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[1968] 3 All ER 673

Felton and Another v Callis

VACATION COURT: QUEEN'S BENCH DIVISION

MEGARRY J


9, 12 AUGUST 1968



Equity - Writ ne exeat regno - Condition on which writ issued - Debtors Act, 1869(32 & 33 Vict. c 62), s 6.

Until the end of 1965 the plaintiffs and the defendant were in partnership as chartered accountants. The partnership bank account was heavily overdrawn, and in July, 1968, the parties executed an agreement under seal under which the balance of the money then owing to the bank should be paid as to £900 by the plaintiffs and as to the remaining balance by the defendant. The plaintiffs being apprehensive that the defendant would leave the country with all his assets and without paying his share of the debt to the bank, issued a writ for an order that he should pay to the bank £2,995 and interest. The writ had been served but no appearance had been entered. The bank issued a writ against the plaintiffs and the defendant according to which the defendant's obligation would be not more than £2,716. The plaintiffs applied, inter alia, for a writ ne exeat regno.

Held - The application for a writ ne exeat regno would be dismissed, because--

(i) although the repeal of RSC, Ord 69, by the Rules of the Supreme Court (Revision) 1965, in no way affected the validity of either s 6^a of the Debtors Act, 1869, or the writ ne exeat regno (see p 677, letter e, post);

^a     Section 6 is set out at p 679, lettersf to h, post

(ii) the writ could only issue in the present case if the requirements of s 6 of the Act of 1869 were satisfied (see p 679, letter b, post) (Colverson v Bloomfield ((1885), 29 ChD 341) applied); and there was no evidence to show that the defendant's absence from England would materially prejudice the plaintiffs in the prosecution of their action, which was one of the four conditions which had to be satisfied before an order for arrest would be made under s 6 of the Act of 1869 (see p 681, letter h, post).

Per Curiam: Even if all four conditions under s 6 of the Debtors Act, 1869, are satisfied, the issue of an order under that section is discretionary, and, if that be so, the issue of the writ ne exeat regno in equity can hardly be less discretionary, and the standard of proof required is high, the court must be convinced (see p 680, letter a, post).

Notes

As to the writ ne exeat regno, see 14 Halsbury's Laws (3rd Edn), 517, 518, paras 983, 984; and for cases on the subject, see 20 Digest (Repl) 569-577, 2690-2807.

For the Debtors Act, 1869, s 6, see 2 Halsbury's Statutes (2nd Edn) 297.

Cases referred to in judgment

Ascherson v Tredegar Dry Dock & Wharf Co Ltd [1909] 2 Ch 401, 78 LJCh 697, 101 LT 519, 20 Digest (Repl) 578, 2818.

Beswick v Beswick [1967] 2 All ER 1197, [1968] AC 58, [1967] 3 WLR 932, Digest (Repl) Supp.

Brunker, Ex p (1734), 3 P Wms 312, 24 ER 1079, 20 Digest (Repl) 570, 2699.

Cloverson v Bloomfield (1885), 29 ChD 341, 54 LJCh 817, 52 LT 478, 20 Digest (Repl) 573, 2748.

Comedy Opera Co v Carte [1879] WN 210, 5 Digest (Repl) 1118, 9021.

Drover v Beyer (1879), 13 ChD 242, 49 LJCh 37, 28 WR 89, 110, 41 LT 393, 20 Digest (Repl) 573, 2746.

Flack v Holm (1820), 1 Jac & W 405, 37 ER 430, 20 Digest (Repl) 570, 2695.

Glover v Walters [1950] ALR 179, 80 CLR 172, 23 ALJ 663, 20 Digest (Repl) 573, * 462.

[1968] 3 All ER 673 at 674

Hands v Hands (1881), 43 LT 750, 20 Digest (Repl) 573, 2747.

Hasluck v Lehman (1890), 6 TLR 435, 5 Digest (Repl) 1118, 9020.

Jackson v Petrie (1804), 10 Ves 164, 32 ER 807, 20 Digest (Repl) 570, 2694.

Jones v Alephsin (1810), 16 Ves 470, 33 ER 1063, 20 Digest (Repl) 576, 2794.

Lees v Patterson (1878), 7 ChD 866, 47 LJCh 616, 38 LT 451, 20 Digest (Repl) 570, 2704.

Lewis v Lewis (1893), 68 LT 198, 20 Digest (Repl) 574, 2765.

Sichel v Raphael (1861), 4 LT 114, 20 Digest (Repl) 571, 2720.

Sobey v Sobey (1873), LR 15 Eq 200, 42 LJCh 271, 27 LT 808, 20 Digest (Repl) 574, 2755.

Stones v Cooke (1835), 8 Sim 321, n, 59 ER 127.

Thompson v Smith (1865), 13 WR 422.

Tomlinson v Harrison (1802), 8 Ves 32, 32 ER 262, 20 Digest (Repl) 570, 2693.

Underwood, Re (1903), 51 WR 335, 20 Digest (Repl) 573, 2750.

Watt v Mortlock [1963] 1 All ER 388, [1964] Ch 84, [1963] 2 WLR 626, Digest (Cont Vol A) 508, 2819a.

White v Milburn (1957), 107 LJo 401.

Whitehouse v Partridge (1818), 3 Swan 365, 36 ER 896, 20 Digest (Repl) 573, 2753.

Yorkshire Engine Co v Wright (1872), 21 WR 15, 5 Digest (Repl) 1118, 9019.

Motion

This was an ex parte motion by the plaintiffs to issue a writ ne exeat regno against the defendant, alternatively to grant an interlocutory injunction ordering him to pay the sum of £2,716 8s 4d to the bank. The facts are set out in the judgment.

A L Price QC and Brian Davenport for the plaintiffs.

12 August 1968. The following judgment was delivered.



MEGARRY J.

Last Friday, towards the end of a Long Vacation afternoon, counsel for the plaintiffs applied ex parte in Queen's Bench Chambers fo the issue of a writ ne exeat regno. The application was made in proceedings claiming that the defendant should be ordered to pay some £3,000 to a bank; and the two plaintiffs seek the issue of the writ against the defendant. If it is issued, it will restrain the defendant from leaving the jurisdiction until he has given security for the £3,000; and this restraint will be effected by committing him to prison until he provides the security. Having sat on Friday until nearly 6.0 pm, and again at 9.30 am today (for such are now the demands of vacation work), I have adjourned the case into open court for judgment; for the application is unusual, and the writ, though drastic, is but little-known today, particularly, I gather, in the Division in which I am now sitting. With such resources as were available for week-end research, I have been unable to find a reported instance of the writ being issued in the last seventy-five years, since Lewis v Lewis; and the last unsuccessful attempt to obtain the writ that I know of was some eleven years ago: White v Milburn. Both were cases in the Chancery Division. Counsel for the plaintiffs also referred me to an application in the High Court of Australia in 1950 for the analogous writ of ne exeat colonia (see Glover v Walters, where the judgment of Dixon J contains a valuable conspectus of the authorities); but that application, too, was unsuccessful.

The facts of this case can be stated briefly. The two plaintiffs and the defendant were in partnership as chartered accountants. Disputes arose, and the partnership has now been dissolved as from the end of 1965. The partnership bank

[1968] 3 All ER 673 at 675

account was heavily overdrawn, and on 29 July 1968, the parties executed an agreement under seal. By cl 3 thereof it was agreed that the money "at present owing" to the bank should be repaid by setting off the credit balance in the clients' account at the same branch,

"and the balance still owing shall be paid by [the first and second plaintiffs] jointly as to £900 thereof and by [the defendant] as to the balance thereof."

This deed carried out the terms agreed at a meeting on 16 May 1968. The plaintiffs allege that the defendant said at the time that he would pay the bank the sum required of him within the fortnight, and that since then he has twice said that he was about to pay. It was known that the defendant was planning to leave the country towards the end of the year in order to take up residence in Thailand; but recently the plaintiffs have received information that he is likely to leave on 18 August or 19, and that he had already sold his house. The defendant still has not paid the bank, and the plaintiffs, who are willing to pay their £900 at any time, are understandably apprehensive that the defendant will leave the jurisdiction with all his assets and without paying the bank.

In these circumstances, on 5 August 1968, the plaintiffs issued a writ against the defendant. This was served on 7 August but no appearance has yet been entered. The writ seeks a declaration that the plaintiffs are entitled to be indemnified by the defendant against all sums due to the bank exceeding £900, and an order that the defendant should pay the bank £2,995 16s 9d and interest. On 9 August the bank issued a writ against the plaintiffs and the defendant claiming £3,616 18s 4d, consisting of £3,554 9s 10d principal and £62 8s 6d interest. If £900 be deducted from the sum claimed by the bank, it will be seen that, on the bank's figures, not more than £2,716 18s 4d is due from the defendant. The position between the parties and the bank is thus that the plaintiffs and the defendant are jointly and severally indebted to the bank for whatever sum is due, but that they have agreed between themselves that the defendant shall pay the whole sum save for the £900 that will be paid by the plaintiffs. On the figures that I have given, the plaintiffs are accordingly claiming nearly £280 more than the bank says is due, even if it is right, in view of the words "at present owing" in cl 3 of the deed, to include interest accrued due after the date of the deed. It will be observed that the obligation imposed on the defendant by cl 3 of the deed is an unsecured obligation, not charged on his house or any other assets of his; hinc illae lacrimae.

In these circumstances, I propose first to examine briefly the nature of the writ ne exeat regno, and then to consider whether it can still be issued. If it can, I must, of course, consider whether it can and should be issued in this case. The origin and history of the writ is examined in Beames' A Brief View Of The Writ Ne Exeat Regno (1st Edn, 1812); and there is a valuable account in Story's Commentaries On Equity Jurisprudence (3rd English Edn, 1920), pp 620-625, which professedly draws heavily on Beames. Holdsworth's History Of English Law says very little about the writ; see Vol 1, p 230; Vol 10, p 392. In its origin, the writ was a prerogative writ dating from the thirteenth century, used by the Crown, says Story, for "great political objects and purposes of state, for the safety or benefit of the realm": p 621. Fitzherbert's The New Natura Brevium (7th Edn, 1730), pp 192-3, s 85, says "because that every man is of right bound to defend the King and his realm, therefore the King at his pleasure by his writ may command a man that he go not beyond the seas, or out of the realm, without licence".

By the time of Elizabeth I, however, the writ had begun to be used by the subject for civil purposes; and this was well established by the reign of James I. For claims at law, the litigant had available the power of arrest on mesne process, whereby the defendant could be coerced into giving bail. Equity lacked this

[1968] 3 All ER 673 at 676

amenity, and came to adopt (and adapt) the writ ne exeat regno as a means of achieving the same result. In 1734, Lord Talbot LC said^b:

^b     (1734), 3 P Wms. 312 at pp 313, 314.

"It is true, it was originally a state writ, but for some time (though not very long) it has been made use of in aid of the subjects, for the helping them to justice ... "

He went on to say 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; and he ought not to have double bail, both at law and in equity":

Ex p Brunker. Blackstone (Commentaries, (15th Edn), 1809, Vol 1, p 266, note 10) says that the use and object of the writ in Chancery was

"exactly the same as an arrest at law in the commencement of an action, viz. to prevent the party from withdrawing his person and property beyond the jurisdiction of the court, before a judgment could be obtained and carried into execution; so where there is a suit in equity for a demand, for which the defendant cannot be arrested in an action at law, upon an affidavit made that there is reason to apprehend that he will leave the kingdom before the conclusion of the suit, the chancellor by this writ will stop him."

It thus appears that, by a process of adaptation familiar to all English lawyers, the prerogative writ was transformed into the equitable counterpart of arrest on mesne process at law, although, of course, unlike arrest, the writ was confined to cases in which the defendant was about to leave the jurisdiction. The nineteenth century brought changes to arrest on mesne process. By the Judgments Act, 1838, a judge's order was made requisite; and the Debtors Act, 1869, abolished such arrest, but provided a closely confined alternative procedure. To s 6 of that Act and its effect on the writ I shall have to return in due course; all that I need say here is that there is authority for saying that equity acted by analogy and applied the restrictions of s 6 to the writ, so that the two became closely linked.

In its developed form, the writ issued to the sheriff, commanding him to cause the debtor to come before him and give bail or security for a stated amount corresponding to the amount of the claim; and if the debtor refused to give this bail or security, the sheriff was to commit the debtor "to our next prison", to be kept there until he gave the bail or security. The writ was issued on an ex parte application, but not surprisingly, an undertaking in damages was usually required; and the writ had to be marked with the amount required to be provided as security. If the defendant alleged that the writ had been wrongfully issued, he could at any time apply to discharge it; and he could also claim under the undertaking in damages: see, generally, Daniell's Chancery Forms (7th Edn, 1932), pp 756-760; Seton's Forms Of Judgments And Orders (7th Edn, 1912), Vol 1, pp 504-506; Sichel v Raphael; and Lees v Patterson. In this way, a process whereby the Crown, for reasons of state, prevented a subject from leaving the realm had become a process whereby an equitable creditor could have the debtor arrested and made to give security if, and only if, he was about to leave the realm. The threat of leaving the realm had ceased to be the objective which the writ sought to frustrate, and had instead become a condition precedent to enabling the plaintiff to coerce the defendant into giving security.

The question whether the writ can still issue arises in an odd way. Formerly, the Rules of the Supreme Court contained an order, RSC, Ord 69, which

[1968] 3 All ER 673 at 677

laid down the procedure to be followed on an order to arrest under the Debtors Act, 1869, s 6. In the notes to RSC, Ord 69, in the White Book there was some discussion of the writ ne exeat regno; see The Annual Practice 1966, pp 1857-1860. However, by the Rules of the Supreme Couirt (Revision) 1965, RSC, Ord 69, was repealed and not replaced; and in The Supreme Court Practice 1967, there seems to be nothing to correspond either to the former RSC, Ord 69, or the notes to it which appeared in the 1966 volume. Nor is there any longer an entry "Writ of Ne Exeat Regno" in the index.

The repeal of the procedure to be followed on an order to arrest under s 6 thus raises some suspicion that the section itself has ceased in some way to be operative, and with it the writ. However, neither counsel for the plaintiffs nor I have been able to find any indication that either the section or the writ have gone; and the encyclopaedic publications associated with the name of the Earl Of Halsbury LC treat both as being still extant; see 2 Halsbury's Laws Of England (3rd Edn) 649; Vol 7, p 294 (where the writ is described as being "obsolescent"); Vol 14, pp 517, 518; and the 1968 Supplement thereto; 2 Halsbury's Statutes Of England (2nd Edn) 297; and the 1967 Supplement thereto. The Final Report Of The Committee On Supreme Court Practice And Procedure (1953: Cmd 8878) discussed the writ in paras 455 and 456, and recommended its modification, on the ground that it is "useless in its present application". Nevertheless, RSC, Ord 69, was amended in 1959 and again in 1962, so that this type of procedure does not seem to have been treated as being obsolete or useless then. Possibly the revision of the Rules of the Supreme Court in 1965 omitted RSC, Ord 69, as being so rare in its application as not to be worth its place; but I cannot see any ground for saying that this omission has in any way affected the validity of either s 6 or the writ.

I may add that it is true that the authorities on the writ are almost entirely cases decided in the Court of Chancery or the Chancery Division, and that I am now sitting in the Queen's Bench Division. But I do not think that this makes any difference. In view of the terms of the Supreme Court of Judicature (Consolidation) Act, 1925, it seems to me that, sitting here, I can give all the relief that I could in the Chancery Division; see especially s 18, s 42 and s 43. I may also add that the most recent instance of an application for the writ, made to Danckwerts J in 1957 in White v Milburn , provides little assistance. It is not fully reported, and appears only as a brief record of a collector's piece. The application seems to have failed on the score of an insufficiency of the particulars of the debt. But an injunction was granted instead, restraining the removal from the jurisdiction of assets alleged to have been partnership property; and the next day the case was settled. In that case there seems to have been a sufficient proprietary interest to warrant the grant of an injunction; here there is no such proprietary interest, but a mere personal obligation, so that no such injunction could, I apprehend, be granted.

On the footing that the writ still exists, ought it to be issued in this case? Counsel for the plaintiffs has been concerned to established that the writ is not subject to the restrictions of s 6 of the Debtors Act, 1869; and plainly there is nothing in that section which in terms applies to the writ. But his difficulty, which he recognises, has been the principle that equity follows the law, and has often applied statutes by analogy. His submissions have centred round Drover v Beyer. There, the Court of Appeal affirmed a decision of Sir George Jessel MR refusing to issue the writ. The Court of Appeal dealt with the case on the footing that the debt was a legal debt and not an equitable debt, and that as the writ ne exeat regno was, in the words of James LJ^c, "never granted for a legal debt, but only for an equitable debt", the application for

^c     (1879), 28 WR 110; see also 49 L J Ch. 37 at p 38.

[1968] 3 All ER 673 at 678

the writ was wrong. At first instance, on the other hand, Sir George Jessel had said that, before the Judicature Acts, equity would have applied s 6 to the writ by analogy, and would have refused it unless the conditions of s 6 were satisfied. Even if equity had not been so confined, he observed, it was impossible to suppose that, after the Judicature Acts had come into force, the Supreme Court was to continue to be free to issue the writ without regard to s 6. The plaintiff had failed to satisfy one of the conditions of s 6, namely, that the defendant's absence would "materially prejudice the plaintiff in the prosecution of his action"; and so Sir George Jessel refused the writ.

In view of this difference of approach between Sir George Jessel and the Court of Appeal, counsel for the plaintiffs said that I ought not to regard what Sir George Jessel said as being binding, and so I ought to conclude that the writ can be issued without regard to the shackles of s 6. In this connexion, counsel for the plaintiffs cited Hands v Hands, where Sir George Jessel recognised the difference that there had been between the two approaches in Drover v Beyer.

This contention seems to me to be plainly wrong. Unless the views of Sir George Jessel had been reversed or disapproved by higher authority, I should accord them that great respect that, by common consent, they have for so long commanded; and I observe that in Hands v Hands he does not appear to resile from his views in Drover v Beyer, or treat them as having been overruled or criticised. In any case, it seems to me that the point is concluded by another decision of the Court of Appeal, Colverson v Bloomfield , which counsel for the plaintiffs mentioned this morning. That was a case where a trustee had been ordered to pay a certain sum to a beneficiary within seven days of the order being served on the trustee; and both Chitty J and the Court of Appeal refused an application for a writ ne exeat regno made before the order had been served on the trustee. Cotton LJ said ((1885), 29 ChD at p 342.): "The first question we have to consider is whether this case is within s 4 or s 6 of the Debtors Act, 1869". He then summarised these sections and went on ((1885), 29 ChD at p 342.):

"This is an application for a writ of ne exeat regno in a case where, if the debt had been legal, there could not have been any imprisonment at common law. The applicant's counsel says that the writ of ne exeat is not abolished by the Debtors Act, 1869, and that the court ought to issue it in order to keep the defendant within the jurisdiction. But in my opinion, if the debt is not now due and payable a writ of ne exeat ought not to be issued. The Court of Chancery, in granting this writ, merely proceeded by analogy to the process at common law. At common law arrest on mesne process was only applicable to legal debts. The Court of Chancery, by analogy, issued a writ of ne exeat where the debt was equitable. In my opinion the objection is fatal, that if this had been a legal demand there could have been no arrest at common law, and by analogy we ought not to grant a writ of ne exeat. The debt is only payable in futuro, and in such a case the writ ought not to issue."

Bowen LJ said ((1885), 29 ChD at p 343.):

"I am of the same opinion. When the case is looked into it clearly is not within either s 4 or s 6 of the Debtors Act, 1869. The granting of a ne exeat by the Court of Chancery was a kind of reflection of the common law process of arrest. It seems to me that the Court of Chancery never ordered arrest for an equitable debt except in cases where, if the debt had been legal, the Courts of Common Law would have done so."

Fry LJ agreed ((1885), 29 ChD at p 343.). there was thus a clear decision that equity acted by

[1968] 3 All ER 673 at 679

analogy, and refused the writ except in cases where the Debtors Act, 1869, still allowed arrest at common law. Further, in Lewis v Lewis ((1893), 68 LT at p 199.), Stirling J adopted this view of Colverson v Bloomfield ((1885), 29 ChD 341.), saying that

"... in issuing such a writ, in execution of the jurisdiction formerly exercised in the Court of Chancery, the court by analogy should see that the circumstances which common law would require to justify the arrest under s. 6 of the Debtors Act, 1869 are established to its satisfaction."

Colverson v Bloomfield had in some degree been anticipated by Sir James Bacon, V. -C., in Sobey v Sobey; but I need say no more about that.

Accordingly, in my judgment, the writ can issue in the present case only if the requirements of the Act of 1869 are satisfied. Authority binds me to this result, but even if it did not, I should reach the same conclusion myself. Today, if Parliament intends a statute to apply to some equitable right or remedy, one expects Parliament to say so. But in times past Parliament was frequently not so explicit, and equity often acted by analogy. Thus, in a number of instances equity acted by analogy with the Statutes of Limitation; but now the comprehensive scope of the Limitation Act, 1939, has removed virtually every need or possibility of this. In the present case, I am concerned with an Act nearly a century old; and it is the standards of those days, when the administration of law and equity was still separate, that must be applied for this purpose. Colverson v Bloomfield was, as counsel for the plaintiffs emphasised, a case of a future debt, rather than a present debt; but this does not affect the basis on which the Court of Appeal dealt with the case, namely, that equity acted by analogy.

I turn, then, to s 6 of the Debtors Act, 1869. It is set out at p 1857 of The Annual Practice 1966, in full; indeed, it is perhaps rather too full, for the first eighteen words there quoted were repealed some seventy-five years ago by the Statute Law Revision (No 2) Act, 1893, s 1 and Sch 1. The section now reads as follows:

"... Where the plaintiff in any action in any of Her Majesty's superior courts of law at Westminster in which, if brought before the commencement of this Act, the defendant would have been liable to arrest, proves at any time before final judgment by evidence on oath, to the satisfaction of a judge of one of those courts, that the plaintiff has good cause of action against the defendant to the amount of £50 or upwards, and that there is probable cause for believing that the defendant is about to quit England unless he be apprehended, and that the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action, such judge may in the prescribed manner order such defendant to be arrested and imprisoned for a period not exceeding six months, unless and until he has sooner given the prescribed security, not exceeding the amount claimed in the action, that he will not go out of England without the leave of the court ... "

There is a further provision which I need not mention. Put briefly, an order can thus be made under the section only if four conditions are satisfied; and these must be established by evidence on oath to the satisfaction of a judge before final judgment. The conditions are as follows: (i) The action is one in which the defendant would formerly have been liable to arrest at law. (ii) A good cause of action for at least £50 is established. (iii) There is "probable cause "for believing that the defendant is "about to quit England" unless he is arrested. (iv) "The absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action".

[1968] 3 All ER 673 at 680

Before I consider these requirements, I will mention two overriding considerations. First, even if all four conditions are satisfied, the issue of an order under s 6 is discretionary; see Hasluck v Lehman, where the Court of Appeal refused the order. If making the statutory order is discretionary, the issue of the writ in equity can hardly be less discretionary. Second, the standard of proof required is high; the court must be convinced. In Re Underwood, ((1903), 51 WR 335 at p 336.) Joyce J said "I should certainly never allow a writ ne exeat regno to issue unless I were positive I was right in doing so"; and on the deficiencies of the evidence in the case before him he refused the writ, a decision which the Court of Appeal affirmed. In Stones v Cooke, Lord Lyndhurst LC spoke of the court acting "very reluctantly" in giving relief; but he may have been concerned with the fact that the cases of which he was speaking concerned arrears of alimony. However, in Tomlinson v Harrison ((1802), 8 Ves 32 at p 33.), Lord Eldon LC observed that ne exeat regno was a "... high prerogative writ; and is applied to cases of private right always with great caution and jealousy ... "; and in Whitehouse v Partidge ((1818), 3 Swan. 365 at p 379.), he said that the court

"ought to feel no inclination to extend the application of the high prerogative writ of ne exeat regno; I think that it has been granted on grounds which ought not to be enlarged by subsequent decisions. If men will not take from their debtors security enabling them to proceed at law, they must abide by the consequences."

The plaintiffs in this case will no doubt make wry acknowledgment of the force of this last sentence.

Of the four conditions for the making of an order under s 6, and, by analogy, for the issue of a writ ne exeat regno, the two to which I think I must pay particular attention are the first and the fourth; and it is the latter which I propose to consider first. It will be observed that Parliament has singled out one ground, and one alone, on which the defendant's absence must "materially prejudice" the plaintiff, namely, prejudice "in the prosecution of his action". The writ is very far from being a form of execution. Indeed, by the express terms of s 6, the section applies only "before final judgment". Accordingly, in Yorkshire Engine Co Ltd v Wright , the Court of Appeal held that where a defendant had been arrested under s 6 on a claim for £1,500, and had obtained his release by paying £1,500 into court, he was entitled to have the money paid out to him as soon as he submitted to final judgment. The legislature intended, said Kelly CB ((1872), 21 WR at p 16.),

"... merely that the defendant should be in England, in order that the plaintiff might not be prejudiced in endeavouring to obtain the judgment of the court in which he sues."

Bramwell B, added ((1872), 21 WR at p 16.) that it was plain that s 6

"... was intended only to secure the presence of the debtor during the progress of the suit, that is, before final judgment, and was not intended to allow him to be kept in prison after the plaintiff should have, by signing final judgment, established the validity of his claim against the defendant."

What the plaintiff must establish is that the debtor's absence will materially prejudice the plaintiff in his progress towards judgment; and it is this that I must consider.

In this connexion, I may refer again to the Final Report Of The Committee On Supreme Court Practice And Procedure. This discusses the writ under

[1968] 3 All ER 673 at 681

the heading "Execution of Judgments", and under the sub-heading "Aids to execution". After a brief reference to s 6 of the Act of 1869, para 455 of the report quotes the words of the statute relating to prejudice in the prosecution of the action, and continues

"As it is extremely rare for the plaintiff to have to call the defendant as his witness, virtually no use is made of this writ."

In so far as this suggests that the unavailability of the defendant to give oral evidence at the trial is the only form of prejudice to the plaintiff that is likely to occur, it seems to me to be unduly narrow. A plaintiff might well claim that he would be "materially prejudiced" in the prosecution of his action if the defendant left the country with all his documents and the plaintiff required discovery of documents; so also if the case was one in which the administration of interrogatories was important to the plaintiff. Thus in Hasluck v Lehman ((1890), 6 TLR at p 436.), Lord Esher MR in refusing an order under s 6, said that "as to interrogatories, it did not appear that the plaintiff had any intention to deliver them". Again, in Comedy Opera Co v Carte , Lopes J said:

"A statement in an affidavit for arrest that the defendant is a material witness is not enough, but should shew why his presence is required, as for instance, that the case for the plaintiff cannot to proved without examining the defendant, or that he is in possession of documents material to it and discovery is necessary."

I do not think that the ambit of the jurisdiction under s 6 can be limited to those rare cases where the plaintff wishes to call the defendant as his witness.

The committee's report continues with these words:

"in our view this writ is useless in its present application and we recommend that (i) the writ should not be available to a plaintiff before judgment, and (ii) if a judgment creditor satisfies the court that there is reasonable cause to believe that the judgment debtor intends to leave the jurisdiction for the purpose of avoiding payment of his debts, the writ should be available."

This proposal, if carried out, would, of course, transform the writ. Instead of being available before judgment, and not after, it would be available after judgment, and not before; it would cease to be a writ which facilitates the obtaining of judgment but not its execution, and would instead become a writ which aids the execution of a judgment but not the obtaining of it. At present, often the absence of a defendant "may be very embarrassing to the plaintiff in regard to obtaining the fruits of his action", as James LJ is reported as observing in Drover v Beyer ((1879), 49 LJCh.at p 38.), without it materially prejudicing him in prosecuting the action. James LJ added:

"Indeed, it may be said that the defendant's absence from England will facilitate the plaintiff's action, because judgment will go by default."

In the present case, I have no evidence whatever before me to show that the defendant's absence from England would materially prejudice the plaintiffs in the prosecution of their action. I can well see that his absence may very materially prejudice the plaintiffs in obtaining the fruits of their action; but that is not the test. I can also well see how unsatisfactory it is if a man who owes a substantial sum of money and does not pay it can freely remove himself from the jurisdiction with all his assets, leaving his creditors unpaid. I would be ready indeed to use any powers that existed to prevent a debtor evading his just obligations in this way. But Parliament has curtailed the powers of the courts; and where, as here, the creditor has yet to obtain judgment, and the

[1968] 3 All ER 673 at 682

debtor's presence is not required for this purpose, neither under the existing law nor under the change proposed by the committee could the court restrain the departure of the defendant. Whether the law should be altered is, of course, a matter for Parliament; and I would only add that a process of arrest in order to enforce the payment of money raises many important issues. 1968 is not 1868 or 1768; and today the more powerful processes of the law are less readily available than they once were to compel honesty in the discharge of civil obligations.

This conclusion makes it unnecessary for me to go further; but since the matter has been argued, I think that I should say something about the other three conditions under s 6. The first condition requires that the action should be one in which the plaintiff would formerly have been liable to arrest at law. In applying this to the writ ne exeat regno, what must be shown is that there exists the equitable equivalent of an action in which the plaintiff would previously have been liable to arrest at law. Debt is the obvious example. In the case before me, the plaintiffs do not claim payment to them; they claim that the defendant should be ordered to pay the bank. It is, says counsel for the plaintiffs, a quia timet action whereby a surety who is liable as a principal debtor seeks to compel the principal debtor to pay the creditor the debt guaranteed; and he cited Watt v Mortlock. A quia timet action is equitable in nature, he said, and, although the liability arose out of the contractual obligations under the deed executed by the parities, and was not a mere equitable obligation such as the liability of a trustee to his beneficiary, nevertheless it was equitable enough to form the subject of the writ. The writ would, he added, require only a small emendation to the words "greatly indebted to the said complainant"; for, of course, there is here no such indebtedness at present, but merely the obligation to pay the bank in exoneration of the plaintiffs.

This seems to me a difficult point. Story, at p 622, says that

"in general, the writ of ne exeat regno, lay only upon equitable debts and claims. There were to this general statement two recognised exceptions, and two only."

This view is supported by many authorities, including Whitehouse v Partridge ([1818], 3 Swan at p 377.), and Jackson v Petrie ((1804), 10 Ves 164 at p 165.). These two exceptions were alimony, and an account where the debtor admitted some but not all of what the creditor claimed. Alimony was included because, before 1857, the matrimonial courts had no jurisdiction to exact security; and I need say no more about it. But account is more important; for it shows that the writ might issue in a case where the jurisdiction of equity was not exclusive but concurrent; see, eg, Jones v Alephsin.

In the case before me, the defendant's obligation is an obligation at law. His liability is in contract; and there is nothing equitable about that. If the plaintiffs pay the sum due to the bank, they can recover the defendant's share of the obligation by proceeding against him at law, without resort to equity. What they are doing, however, is to resort to an equitable remedy in the nature of quia timet proceedings; and the question is whether this suffices as a foundation for ne exeat regno. That writ applies to cases within the exclusive jurisdiction of equity; there is but one instance of it being applied in the concurrent jurisdiction, and I have found no instance of it being applied in the auxiliary jurisdiction. The question is where these quia timet proceedings for the enforcement of a legal obligation stand.

The third edition of Snell's Principles Of Equity (1874) firmly places both bills quia timet and the writ ne exeat regno under the auxiliary jurisdiction,

[1968] 3 All ER 673 at 683

and not the concurrent (see pp 526, 538); and although suretyship, with its brief mention on p 419 of proceedings in the nature of quia timet, is placed under the concurrent jurisdiction, it is clear from Ascherson v Tredegar Dry Dock & Wharf Co Ltd ([1909] 2 Ch 401 at p 408.), that the surety's remedy is correctly described as a bill quia timet. However this may be, it seems to me that counsel for the plaintiffs' contentions are fraught with difficulties. Even if these quia timet proceedings are within the concurrent jurisdiction, there is only one type of case in that jurisdiction in which the writ has been issued (namely, cases of account); and there are powerful authorities against extending the ambit of the writ. Accordingly, even if this case falls within Watt v Mortlock, I feel considerable doubt whether the writ would be available to the plaintiffs.

Finally, there are the second and third conditions under s 6. There certainly seems to be evidence of a good cause of action for at least £50; but I am not sure what the precise sum is. Sir John Romilly MR said: "The evidence as to the debt must be very clear": Thompson v Smith ((1865), 13 WR 422 at p 423.). In this he echoed Lord Eldon, in thought if not in language:

"The affidavit must be as positive as to the equitable debt, as an affidavit of a legal debt, to hold to bail":

Jackson v Petrie ((1804), 10 Ves at p 165.); and see Flack v Holm ((1820), 1 Jac & W 405 at p 408.) as to discrepant sums. Here there is detailed evidence that the total sum due to the bank from the plaintiffs and the defendant, including interest up to 25 July 1968, was £3,895 16s 9d Yet the writ issued by the bank lays claim to a sum which, including interest (presumably up to the date of the writ), is only £3,616 18s 4d, which is £278 18s 5d less than the sum stated by the plaintiffs. If ne exeat regno were to issue, plainly the marking on the writ of the amount of security required to be provided would have to give effect to this discrepancy. Counsel for the plaintiffs could not explain the discrepancy, but as he now accepts that the marking would have to be for the smaller sum, I do not think that the discrepancy raises any real doubt as to the existence of the obligation. Accordingly, I think that this condition is satisfied.

As to the existence of "probable cause" for believing that the defendant is "about to quit England" unless he is arrested, Sir William Page Wood, V-C., said in Sichel v Raphael ((1861), 4 LT 114 at p 115.) that there must be evidence of the debtor's intention of going abroad,

"... corroborated by evidence as to his packing up his goods and making other arrangements consistent with such an intention of going and not returning ... To found an order for so strong a remedy as the writ of ne exeat, or to hold a man to bail, there must be proof of a clear and distinct intention expressed by the defendant that he is going to leave the country permanently."

This, perhaps, states the matter somewhat too stringently; for s 6 does not include the word "permanently", and I do not see why a prolonged but not permanent absence should not suffice. In this case, there is certainly some evidence that the defendant is about to leave the country, that he has sold his house and is selling his furniture, and that he intends to take up work in Thailand as a "part time lecturer and accountant". On the whole, I think that the evidence under this head also satisfies me.

I have ventured to deal with the writ more fully than I might otherwise have done because it seems to me desirable that the writ ne exeat regno should be better known. If it is right that the writ should continue to exist, then its ambit and its limitations should be comprehended; if reforms are needed, or if the writ

[1968] 3 All ER 673 at 684

ought to be abolished, then the essentials of what is to be reformed or abolished ought to be understood. A tool of the law, if of any utility, ought not to be left to rust away through ignorance of its existence. As it seems to me, the writ is still extant, though closely circumscribed in its applicability; and improved means of travel have certainly not lessened its utility. But in just under a year, on 9 August 1969, it will be the centenary of the Royal Assent to the Debtors Act, 1869; and the changes in society during that century have been extensive. I am not suggesting that the Act of 1869 is a forgotten statute. Parliament has often looked at it in the last quarter century. In 1947, s 6 itself was made applicable to proceedings by the Crown; see the Crown Proceedings Act, 1947, s 31(2). The Act of 1869 was before Parliament as recently as the Criminal Law Act 1967; see Sch 3, Pt 2. It may be that it is time that Parliament spoke again on s 6, and also considered specifically the writ ne exeat regno, instead of leaving equity to act by analogy; but that is not for me. All that I have to do is to say that in this case, for the reasons that I have given, the writ ne exeat regno cannot be issued. Accordingly, the question whether, on the facts, I would have issued it if there had been jurisdiction to do so does not arise. On the whole, I think that I would.

There is one further point. The interlocutory application made by counsel for the plaintiffs includes an application for

"an order that the defendant do forthwith pay to Midland Bank, Ltd., the sum of £2,995 16s. 9d. plus any further interest charged by the Midland Bank, Ltd., from July 29, 1968, to the date of payment being the amount in excess of the sum of £900 which the partners hereto are indebted to the said bank in respect of the business formerly carried out by them in partnership together."

Counsel very properly cushions the application by offering an undertaking in damages; and he also seeks a direction that, in the event of the defendant failing to make the payment which is ordered, the plaintiffs be at liberty to apply. He referred me to the notes to RSC, Ord 29, r 1, in The Supreme Court Practice 1967, at p 405, where it is said that

"The court is prima facie bound to give effect to a clear right by way of mandatory injunction with certain exceptions, e.g., in the case of contracts of service, or where a continuous series of operations is involved ... "

I accept, of course, that in proper cases equity will make an order for the payment of money, and that, as is shown by Beswick v Beswick, equity may decree specific performance of an agreement between the plaintiff and the defendant that the defendant shall pay money to a third party. But not all that can be done at the trial can be obtained on an interlocutory motion; and here I am concerned with a motion which is not merely interlocutory but also ex parte, launched before appearance has been entered, and seeking a mandatory order. Counsel for the plaintiffs very properly accepts that it requires an exceptional case to justify making a mandatory order on an ex parte application; and it seems to me, on fact such as these, that the court should be most reluctant to make an order for the mere payment of a sum of money. Were such a precedent to be established, plaintiffs might come to court promptly after issuing the writ and before the time for entering an appearance had elapsed, seeking and sometimes obtaining such an order. A vigorous new jurisdiction would then be established, of a promptitude and strength that would put in the shade RSC, Ord 14, and proceedings by way of a summons for judgment in default of appearance or defence. I can see no basis whatever for such a jurisdiction, and in any case I do not think it right on the facts of this case to make such an order. In saying this, I have borne in mind the uncertainty that there is as to the precise sum payable. However, even if the sum were clear and precise, and the

[1968] 3 All ER 673 at 685

order sought were for the lower figure of £2,716 18s 4d; which counsel for the plaintiffs accepts as an alternative to the £2,995 16s 9d claimed, in my judgment no such order ought to be made. Accordingly, I dismiss this application.

It is right that I should add one word. In this judgment I have referred to a number of authorities in addition to those put before me by counsel for the plaintiffs; but I think that in argument all the authorities essential to the decision were duly discussed.

Application dismissed.

Solicitors: Russell-Cooke, Potter & Chapman (for the plaintiffs).

F Guttman Esq Barrister