Jackson v. Jackson

Thompson, J., delivered the opinion of the Court. Under Article 5 of the Declaration of Rights of the Constitution of Maryland of 1867, the inhabitants of this State are entitled to the common law as it existed in England on July 4, 1776, assuming of course, Maryland has made no change in the intervening period of time. Fischer v. Ball, 212 Md. 517, 129 A. 2d 822, 825 . See Latz v. Latz, a/k/a Schafer, 10 Md. App. 720, 730 , 272 A. 2d 434 ; State v. Magliano, 7 Md. App. 286, 292 , 255 A. 2d 470 .

One of the rights to which the inhabitants of Maryland are entitled is, in an appropriate case, to request a court of chancery to issue a writ of ne exeat. The writ is described in Bouvier’s Law Dictionary as follows: “The name of a writ originally employed in England as a high prerogative process, for political purposes; Story, Eq. Jur. § 1467; 50 N. H. 353; but now applied in civil matters only, issued by a court of chancery, directed to the sheriff, reciting that the defendant in the case is indebted to the complainant, and that he designs going quickly into parts without the state, to the damage of the complainant, and then commanding him to cause the defendant to give bail in a certain sum that he will not leave the state without leave of the court, and for want of such bail that he, the sheriff, do commit the defendant to prison. ⁶¹⁷ “This writ is a part of the English chancery-practice and is usually a part of that practice in states where it is in force. * * * “This writ is issued to prevent debtors from escaping from their creditors. It amounts, in ordinary civil cases, to nothing more than process to hold to bail, or to compel a party to give security to abide the decree to be made in his case; >9 The only Supreme Court case discussing the writ seems to be Ginsberg v. Popkin, 285 U. S. 204 , 52 S. Ct. 322 , 76 L. Ed. 704 , in which the Court held that the writ was not issuable against officers of a bankrupt corporation.

The Court said at 285 U. S. 209 , 52 S. Ct. 324 : “The writ is a restraint upon the common right of movement from place to place within the United States and upon emigration. It has been abolished in some states and its use is largely regulated and restricted by statute in others. And section 261 of the Judicial Code strictly governs the granting of the writ in federal courts.” Under Section 261 (later 28 U.S.C.Á., § 376), United States District Courts were specifically authorized to issue the writ of ne exeat. Although the specific statute has been repealed, the subject matter may be covered by the statute authorizing Federal Courts to issue “all necessary writs.” 28 U.S.C.A. 1651.

Under the English law it was firmly established the writ would not issue in cases of alimony unless the alimony had been already decreed and then only to the extent of the amount due. The proposition is so well established that an extensive analysis of the English cases is not necessary. 1 We will, however, quote by way of illustration from the case of Shaftoe v. Shaftoe, 7 Ves. Jr. 171, 173, (Ch. 1802) : ⁶¹⁸ “ [I] t is wrong, that, before that decree is made, this Court is to take it for granted, that there will be a decree for alimony and separation, and to shut up the husband pending that suit for any sum it shall name, lest there should be such a decree. Suppose the plaintiff should miscarry in her suit, after this writ has issued: what recompense can be made to him?

If the suit has effect, the difficulty is, for what sum to mark the writ. The ground, that the plaintiff would be without remedy, will not do; for that would apply to a judgment at law, where the man cannot be taken in execution.” In an early American case, Denton v. Denton, 1 Johnson’s Ch. Rep. 364, 441, (New York 1815) Chancellor Kent allowed the issuance of the writ prior to a decree for alimony primarily on the basis that it “is essential to justice” to prevent the departure of the husband from the state where the wife would be left without support. The Chancellor also cited some English cases which do not seem to support the action taken.

See the discussion in Bailey v. Cadwell, 16 N. W. 381 (Michigan 1883), where the Court applied the English rule saying it had no power to extend equitable authority and saying further it was not allowed to interfere with personal liberty without finding some authority for it in statute or precedent. Some courts have followed the New York lead holding that the writ could issue prior to the entry of a decree for alimony. See 8 A.L.R. 327 ; National Automobile and Casualty Insurance Co. and Reed Bail Bond v. Queck, 1 Ariz. App. 595 , 405 P. 2d 905 ; Lamar v. Lamar, 123 Ga. 827 , 51 S. E. 763 ; Blount v. Blount, 231 Miss. 398 , 95 So. 2d 545 ; Ex Parte Grbic, 170 Wis. 201 , 174 N. W. 546 .

In Maryland there is no statute nor constitutional provision expressly modifying the common law with respect to the writ. Miller, in his Equity Procedure, supra, § 241, discussing equitable procedure in Maryland, stated that ⁶¹⁹ the constitutional provision abolishing imprisonment for debt was generally regarded in this state as having abolished the writ. 2 He did cite, however, an earlier writer, Phelps, Jur. Eq., § 125, who felt that in some instances the writ could be used. He also stated that prior to the Constitution of 1851, the writ was frequently used in Maryland and “was an arrest in the nature of equitable bail, and the equitable demand must have been actually payable for a liquidated sum.” The relatively new Maryland Rules, however, clearly contemplate the use of the writ in cases involving alimony or support of children.

Rule S72 d: “In an action involving alimony or support of children the writ of ne exeat may issue upon petition verified by or on behalf of the person applying for the writ, stating that the person against whom the writ is to be directed intends to leave the State and place himself beyond the jurisdiction of the court.” The few Maryland cases which have considered the writ have been decided on the basis of the English common law and indicate a cautious approach to allowing its issuance. In Cox’s Executors v. Scott, 5 H. & J. 384 (1822), the Maryland Court held the writ could not issue where the claim was based upon a note not yet due, saying at 389: “The late decisions in England show that the writ of ne exeat can in no case be sustained but where the Court of Chancery hath original or concurrent jurisdiction. But this Court will not be controlled by those decisions further than is consistent with the sound policy of the commercial interest of the country, and the rules of jus ⁶²⁰ tice. Those cases decide, that to sustain the writ, the demand must be an equitable demand, in the nature of a debt actually due — a debt due in conscience, and where the party has no remedy at law.” In Johnson v. Clendenin and Way, 5 G. & J. 463 (1833), a writ of ne exeat had been issued apparently on a liquidated claim cognizable in equity.

The Court held that upon the surrender of the body of the debtor to the sheriff upon an attachment under the final decree, the sureties on the ne exeat bond were released even though the prisoner subsequently escaped from the sheriff’s control. The only reported Maryland case that has come to our attention concerning the use of the writ of ne exeat in a case involving alimony or support, is Bayly v. Bayly, 2 Md. Ch. 326 (1847). In that case the chancellor expressly refused to consider whether or not the writ was properly issuable subsequent to the filing of the bill, but prior to the filing of the answer; he held that upon the filing of the answer denying an intention to leave the state, strongly contesting the wife’s entitlement to alimony and her assessment of the value of the defendant’s estate, the writ must be discharged. The Court at page 332, “It would seem to be settled in England, that the Court of Chancery will not issue the writ of ne exeat regno, in cases of alimony, unless there has been an actual decree for alimony by the Spiritual Courts.” This case has been cited as strongly putting Maryland in line with the Michigan Courts and holding that a writ of ne exeat cannot issue prior to the time a court has decreed alimony or support. 8 A.L.R., supra,