Schreiber v. Schreiber

Citation85 N.J.Eq. 303,96 A. 85
Decision Date18 November 1915
Docket NumberNo. 529.,529.
PartiesSCHREIBER v. SCHREIBER.
CourtNew Jersey Court of Chancery

Bill by Margaretha Schreiber against Charles Schreiber. On petition for order directing surety upon a ne exeat bond to pay the amount of the penalty of the bond into court. Order granted.

Charles W. Kappes, of Town of Union, for petitioner. Maurice J. Breen, of Hoboken, for William L. Schultz, surety.

STEVENSON, V. C. The question which I understand is to be presented to the Court of Errors and Appeals for settlement is whether the practice, which has prevailed in the Court of Chancery for many years, of enforcing the payment of the penalty of a defaulted ne exeat bond from the surety in the Court of Chancery, by a summary proceeding on order to show cause served upon the surety, is correct and lawful or not.

The practice which has been followed in many cases to my knowledge is based upon the opinion of Chancellor Runyon in the case of Wauters v. Van Vorst, 28 N. J. Eq. 103, which perhaps may be considered as containing a dictum favoring the practice, and particularly the opinion of Vice Chancellor Reed in Elliott v. Elliott, 36 Atl. 951, which seems to be a direct authority sustaining the power of the Court of Chancery in the premises.

Of the two cases cited by Chancellor Runyon and Vice Chancellor Reed (Musgrave v. Mendex, 1 Mer. 49, and Utten v. Utten, Id. 51), the former, the Musgrave Case, is not directly in point because the surety on the bond against whom the order went was a party to the suit. The Utten Case, however, decided by Lord Chancellor Eldon in 1815, seems to be a direct precedent establishing the power of the Court of Chancery in England to order the sureties on a ne exeat bond to pay the amount of the penalty into court. The order apparently went, not only against the defendant, but his sureties as well. Even in the Musgrave Case it must be observed that the liability of the surety who happened to be one of the defendants, which was summarily enforced, had nothing to do with the relief prayed for in the bill, but was wholly a collateral matter. The proceeding was against Mendex, not as a codefendant, but as an obligor on the ne exeat bond. The Musgrave and Utten Cases are cited by Mr. Daniel as authorities for the proposition that, where the principal departs from the state without leave, "the court, it seems, will order the sureties to pay the money into court within a certain time." 2 Dan. 1712.

The case of Collinridge v. Mount, Dick. 688, decided by Lord Thurlow in 1787, when carefully examined, has no bearing upon proceedings in the Court of Chancery to enforce a ne exeat bond.

The case of Elliott v. Elliott was decided 18 years ago, and has been regarded as settling the law in the Court of Chancery, distinguishing between a ne exeat bond and a bond for maintenance or alimony, making the former enforceable against the sureties in the Court of Chancery, while the latter is left to be enforced in a court of law in accordance with the practice in the case of an injunction bond. In considering whether the distinction between these two bonds recognized now in the Court of Chancery is logical or not, regard must be had for Lord Halsbury's dictum that "the law is not always logical."

Inasmuch as the order in this case appealed from is based upon controlling precedents, which have been followed in the Court of Chancery without question for a generation, it does not seem necessary to enter upon an extensive investigation of the historical and logical basis of a rule of practice or procedure by which, until the Court of Errors and Appeals shall determine otherwise, the Court of Chancery Is absolutely bound. Only a few suggestions relating to the equitable fitness of the rule thus established will be made here—suggestions which have occurred to me during the course of years in which I...

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18 cases
  • Beekwilder v. Beekwilder
    • United States
    • New Jersey Superior Court — Appellate Division
    • December 14, 1953
    ...97 (Ch.1875). Dicta to the contrary will be found in our reports. Elliott v. 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, u......
  • Bell v. Merchants Bldg. & Loan Ass'n of W. Hudson
    • United States
    • New Jersey Court of Chancery
    • October 1, 1942
    ...of sureties are substantially the same as bail at common law. Palmer v. Palmer, 84 N.J.Eq. 550, 95 A. 241; Schreiber v. Schreiber, supra [85 N.J.Eq. 303, 96 A. 85]; Brandt on Suretyship and Guaranty, Vol. 2, § 592; Johnson v. Clendenin, 5 Gill & J. (Md.) 463. That a material amendment to a ......
  • Nelson v. Sanderson
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 30, 1934
    ...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......
  • Foote v. Foote
    • United States
    • New Jersey Supreme Court
    • February 6, 1928
    ...Griswold v. Hazard, 141 U. S. 260, 11 S. Ct. 972, 999, 35 L. Ed. 678; Gondas v. Gondas, 98 N. J. Eq. 107, 130 A. 600; Schreiber v. Schreiber, 85 N. J. Eq. 303, 96 A. 85; Penny v. Penny, 88 N. J. Eq. 160, 102 A. The language of the bond itself, it will be observed, connotes such a limitation......
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