O'Connor v. Debraine

O’Connor v. Debraine. July 30, 1838. Practice. Ne exeat Motion. On an application to vacate a writ of ne exeat where a defendant has taken the benefit of an insolvent act, the court, will consider the discharge under such act as regular; and not look into suggested fraud and informality in the obtaining it. Motion to discharge a writ of ne exeat. The defendant had taken the benefit of the insolvent (two-thirds) act prior to the filing of the bill. In opposition to the motion, affidavits were rea<^> tending to show that the defendant had made a fraudulent assignment to one Combault, prior to and in expectation of taking the benefit of the act; also, suggesting informality in the discharge ; and that the defendant had sailed for France pending the process. Mr. John Cook, in support of the motion. Mr. James T. Brady, for the complainant. [MAJORITY — The Vice-Chancellor :] The Vice-Chancellor : not to be presumed fraudulent. It was, prima facie, regularly and fairly obtained ; and the effect of it is to exonerate the defendant from all arrest and imprisonment upon previously contracted debts. If Combault is fraudulently concealing or covering the property of the defendant, the complainant can amend his bill, making Combault a party, and proceed to a decree against him or the property in his hands, even though the defendant, Debraine, the original debtor, is out of the jurisdiction. The defendant is entitled to an order, discharging the ne exeat. But, as the complainant was ignorant of the insolvent-discharge, the costs may abide the event.