The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-11-29

restrain the defendant from molesting her retreat,
,1 ne when the husband threatens to leave the
State is essential 10 justice and had been granted
in like cases, and he allowed the writ.
is all this done away with by the Code, and these
salutary Offices Of this writ abolished by itl
None of these cases are founded upon the narrow
idea so much dwelt upon. that the writ has as its
sole office the requiring OF equitable bail for equit-
able debts, but upon the broader principle that it is
necessary TO the due exercise of this courts peculiar
and exclusive jurisdiction, and to prevent a failure
OF justice. Are we compelled to declare that this
pnncple is blotted out Of our system of jurispru-
dence! Surely not Certainly we cannot be re-
CURED to deny to parties this long accustomed and
efficient remedy unless the language of the statute
ie too plain 10 be mistaken.
In Mitchell VS.. Bunch, supra, the Chancellor
said, that if the court had jurisdiction of the cause,
and the defendant intended TO leave The State, so
that the decree against him would be Intellectual,
the complainant had right to the'writ and if this
be true of equitable debts II must be equally true
OF all the other cases in which the writ could ordi
narily issue.
The Code has nowhere in express terms abolish
ed the writ OF aeeredt such abolition is inferrable
only from the enactment in sec IFS, that no person
shall be arrested in civil action, except as pre-
scribed by the act And il becomes important to
inquire whether the arrest here spoken of is of the
same nature and effect with the operation of the
writ of ne Great, actually TO supersede il, or
whether il is of those provisional remedies ex-
stiDg at the enactment OF the Code, not other wise
provided for tberein-S pa
One marked difference between an arrest under
the Code and eIOGt, lis thisthat the writ never
issued where the person of the defendant could not
be touched under the decree, either on execution
or atiachme Mt (Gleason VS. Bisby, Clarke, SOL !;
Johnson VS.. Giendening, 8 Gill ~ John, 1857
The arrest, in an action at law, has not now. and
never has had, any such limitation
Another difference is in the nature of the arrest.
Under the code SlS7, the defendant is TO give bail
that he will, at all times, reader himself amenabe
TO the process OF the Court during The tendency of
the action, and 20 such may be issued 10 enforce
the Judgment therein. Upon ne Great, the bail is
merely that he will not go, or attempt to go, into
parts without the State, without leave ofthe Court.
In the one case, the Sheriff is commanded TO ar
rest the defendant, and keep him in custody until
discharged by law.-(Code, SiSJ) In the other
case, he is merely commanded TO cause the defend
ant TO come before him, and give security not to
depart The State.
In one case, the surety may discharge themselves
by srrrenderng their principal la the other, they
can never be discharged, except by order OF the
Court.
Again, it is not necessary, though il is usual that
the eIeat should be by wril--it may be by order
enforced by attachment for contempt; Such is the
practice in the Enesh Court of Exchequer, where
order is, III the first instance, granted that the
party, within limited time, give security that he
Will not depart the kingdom and in default, that
attachment issue Attorney Generalvs Mucklow.
| Price, 2S9)
see nothing in the code to prevent such prac-
tce, and, in case il should be adopted instead Of
issuing the writ in the first instance, section us
ment, as for contempt
In an arrest under the code, the bail can be
Prooeede against for default only by action
(sectiOn 1907, but on a in case of
breach of the bond, the Court may order the secu-
rifles te pay the money into court.-( Musgraye vs..
Medley, Mer., 49,
In all essential particulars, then, the nc Great is
unlike The arrest provided for In the Code In its
nature and effect, and in the cases to which It is
applicable, il is unlike, and it seems 10 me that,
constituting this statute by the old and well es-
tsblished rules of interpretation il is impossible 10
say that the nc cLeat is otherwise provided for IN
the Code, and therefore abolished by it,
The relief sought in this case OF the ne ereat,
ard the sVIEiicdUtt, was only that which the
Court of Chancey has long been in the habit Of
granting, as appurenant 10 rs peculiar and exclu-
slye jurisdiction, q Story, Eq. j., sectisn ], i6i),
and was precisely that which was sought for and
obtained from Chan. Kent, in Denton vs.. Denton, l,
J. &. r., 36i, and cannot win propr:ety be denied
10 suoYs, when asked for in a proper case
Having thus arrived at the conclusion that the
writ OF Hc CJcQt Is not abolished provisional
remedy, 1t only remains for me TO inquire whether
proper case was pfese "a TO Justify It's allowance.
IL hes ever been the practice of the Court of
Chencery 20 deny Il where the applicant for il had
otherwise an adequate remedy al law; as, for iu-
sienee, Ia cases Of concurrent jurisdiction, where
The defendant might be arrested III a suit az law;
and VIII be clearly proper still 10 adhere 20 that
rule 10 refuse the writ, where otherwise the de-
iendsnt may he arrested under the code, and 10
allow u only in those where without It there
may be failure OF justice, and sailors be deprived
Of their legitimate ught-to resort 20 our courts for
The redress Of wrongs, and the prevention Of in
jules.
so, too, il has not been usual, at least in the
English courts, to grant he writ in suits for al-
UULy until decree for slimony has passed
And confess that Il II had not been for the case
OF Denton IS Denton, and the action Of Chancellor
ht nj therein, l should for this reason have hesi-
tsed, and, perhaps, altogether have refused the
wit; but did not ieel myself at liberty to depart
from or disregard rule land down By that eminent
To. j., section l. i52, y, and ecqulrsccd in.lnd
puctitcd ugon IN this State, for period OF thirty
hive yearc
IN determining he question whether this 10
proper case IN which the writ ought TO be allowed,
We are necessarily confined entirely 70 the case as
stated On the pam Of the plaintiff, the defendant
having, with much proPneiy, confined himself
~ hin the limits necessary 10 raise the question OF
law involved IVA he motion.
Viewed ia that aspect, this case Is like that OF
Denton rs. Denton, m every essential PARTICULAR,
save one. In that case, the defendant had not
only put his wife away from him, but had ahan-
duLod Ter without home or support, and denied
her al support. ia thIs case the defendant has
made ample provision fCf his wife, and Cau'd 10 10
he puncJualy paid 10 her No threat Of his % with
draw that support has been SET ND No avCwal of
an intention on ms Fart 70 discontinue It has been
alleged, Tut g resls on the icsrs Of ihs painful
On her suspicious that be may do 90. That he in-
tends 70 leave The state b. sul cieatiy ayowed be-
cause he already asserts thai his residence Is in
smother STATE. But there Is no reason given for
HpWChCbdinC that lac viii not return 20 u from time
10 lime, ana be nnaily within The jurisdiction of
this Couri when It's judgment shall be pronounced,
and none lcr believing mat he will attempt 10 re.
move be large properly beyond the Jurisdiction Of
Tie court and there is, as have s8d nothing but
ne ieors OF the plaintiff thai he may do Otherwise.
Ihts De- not sufficient TO warrant the granting Of
60 high ITo'iuorGl rene dy Facts must be set
tut On which the court can repose ils belief; aud
those uYon " hiCh the plaintiff relies, aud 10 which
she points re the foundation ct her belief, are not
enough TO work in OUr minds the same belief which
obtains M hers.
For ihs reason think the writ oi ne cleaf was
lmIIoyidenly issued, and the order OF the Special
Tenn olschBTRlng 10 ought 10 be affirmed
A coy.
VIM Il. ARMSTRONG, Judges Clerk.
.IIIrNE Court a. rE STATE on INV YORK.
C0tt0Igus v IOITtSt against Eduin Forrest To-
y IufC Of EtbFsUtu0HiG, Cifu aNd CoiiufU Of phtid
oUJ hia, ss.-Henrietie Forrest OF SAID city, single
wtmsu, being sworn, says she Is the sister Of The
said Edwin Forrest thar he was born in the dis
trCt ~ Suuthvaik, county Of Philadelphia and
Af.Fa nj aI s.sss