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Massachusetts Civil Procedure Rule 4.3: Arrest: Supplementary Process: Ne Exeat

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(a) Arrest; Availability of Remedy. Except in cases of civil contempt or as specifically authorized by law, no civil arrest shall be permitted in connection with any action under these rules, except as provided in section (c) of this rule.

(b) Supplementary Process. Supplementary process shall be available in the form, manner, and to the extent provided by law.

(c) Ne Exeat. An order of arrest may be entered upon motion with or without notice when the plaintiff has obtained a judgment or order requiring the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt, and where the defendant is not a resident of the Commonwealth or is about to depart therefrom, by reason of which nonresidence or departure there is danger that such judgment or order will be rendered ineffectual. The motion shall be accompanied by an affidavit showing that the plaintiff is entitled to the relief requested. The court may fix such terms as are just, and shall in any event afford the defendant an opportunity to obtain his release by the giving of an appropriate bond. In this rule the words "plaintiff" and "defendant" mean respectively the party who has obtained the judgment or order and the person whose arrest is sought.

Effective July 1, 1974.

Reporter's Notes: Rule 4.3 has no Federal counterpart. Massachusetts arrest procedure, to the extent that it is still viable, is governed by G.L. c. 224, §§ 1-30; the related subject of bail is covered by G.L. c. 226, §§1-25. There is serious question whether civil arrest, notwithstanding its ancient lineage, could survive a constitutional attack; cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).

Rule 4.3(a) thus eliminates arrest as a vehicle for the commencement of an action; arrest is still available, however, to enforce a judgment of contempt or to effectuate orders of court in the unusual circumstances covered by Rule 4.3(c). Rule 4.3(b) refers to existing law, covering supplementary process. See G.L. c. 224, §§ 14-30. The subject is not appropriate for detailed treatment in the rules.

Rule 4.3(c) treats the writ of ne exeat regno, or ne exeat, ("let him not leave the realm") which is entirely the creature of "the common law and general equity jurisprudence." Cohen v. Cohen, 319 Mass. 31, 36, 64 N.E.2d 689, 692 (1946). It is designed to keep a defendant within the jurisdiction (by physical arrest, if necessary) so that the court's orders can continue to have effect. The writ "'is regarded as little more than an order to hold to equitable bail. The party may generally get rid of it by giving security to abide the event of the cause in litigation.' . . . [It] operates in restraint of personal liberty. It is to be granted with caution. It is to be continued in force with caution." Cohen v. Cohen, supra at 37, 64 N.E.2d at 692-693. An order of arrest is available to assure compliance with any court order, even an order obtained ex parte, provided: (1) the original order or judgment was lawfully obtained; and (2) the court considering the application for the order of arrest is satisfied that justice demands issuance of that order. The requirements of proviso (2) will rarely be met; orders of arrest, therefore will ordinarily not be issued.

The last two sentences of Rule 4.3(c) are designed to prevent indiscriminate application for orders of arrest. Among the terms which a court might properly fix would be "a requirement that the plaintiff give bond to secure the defendant's damages and costs if the arrest proves unlawful or the defendant prevails on the merits." 1 Field, McKusick & Wroth, Maine Civil Practice 163 (1970).