A party to a contract who learns that the other party intends not to perform may sue for anticipatory breach.  Upon filing the complaint, the plaintiff may seek various forms of provisional relief (e.g., a pre-judgment writ of attachment or a preliminary injunction) to prevent further harm or to obtain security for any future judgment.  But an 1854 Washington statute still on the books provides a lesser known and more extreme provisional remedy: arrest.

Under Washington’s ne exeat statute, RCW 7.44, a party to a written agreement may, at any time before performance is due, apply for a writ ordering the defendant’s arrest and bail.  To apply for the writ, the plaintiff must file a complaint and establish by affidavit that (1) the defendant is about to leave the state without performing or making provisions for the performance of the contract, and (2) the defendant intends to take with him or her property that would be subject to execution, with intent to defraud the plaintiff.   In theory at least, once the plaintiff satisfies this requirement and posts a bond, the court may issue a writ to the sheriff for the defendant’s arrest and bail.

By its terms, the statute is not intended to result in the arrest of every defendant who may breach an agreement; indeed, an anticipatory breach is not even required.  Rather, the statute addresses circumstances where the defendant intends to flee the jurisdiction and leave the plaintiff without a remedy.  (“Ne exeat” means “that he not depart.”)  Accordingly, the statute does not require the immediate arrest of the defendant; rather, the sheriff is instructed to obtain a bond from the defendant ensuring future appearance in the lawsuit and compliance with court directives.  Only if the defendant defaults or fails to comply is he subject to possible arrest.[1]

Not surprisingly, ne exeat proceedings are rarely, if ever, used.  In fact, there is only one published Washington case discussing a civil ne exeat petition—a divorce proceeding from 1908.[2]  Likely, this is because the relief accomplished by such an order (i.e., ensuring that defendant and his property remain in the jurisdiction and subject to future judgment) can be accomplished through other, more common remedies that are less likely to infringe on constitutional rights, such as restraining orders, preliminary injunctions, and prejudgment attachment.  And given its seldom application, the statute, which has remained substantially unchanged since its creation,[3] may simply be a relic that is no longer necessary or appropriate in modern society.  So while it may be tempting to seek the arrest of a breaching party, other available remedies are likely more appropriate and, critically, more likely to be granted.

–Ryan Solomon