Ne exeat republica

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NE EXEAT REPUBLICA, practice. The name of a writ issued by a court of chancery, directed to the sheriff, reciting that the defendant in the case is indebted to the a 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.
     2. This writ is used 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. 2 Kent, Com. 32 1 Clarke, R. 551,; Beames' Ne Excat; 13 Vin. Ab. 537; 1 Supp to Ves. jr. 33, 352, 467; 4 Ves. 577 5 Ves. 91; Bac. Ab. Prerogative, C; 8 Com. Dig. 232; 1 Bl. Com. 138 Blake's Ch. Pr. Index, h.t.; Madd. Ch. Pr. Index, h.t.; 1 Smith's Ch. Pr. 576; Story's Eq. Index, h.t.
     3. The subject may be considered under the following heads.
     4.-1. Against whom a writ of ne exect may be issued. It may be issued against foreigners subject to the jurisdiction of the court, citizens of the same state, or of another state, when it appears by a positive affidavit that the defendant is about to leave the state, or has threatened to do so, and that the debt would be lost or endangered by his departure. 3 Johns. Ch. R. 75, 412; 7 Johns. Ch. R. 192; 1 Hopk. Ch. R. 499. On the same principle which has been adopted in the courts of law that a defendant could not be held to bail twice for the same cause of action, it has been decided that a writ of ne exeat was not properly issued against a defendant who had been held to bail in an action at law. 8 Ves. jr. 594.
     5.-2. For what claims. This writ can be issued only. for equitable demands. 4 Desaus. R. 108; 1 Johns. Ch. R. 2; 6 Johns. Ch. R. 138; 1 Hopk. Ch. R. 499. It may be allowed in a case to prevent the failure of justice. 2 Johns. Chanc. Rep. 191. When the demand is strictly legal, it cannot be issued, because the court has no jurisdiction. When the court has concurrent jurisdiction with the courts of common law, the writ may, in such case, issue, unless the party has been already arrested at law. 2 Johns. Ch. R. 170. In all cases, when a writ of Be exeat is claimed, the plaintiff's equity must appear on the face of the bill. 3 Johns. Ch. R. 414.
     6.-3. The amount of bail. The amount of bail is assessed by the court itself and a sum is usually directed sufficient to cover the existing debt, and a reasonable amount of future interest, having regard to the probable duration of the suit. 1 Hopk. Ch. R. 501.

References in periodicals archive ?
68) In the Court's view, the ne exeat right "granted Mr.
decisions by a number of foreign courts, holding that a ne exeat right
Abbott, (3), the Fifth Circuit considered whether one parent's rights of access, also known as visitation rights, coupled with a ne exeat clause created rights of custody.
10) The court also stated that while the removal of the child frustrated the Chilean court's order, the father's rights of access, however enhanced and protected by the ne exeat order, were not sufficient to create the requisite rights of custody that warrant the greater protection intended under the Hague Convention.
242) Since the right of removal is available only for a breach of custodial rights, parents with a right of access and a ne exeat clause have argued that the clause gives them a right to determine a child's place of residence and thus a right of custody for purposes of the Convention.
The order gave the mother sole custody of the child and the father a right of reasonable access, and included the aforementioned ne exeat clause directing that the child not be removed from Hong Kong without the leave of the court or the consent of the other parent.
The authorities] hold that the doctrine of ne exeat does not create a right of custody, reasoning that, if it did, the effect would be to send the child to a parent who did not have custodial rights but merely a right to prevent the child from being removed to another jurisdiction.
The majority in Croll decided that a ne exeat clause (117) in a permanent foreign custody order did not confer custody rights on the noncustodial parent that would warrant return of a child under the Convention; the court expressly distinguished certain foreign cases in which return had been ordered on the basis that "temporary custody" had been "conditioned on non-removal of the child pending further proceedings.
A Customs Order, or a Prevent Departure Order, is similar to writ of ne exeat republica, but is a creature of the executive branch rather than the judicial branch.
Recently, the Eleventh Circuit, as well as various state courts, held that a ne exeat right creates rights of custody under the Hague Convention.