In re Petition of Griswold

• Decision Date: 20 September 1880
• Citation: 13 R.I. 125
• Parties: PETITION OF JOHN N. A. GRISWOLD in Hazard v. Durant.
• Court: Rhode Island Supreme Court

13 R.I. 125

PETITION OF JOHN N. A. GRISWOLD in Hazard v. Durant.

Supreme Court of Rhode Island.

September 20, 1880

In accordance with an agreement made between the parties litigant to a bill in equity, a respondent who had been arrested on a writ of ne exeat filed a bond with a surety " to abide and perform the orders and decrees of the court in the cause," whereupon the writ was discharged.

Subsequently and before final decree the surety moved for an order discharging him from liability on the respondent principal's putting himself within the jurisdiction of the court and subject to its decrees.

Held, that the motion could not be granted.

Held, further, that a bond to " abide and perform" differs from a bond to " " " " abide."

Held, further, that on discharging a writ of ne exeat a court may in its discretion require the respondent to give security to perform the decree.

In Rhode Island the right of bail to surrender his principal is by statute confined to civil actions.

PETITION to be relieved from a bond.

The petitioner was one of the sureties in a bond given by Thomas C. Durant to obtain the discharge of a writ of ne exeat . See Hazard v. Durant 11 R.I. 195, 196. The bond was filed August 24, 1868.

Abraham Payne & Samuel R. Honey, for petitioner.

Charles S. Bradley & Francis B. Peckham, Jr., contra .

MATTESON J.

The respondent Durant, being in the custody of the sheriff on a writ of ne exeat issued against him, entered into an agreement in writing with the complainants Isaac P. Hazard et al., by which he agreed to file a bond, with surety, in the penalty marked in the writ, to abide and perform the orders and decrees of the court in the cause, and the complainants agreed that thereupon the writ should be discharged, and that the court might enter its decree accordingly. Pursuant to this agreement, Durant filed a bond to the said complainants, with the petitioner and another as sureties, conditioned to abide and perform the orders and decrees of the court in the suit, and thereupon the court entered an order discharging the writ. The petitioner prays to be discharged from this bond on his principal's placing himself within the jurisdiction of the court and subject to its orders and decrees.

The petitioner in his argument treats a bond to abide and perform the orders and decrees of the court as equivalent to a bond to abide the event of the suit. He contends that the object of the writ of ne exeat is not to obtain security for the debt, but merely that the respondent will be present within the jurisdiction upon the entering of the final decree in the cause, to be dealt with by the process of the court and thereby compelled to perform its order; and he insists, therefore, that he is entitled to be discharged from liability upon the bond, on Durant's placing himself within the jurisdiction of the court. We do not assent to this argument. We cannot regard a bond to abide and perform the decree in the suit as equivalent merely to a bond to abide the event of the suit. To do so would be to ignore wholly the word perform contained in the former. Though it is true that courts will generally discharge a writ of ne exeat upon the respondent's giving security to abide the decree on the hearing of the suit, they may require the respondent to give security to perform the decree. In Robertson v. Wilkie, Amb. 177, the order was that the writ should be discharged upon the defendant's giving security in the sum of £ 1,000, by recognizance with two sureties, conditioned to abide and perform such decrees and orders as the court should make. So also in Atkinson v. Leonard, 3 Bro. C. C. 218, the order was that the writ be discharged on giving such security as the master should think proper, to pay what should be found due upon the account.

Moreover the present bond...