#### *W. W. Ancrum et ux, et al.*vs. *J. H. Dawson and L. E. Dawson. ex parte, Dawson.*

1. The "writ of ne exeat is in the nature of equitable bail. But a party will not be discharged from it, neither will the Court interfere, unless the party seeking to dissolve the writ is in actual custody.

3. The bail of a party, who has been arrested by virtue of a writ of ne exeat, is not discharged because the party had taken the benefit of the prison bounds act and assigned his whole estate, in two other cases, in which he had been held to bail.

3. There is a difference between the insolvent debtors act, and the prison bounds act; by the prison bounds, act, a discharge under it is effectual only as to the particular case in which the debtor is arrested and makes his assignment.

*Before*Dunkin, Chancellor, *at*Charleston, *February Term1*1842.

The facts of this case can more properly be understood by the pleading. The petition is therefore given at length, which is as follows;

“The petition of Laurence E. Dawson respectfully shew-eth — That on, or about the 27th day of January, 1841, Wm. W. Ancrum and Harriet, his wife, and John L. Dawson filed their bill in this Honorable Court, setting forth, that they had before that time, to wit: in April, 1838. filed another bill against the said John H. Dawson, and your petitioners, for an account and settlement of the estate of the mother of the said Harriet and John L., and that upon the hearing of the said cause, it was, among other things, ordered, that your petitioner should within thirty days after notice of the said decretal order invest, to the uses of the will of the said complainant’s mother, the sum of <$9,-996 42 in securities, to be approved by the Master; that on exceptions taken to the Master’s report, a decree was made sustaining some and overruling others of said exceptions, and referring the accounts back to the Master; — and setting forth further, that your petitioner, in order to evade said decree, was about to remove from this State before they could obtain a writ of attachment, or serve a writ of execution of the decretal order to invest the said sum of money; and that he, your petitioner, was also in the act of removing all his negroes and other moveable property out *406of the State; and praying for a writ of *ne exeat*to resfrian him from leaving the State, and also for an injunction to restrain him from removing the negroes and other moveables in his possession beyond the limits of the State.— Whereupon, an order was made, directing that a writ of *ne exeat*should issue to restrain your petitioner from leaving the State without permission of this Court: and also a writ of injunction to prevent the removal of the property in his possession. In obedience to the said writ of *ne*exeat, your petitioner gave bond, with security, to the Master with the usual condition. Your petitioner afterwards filed his answer to said bill, wherein he admitted that it was his intention to depart from the State, but denied that it was with any view to evade the said decree, and set forth that the negroes, and other property in his possession, were embraced in certain deeds of settlement to the use of his wife and family, and that he had no interest in the same which could be applied to the payment of his debts, or in any manner reached by his creditors; and the said deeds being produced, your petitioner moved that the said injunction should be dissolved as to all the property covered by the said deeds, which motion was granted as to all the property embraced by one of the said settlements, which was executed before, and in, consideration of your petitioner’s marriage, and included only the property of his wife, and refused as to the property covered by the other deeds which were executed after his marriage; but the said order was, without prejudice to the rights of other parties who might be beneficially interested in the said deeds and who were not parties to the said bill.

And your petitioner further shews, that after the said order, being very desirous to leave the State for the pnr-pose of settling with his family in Alabama, he applied to the said complainants to consent to discharge him from the said writ of *ne*exeat, and proposed for their security, that the property included in the said deeds of sett'ement, except the first, (under which, it is conceded, he has no rights which can be reached by his creditors,) should be put into the custody of some confidential and disinterested person, who should be approved by them, to await the decision of this Court, upon a case to be made between *407the proper parties as to the extent of your petitioner’s interest in the said property; so that if it should appear that he has any interest which can be applied to the payment of his debts, they might have their full share of the benefit of the same. And your petitioner further shews, that he has no other property, nor any other means of satisfying the demands of the said complainants, on complying with the said decree, than such interest, as he may have, (if he has any,) in the said settled property. And he has, lately, upon surrender of bail, in two suits against him, taken the benefit of the Act commonly called the prison bound’s Act and assigned all his .estate, including all the interest he might have in the said settled property, and which his creditors could make available for the payment of their demands, to satisfy the claims on which the said actions were brought; and he further shews, that he is unable to give security to perform the said decree. And he hoped, that the said complainants, well knowing the premises, and that he had nothing else wherewith to satisfy their demand than as above stated, would have complied with his so reasonable request. But they have, notwithstanding, refused. Your petitioner therefore prays, that upon the negroes and other moveable property, embraced in the said deeds of settlement, (except the first,) being put into the custody of a receiver, to be appointed by this. Court, the said writ of *ne exeat*may be discharged, and your petitioner permited to leave the State.”

Upon hearing the foregoing petition read his Honor, Chancellor Dunkin, made this order to it.

“The writ of *ne exeat*is in the nature of equitable bail. No authority was adduced sustaining the position assumed by the defendant’s solicitor. But in Lowe’s case, (3 Eq. Rep. 269,) it is said, by Chancellor DeSaussure, that a discharge under the insolvent debtor’s Act in the Court of Common Pleas, if properly obtained, would discharge an attachment issuing from the Court of Equity for non-payment of money. It seems that the defendant, Laurence E. Dawson, has been recently admitted to the benefit of the prison bound’s act; and his petition in this cause states, on oath, that he has no other property than that which he ofifers to surrender.

*408Or principle, I should think, from analogy to the case of Lowe, that the order of *ne exeat*should be discharged. But he is not in custody, and without a direct authority, I am not willing to rescind the order, as the error, if it be such, can be promptly corrected by tbe proper tribunal. The motion to discharge the order is dismissed.

The defendant, L. B. Dawson, appealed from this order and renewed his motion in the Appeal Court, on the following grounds:

1. That the writ of *ne exeat*being'in the nature of bail process, the defendant is in the custody of his sureties to the *ne exeat*bond, and is entitled to be discharged in the same manner as if he had been held to bail at law.

2. That the defendant being unable to execute the decree of the Court; if he is not entitled to be discharge from the *ne exeat*in the mode proposed by this motion, the consequence would follow that he might be subjected to perpetual imprisonment, or detention within the State, against the principles and spirit of the laws for the relief of insolvent debtors, which, if they do not apply in terms to this Court, at least permit a guide for it in the administration of justice between debtor and creditor.

Mazyck, 2 Hill. 641; *Commissioner in Equity*vs. *Philips,*bail may surrender; suppose a surrender.

Lessesne, contra:

Bearnes *ne exeat*58 — 66; lb. 21. Hopkins Ch. Rep. 499; demandable, of right.

Bailey, in reply:

1 Smiths Ch. R. 576 *et seq.*Jac. *&*W. 414. Suit may last for years.

Curia, *per*Bunkin, Chancellor.

It is argued that where, as in this case, the writ of *ne exeat*issues upon a money demand, it is in the nature of a bail writ; and that the bail was discharged, in the case before us, in consequence of the petitioner’s having taken the benefit of the prison bounds Act and assigned his whole estate in two other suits in which he was lately held to bail. But the Court is of opinion that there is a distinction in this respect between the insolvent debtor’s act and the prison bounds act and that upon a proper construction of the latter, a discharge under it is effectual only as to the particu*409lar case in which the debtor is arrested and makes his assignment. The Court is not prepared to say by what form of proceeding the petitioner in this case (should he be surrendered by his bail) may be relieved; with the strongest inclination to exercise such power as it may possess over the subject, in obedience to the claims of humanity, it cannot fail to percieve that it would be manifestly improper to interpose, while, as yet, no necessity for its interference exists. The petitioner has not yet been surrendered and possibly may not be surrendered by his bail. The application is to substitute certain property, of doubtful title, in lieu of that security which the creditor has under the writ. If the creditor is, by law, entitled to the writ, the Court cannot, without his consent, bargain that right away. Should the bail surrender his principal, the latter may then take such steps as he may be advised will be proper in his cáse. Whether the prison bounds act, under its peculiar terms of “mesne process in civil action,” may be sufficient for his purpose; or whether an analogous proceeding in this Court should be adopted, will be questions then arising on an actual case; and although very difficult, will be more easy of decision, than when presented as abstract propositions. The motion is discharged.

Peronneau, Mazyck *&*Finley, pro appellant.

Petigru, *&*Lessesne, contra:

We concur.

David Johnson, J. Johnston, Wm. Harper,