Ex parte Brunker
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1734 |
| Date | 01 January 1734 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 1079
LORD CHANCELLOR TALBOT.
Case 80.-Ex Parte brunker. [1734.] Lord Chancellor Talbot. A writ of ne exeat regno ought not to be granted without a bill first filed. The Master of the Bolls, upon a petition ex parte, granted a ne exeat regno against J. S. (against whom the plaintiff Brunker had recovered a verdict at the sittings after this last term) upon strong affidavits, that the said J. S. between this and Michaelmas term then next (before which time the plaintiff could have no judgment), threatened to go beyond sea; and this writ was granted, though no bill had been filed, upon a precedent produced of the Lord Cowper's in 1709. [313] And now, on motion to supersede this writ, and discharge the defendant, 1080 ANONYMOUS 3 P. WMS. 314. who had been taken into custody by virtue thereof, it was urged in support of the order at the Rolls, that the writ of ne exeat regno was in the register, and at common law, and though originally a state writ, yet now was made use of in aid of the subjects, to help them to their just debts; and being a writ at common law, it stood in no need of the authority or interposition of this court* Lord Chancellor. In all my experience I never knew this writ of ne exeat regno granted, or taken out, without a (1) bill in equity first filed. It is true, it was originally a state writ, but for some time (though not very (2) long) it has been made use of in aid of the subjects, for the helping them to justice ; but still, as custom has allowed this latter use to be made of it, it ought to go no further than can be warranted by usage, which always has been to have a bill first filed The precedent cited in the Lord Cowper's time was but a single one, and passed sub silentio. Neither does it appear, that any use was made of that writ, or that the party [314] defendant was ever taken upon it; so that this alone is not sufficient to overturn what has been the constant settled practice; and there is the greater reason that this writ should be taken out and granted with caution, as it deprives the subjects of their liberty : neither ought it to be made use of, where the demand is entirely at law ; for there the plaintiff has bail; (3) and he ought...
To continue reading
Request your trial
- Felton v Callis
-
Young v Young
...be coerced into giving bail. Equity lacked this power and came to adopt and adapt the writ ne exeat regno to achieve the same result. In Ex parte Brunker (1734) 3 P Wms. 312 at pp 314 Lord Talbot LC stated: "…this writ should be taken out and granted with caution, as it deprives the subject......
-
Lincoln International Ltd v Seymour Feldstein
...for defendant. (1) History of English Law Vol. 8 p.250. (2) 1 & 2 Vict. C.110 (3) [1969] 1 Q.B. at pp.205/207 (4) [1734] 3 P. Wms. 311; 24 E.R. 1079 (5) (1861) 4 L.T. 114 (6) (1878) 7 Ch. D. 866 (7) [1820] 1 Jac. & W. p.405 at 415 37 E.R. 430 at pp.433/4 (8) [1753] 2 Dickens 786; 21 E.R. p ......