Rule 4.3.Arrest: Supplementary Process: Ne Exeat
Effective July 1, 1974 · Last verified June 26, 2026
Full Text of Rule 4.3
Rule History
Effective July 1, 1974.
Reporter’s Notes
(1973)
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).
Plain-English Summary
Rule 4.3 covers the rare cases where a court reaches a person, not property, to make its orders work. Its starting point is restrictive: except for civil contempt or where a statute specifically allows it, no one may be arrested in a civil case—and civil arrest can never be used to start an action.
Two narrow remedies remain. Supplementary process—the post-judgment procedure for examining a debtor and enforcing payment—continues to operate as provided by statute. And the ancient writ of ne exeat (“let him not leave”) lets a court order a defendant’s arrest to keep that person from leaving Massachusetts when departure would render a judgment or order requiring some act ineffectual.
The ne exeat remedy is hedged with safeguards. The plaintiff must move with a supporting affidavit showing entitlement to relief, the court sets just terms, and the defendant must always be given a chance to win release by posting an appropriate bond. Because it restrains personal liberty, the writ is granted sparingly. Rule 4.3 has no federal counterpart—the Federal Rules leave these subjects to state law.
Frequently Asked Questions
Can a person be arrested in a civil case in Massachusetts?
Only in narrow situations. Rule 4.3 bars civil arrest except in cases of civil contempt, where a statute specifically authorizes it, or under the limited ne exeat procedure in section (c). Arrest can never be used merely to commence an action.
What is a writ of ne exeat?
It is an order that a defendant be arrested to prevent them from leaving the Commonwealth when their departure would make a court’s judgment or order ineffective. The plaintiff must support the request with an affidavit, and the defendant may obtain release by posting an appropriate bond.
Does Rule 4.3 have a federal equivalent?
No. Rule 4.3 has no counterpart in the Federal Rules of Civil Procedure; arrest, supplementary process, and ne exeat are governed by Massachusetts statutes and equity practice.