Schreiber v. Schreiber

Decision Date20 November 1916
Citation99 A. 117,86 N.J.Eq. 437
CourtNew Jersey Supreme Court

Appeal from Court of Chancery.

Bill by Margaretha Schreiber against Charles Schreiber and others. From an order of the Court of Chancery (85 N. J. Eq. 303, 96 Atl. 85) forfeiting a ne exeat bond and directing the surety thereon to pay to the clerk of that court the penal sum mentioned therein, the defendants appeal. Order affirmed.

John J. Fallon, of Hoboken, for appellants. John W. Kappes, of Town of Union, for appellee.

PER CURIAM. This is an appeal from an order of the Court of Chancery forfeiting a ne exeat bond, and directing the surety thereon to pay to the clerk of that court the penal sum mentioned therein.

The first ground of appeal is that the Chancellor was without jurisdiction to make the order because the bond does not comply with rule 192 of the Court of Chancery (which regulates the procedure on writs of ne exeat), in that it was not taken by the sheriff at the time of the arrest of the defendant, and, further, because the condition of the bond varies from that required by the rule. In disposing of this contention it is enough to say that, so far as the obligation of the surety is concerned, it is immaterial whether the bond is in exact conformity to the requirements of the chancery rule or not. It was voluntarily executed by Schreiber and his surety for the purpose of obtaining the release of the former from custody under the writ of ne exeat, and it effected that purpose. It was open to the Court of Chancery to accept this bond in lieu of one in the prescribed form, if it saw fit to do so. As was said by Beasley, C. J., speaking for the Supreme Court in Sooy v. State, 38 N. J. Law, 329, an instrument of this kind, although variant from that required by statute (or rule of court) given for a lawful purpose, and not violative of any public policy, when made without an illegal coercion, is clearly obligatory in law. This pronouncement was approved by this court in Id., 41 N. J. Law, 395. We conclude, therefore, that the first ground of appeal is without merit.

The next contention on the part of the appellants is that the cause in which the order was made was abandoned by the respondent prior to the making of the order, and that it is therefore void. The fact, however, is to the contrary. Although no step or proceeding in the cause was taken for many terms of the court, no move was made by Schreiber, the defendant...

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8 cases
  • Beekwilder v. Beekwilder
    • United States
    • New Jersey Superior Court – Appellate Division
    • December 14, 1953
    ...Elliott, 36 A. 951 (N.J.Ch.1897) and Schreiber v. Schreiber, 85 N.J.Eq. 303, 96 A. 85 (Ch.1915), affirmed on other grounds 86 N.J.Eq. 437, 99 A. 117 (E. & A.1916). However these dicta depend, for their authority, upon the first opinion of Vice Chancellor Van Fleet in Easton v. New York & Lo......
  • Nelson v. Sanderson
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 30, 1934
    ...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 cou......
  • Coursen v. Coursen
    • United States
    • New Jersey Superior Court – Appellate Division
    • May 5, 1969 inappropriate now to discharge the bond, the condition thereof being in a present state of default. See Schreiber v. Schreiber, 86 N.J.Eq. 437, 438, 99 A. 117 (E. & A. 1916). Second, the matter of discharge of the surety on a Ne exeat bond rests in the sound discretion of the court. Ksia......
  • Foote v. Foote
    • United States
    • New Jersey Court of Chancery
    • June 17, 1927
    ...forfeited. The 137 A. 853 Court of Errors and Appeals said that question was not before them in the same case on appeal. 86 N. J. Eq. 439, 99 A. 117. In Penny v. Penny, 88 N. J. Eq. 160, 102 A. 257, the decision of Vice Chancellor Backes was in a case where the petitioner, long after the aw......
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