Nelson v. Sanderson

• Decision Date: 30 March 1934
• Parties: NELSON v. SANDERSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

285 Mass. 583

189 N.E. 792

NELSON

v.SANDERSON.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1934.

Exceptions from Superior Court, Suffolk County; Donnelly, Judge.

Action on a writ of scire facias by Lavinia Nelson against Robert H. Sanderson, as surety on a recognizance executed by Lida Beal, as principal. Judgment allowing plaintiff only nominal damages, and she brings exceptions.

Exceptions overruled.

G. W. Cox, of Boston, for plaintiff.

H. R. Bygrave, of Boston, for defendant.

RUGG, Chief Justice.

This action, on a writ of scire facias, is against the surety on a recognizance executed by Lida Beal as principal.

The case was heard on its merits. The trial judge made findings of fact, rulings, and an order for judgment and execution. So far as material to the grounds of this decision, they are in substance as follows: The plaintiff, in November, 1930, brought a bill in equity against Lida Beal to reach and apply certain jewelry in her possession. After a hearing, an order for decree was entered to the effect that Lida Beal pay the plaintiff $10,553.76 with interest and costs, or, failing such payments, that she deliver the jewelry to a receiver appointed by the court. The plaintiff then secured a writ of ne exeat and Lida Beal was arrested upon it on June 18, 1931. On the same day she was discharged upon giving a recognizance on which one Stanwood was surety, the condition of which was that Lida Beal would not go or attempt to go unto parts beyond the Commonwealth without leave of the Superior Court. A final decree was entered June 29, 1931, from which Lida Beal appealed. On September 10, 1931, Stanwood had Lida Beal arrested and surrendered her upon that recognizance. On the same day, Lida Beal was discharged from arrest by executing a second recognizance, on which the defendant, Sanderson, was surety, for $11,000, the condition of which read as follows: ‘Now, therefore, the condition of this recognizance is such, that if the said Lida M. Beal shall not go or attempt to go unto parts beyond said Commonwealth without leave of said Court while said writ of Ne Exeat remains in force, or until the further order of said Court in respect thereto, then this recognizance to be void, otherwise to be and abide in full force, power and virtue.’

The appeal of Lida Beal to this court was disposed of in January, 1932. See Nelson v. Beal, 278 Mass. 130, 179 N. E. 598. After rescript, on February 9, 1932, a final decree was entered that the plaintiff should be paid $10,553.76 with interest, or that the defendant should turn over certain articles of jewelry to a receiver appointed by the court. Pending the appeal, Lida Beal was at liberty by virtue of the recognizance. In January, 1932, and again on February, 22, 1932, she went to New York without obtaining leave of court, remaining a few days on each occasion. She had no intent to disobey the court order by going on these trips and was at all times ready to be present in court when her presence was required. On March 31, 1932, Lida Beal was, after hearing, committed to jail for contempt for disobeying the final decree of February 9, 1932, and remained there until the hearing now under review.

This writ of scire facias was then sued out in April, 1932, by the plaintiff against the surety on the second recognizance. The trial judge found and ruled that there had been a breach of the recognizance and that judgment must be entered in its penal sum, but that in equity and good conscience only nominal damages were due the plaintiff and execution should issue in the sum of $1. The plaintiff's exception brings the case here. In her brief she states the issue to be the measure of damages.

In this Commonwealth the use of the writ ne exeat as an equitable remedy to obtain security in the nature of bail at common law is well established in such cases as the instant one to enforce equitable, liquidated and pecuniary demands. Rice v. Hale, 5 Cush. 238. Compare Palmer v. Palmer, 84 N. J. Eq. 550, 95 A. 241. It is customary for the defendant, if possible, to secure his freedom by filing a bond or recognizance conditioned upon his not leaving the Commonwealth without permission of the court and upon his appearing in court and abiding by the final decree or order of the court. In the instant case, the recognizance had as its condition that Lida Beal ‘shall not go or attempt to go unto parts beyond said Commonwealth without leave of said court while said writ of Ne Exeat remains in force, or until the further order of said Court in respect thereto.’ There is no condition that she abide by the final decree of the court.

The recognizance should be literally read and construed. There was a breach in the case at bar. Musgrave v. Medex (1815) 1 Meriv. 49; Harris v. Hardy, 3 Hill (N. Y.) 393; Utten v. Utten (1815) 1 Meriv. 51. Lida Beal did not remain in the Commonwealth. She went out of the Commonwealth on two separate occasions after executing this recognizance. It has been held that a court of equity, in these circumstances, has jurisdiction to order the amount of the bond paid into court. Schreiber v. Schreiber, 85 N. J. Eq. 303, 96 A. 85, affirmed in 86 N. J. Eq. 437, 99 A. 117;Murphy v. Paris, 57 App. D. C. 19, 16 F.(2d) 515. It was also decided in Wauters v. Van Vorst, 1 Stew. (28 N. J. Eq.) 103, that a court of equity has power to discharge the surety for bail if it feels the condition of the bond has been met. In that case, as there had been no breach of the bond, the sureties were not made to pay anything, but the court in its discretion refused to allow them to be discharged. Where there has been no breach of the bond and the defendant is in the custody of the court for contempt upon his failure to perform the final decree, the sureties may be discharged. Debazin v. Debazin (1743) 1 Dick. 95. In such cases the purpose of the ne exeat writ is satisfied, for the defendant has been before the court during the proceedings and is within its jurisdiction at the time of the final decree. In Johnson v. Clendenin, 5 Gill & J. (Md.) 463, it was decided that the purpose of the ne exeat writ was satisfied and the sureties were discharged where the defendant, who had been seized and confined for contempt of court in disobeying the final decree, had escaped from the custody 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 alimony ordered by decree of the court. The sureties applied for discharge on the ground that the defendant was being held in custody for contempt. This application was refused lest the defendant pay up the accrued alimony and escape from the jurisdiction and thus not pay future amounts which would be due. A court of equity thus exercises a wide jurisdiction to accomplish just results in cases of this nature.

In the case...