Ksiazek v. Ksiazek

Decision Date12 June 1918
Docket NumberNo. 42/133.,42/133.
PartiesKSIAZEK v. KSIAZEK.
CourtNew Jersey Court of Chancery

(Syllabus by the Court.)

Suit by Sophie Ksiazek against Alexander Ksiazek, pending which a writ of ne exeat issued, and defendant gave bond with sureties and the sureties' application for leave to surrender him after final decree was denied, and defendant was thereafter adjudged guilty of contempt and imprisoned, and the sureties apply for their discharge. Order discharging the sureties advised on terms.

Frey & Vanecek, of Newark (John Q. Frey, of Newark, of counsel), for the motion. Pomerehne & Laible, of Newark, opposed.

LANE, V. C. Pending the suit a writ of ne exeat issued. Defendant gave bond with sureties, the condition of which was in the old form that he would not depart the jurisdiction without leave. Subsequent to final decree, an application was made by his sureties for leave to surrender him. This application was denied. Thereafter an application was make to punish him for contempt; he was adjudged guilty and incarcerated.

The sureties now apply for their discharge. That the sureties cannot surrender their principal is the law of this state. Schreiber v. Schreiber, 85 N. J. Eq. 303, 96 Atl. 85. Vice Chancellor, at page 306, affirmed without criticism. 86 N. J. Eq. 437, 99 Atl. 117. See, also, In re Griswold, Petitioner, 13 R. I. 125.

The statement in Tothill, reported in 21 English Reprint, 110, that bail in chancery is discharged upon bringing in the principal, as at common law, does not express our law. It was this statement upon which the Vice Chancellor acted who accepted a surrender of the principal in Marino v. Marino, hereafter noted.

The question is whether the principal being in custody for contempt for failure to obey the final decree, the sureties are entitled to their discharge.

In Le Clea v. Trot. Prec. in Chanc. C & H. 230 (1704) 24 English Reprint, 112, the Lord Keeper held that the sureties should not be discharged after answer put in by the defendant, nor even after decree against him, and commitment for £19,000 decreed against him. In Debazin v. Debazin, 21 English Reprint, 204 (1743), it appeared that, a writ of ne exeat sued out, the defendant entered into a bond with two sureties, for his not departing the kingdom. The cause was afterwards heard, and there was a decree against the defendant for the same matter for which the ne exeat issued. The defendant being in contempt and in custody for not performing the decree, the sureties applied and obtained an order that they should be discharged, and the bond as to them canceled. In Stapylton v. Peill, 19 Ves. Jun. 615, 34 English Reprint, 644 (1816), application was made to discharge the sureties prior to final decree, where the defendant was in custody for contempt for failure to put in an answer, and Lord Chancellor Eldon refused to make the order, observing that he did not recollect such a motion except once, and then it was refused, and the editor contributes the following note:

"See Beames on Ne Ex. Reg. 56, in Le Clea v. Trot, Pre. Ch. 230, where this application was refused, and in Debazin v. Debazin, 1 Dick. 95, where it was granted, the commitment was for not obeying the decree to pay the money, for which the writ was granted."

Upon the authority of Debazin v. Debazin, the Court of Appeals of Maryland in Johnson v. Clendenin, 5 Gill & J. 463, affirmed an order discharging the sureties in a case where the defendant had been committed to jail for not complying with the final decree and afterwards had escaped from custody. The arguments of counsel in this case are very instructive.

In Wauters v. Van Vorst, 28 N. J. Eq. 103, the Chancellor approved Debazin v. Debazin. That case cannot be considered an authority, however, that the court must discharge the bail; the Chancellor merely holding that it has the power. In Elliott v. Elliott, 36 Atl. 951, Vice Chancellor Reed held, where the condition of the bond was in the form provided for by the rules, that after final decree, and even after a bond given to comply with the final decree, the bond on ne exeat was not superseded, and suit might be brought upon it. Vice Chancellor Howell, in Marino v. Marino, in an unreported memorandum, which case, by the way, was the one in which there was the irregular surrender of the principal referred to by Vice Chancellor Stevenson in Schreiber v. Schreiber, says:

"Prior to 1871 it was the practice in this state for the defendant so arrested to give bond in what was known as the common form, viz. that he would not depart from or leave this state without the permission of the court. This was considered to be practically a bond for appearance, although not so in terms, and if the defendant remained within the state until final decree, the condition of the bond was held to be satisfied."

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2 cases
  • Nelson v. Sanderson
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 30, 1934
    ...of the court and had gone outside the jurisdiction. The matter of discharge rests in the discretion of the court. In Ksiazek v. Ksiazek, 89 N. J. Eq. 139, 104 A. 315, there had been no breach of the ne exeat bond, but the defendant was being held in contempt for the nonpayment of accrued al......
  • Coursen v. Coursen
    • United States
    • New Jersey Superior Court — Appellate Division
    • May 5, 1969
    ...1916). Second, the matter of discharge of the surety on a Ne exeat bond rests in the sound discretion of the court. Ksiazek v. Ksiazek, 89 N.J.Eq. 139, 104 A. 315 (Ch.1918). Were we now to review the prior refusals to discharge, we cannot say on what is now before us that those determinatio......

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