record on appeal.

*484APPEAL from tbe Circuit Court for *Bane*County.

Action to compel an account, and payment of an alleged excess of partnership profits in defendant’s hands. A writ of *ne exeat*was obtained against the defendant, and from an order of court, refusing to vacate the writ, the defendant appealed.

*H.W.&cD.K.*Tenney, for appellant,

insisted that this was an action simply to ascertain and collect a debt arising out of a partnership, and therefore founded upon contract. Hence the writ of *ne exeat,*issued against the defendant was in violation of the constitution, which prohibits imprisonment “for debt arising out of or founded on a contract, express or implied.” Sec. 16, art. 1. Moreover, this writ, in its aspect of equitable bail to enforce payment of an equitable debt, is abolished by the statute of “ arrest and bail,” adopted from the New York Code. So, at least, it is held by the later authorities in that state. 2 Sandf. 626; 2 Cow. 68; 3 id. 121; 7. Leg. Obs. 300; 16 Abb. 43 ; 25 Ilow. Pr. R. 181; 1 Whit. Pr. 400.

*Stevens dk*Flower, for respondént,

contended that the appeal was improperly taken, because the subject matter of the order appealed from had been adjudicated in substantially the same way, by a previous order, not shown by the record, but made at chambers in denial of the appellant’s own motion, and which he'had not seen fit to question or disturb. 2. The constitutional provision as to imprisonment for debt is less restrictive than the non-imprisonment act of New York passed in 1831. Yet, even this act, broad as it is, is construed by the courts of that state as not affecting their power to issue writs of *ne exeat*in any case of equitable cognizance, when it appears the defendant is. about to elude the jurisdiction of the court. 1 Parb. Ch. Pr. .64Y; 3 Paige, 397; 5 id. 235. Neither is the writ abolished by the Code. In our state, statutes authorizing the writ were in force when the Code was adopted, and were re-enacted in 1858, jand with such modifications conformably to the new practice as to leave no room to question their present fórce and authority. *485R. S. 1858, cb. 116, § 4, and cb. 129, §§ 10, 11 and 12. 3. Tbe case at bar is one wherein tbe writ might properly issue. Tbe presence of tbe defendant, with tbe boobs and accounts in bis possession, is necessary to a correct settlement of tbe matters in controversy, whenever tbe action shall come to trial.

Cole, J.

This is an appeal from an order of tbe circuit court refusing to vacate and discharge a writ of *ne exeat,*and also refusing to have tbe bond given by tbe defendant thereupon, given up and canceled. The writ of *ne exeat*was issued upon an order of tbe circuit judge made at chambers. Tbe defendant was arrested upon it, and held to bail. He afterward moved tbe circuit court, as above stated, to have tbe writ vacated.

It is said, in tbe brief of counsel for tbe respondent, that tbe order appealed from was correct, because tbe subject matter of that order bad been previously adjudicated in tbe case, and that no appeal has been taken from such previous order. But what .-evidence have we in tbe record of any such previous adjudication ? Tbe record shows that tbe motion to vacate was beard upon tbe complaint, affidavits, order and writ of *ne exeat,*and the answer of tbe defendant. Perhaps, if the respondent bad shown, upon the bearing of this motion to discharge tbe writ, that a previous motion bad been made for tbe same purpose, tbe question would then be considered *res adjutfúcata.*Butj as tbe case now stands, we have no proper evidence of any such previous adjudication, and we must, therefore, consider tbe order upon its merits.

This action was brought to obtain a settlement of certain partnership matters stated in tbe complaint; for a general accounting by tbe defendant; for the appointment of a receiver of the partnership property ; and for an injunction restraining tbe defendant from interfering with or removing said property. It is claimed in tbe complaint, that, after pay*486ment of tbe partnership debts, the defendant will have in his hands a large sum of money justly due and belonging to the plaintiff. Now it is claimed, in opposition to the order appealed from, that the action is simply one to ascertain and collect a debt, or the excess of partnership moneys in the hands of the defendant. A partnership, it is said, is nothing but a contract, and the obligations of the partners to each other on account of dealings in the scope of the business necessarily arise out of contract, and a writ of *ne exeat*in such a case is nothing more nor less than imprisonment for debt, which is prohibited by the constitution of this state. The constitution certainly declares that *“*no person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied.” Art. 1, § 16. Rut we think a writ of *ne exeat*is not imprisonment for debt, within the intent and spirit of this provision of the constitution. It is said by the authorities to be in the nature of equitable bail, and issued only by the special order of the court, when the party against whom it is asked is about to leave the jurisdiction of the court, so that the decree of the court will be ineffectual. *Neville v. Neville,*22 How. Pr. 500; *Brown v. Haff,*5 Paige, 235; *Fuller v. Eme*rick, 2 Sandf. S. C. 626; *Johnston v.*Johnston, 25 How. Pr. 181. And this, as it appears to us, is the true nature and character of the writ of *ne exeat.*It prevents a person from going out of the state until he shall give security for his appearance, and is not imprisonment for debt, within the proper meaning and sense of those words.

There has been some conflict of opinion in New York, as will be seen by the above .cases, whether the writ of *ne -exeat*was not abolished by the Code. But no question of the kind can arise in this state under the plain provisions of our statute. See § 4, ch. 116, and. §§ 10, 11, ch. 129. And unless the writ is prohibited by that clause of our state- constitution which forbids imprisonment for debt arising upon contract, the *487circuit courts bare tbe power of requiring tbis kind of bail in cases wbicb are of equitable cognizance, where tbe defendant is about to elude tbe justice of tbe court by removing beyond its jurisdiction. "We bave already stated tbat we did not tbink tbe constitution abolished tbe writ.

Tbat tbe complaint and affidavits presented a proper case for granting tbe writ, seems to us plain. It appears that the defendant bad sold and conveyed all of bis property in this state, and converted tbe same into money or cboses in action, and was threatening to leave tbe state and remove to some of tbe western states or territories. He was going to depart beyond tbe jurisdiction of tbe court, and render it impossible for tbe plaintiff to bave an accounting and settlement of tbe partnership transactions in tbis action.

*By the Oourt.*— The • order of tbe circuit court, refusing to vacate and discharge tbe writ, is affirmed.