delivered the opinion of the court.

The sole question involved herein is whether petitioner may be legally held in custody by the sheriff of Moffat County under and by virtue of a writ of Ne Exeat República, issued out of the District Court for that county, in an action at law there pending, to recover of petitioner herein damages for slander.

The scope of the writ of Ne Exeat has not, in this state, been enlarged by statute, — sec. 469, Code of Civil Procedure, — and if there are exceptions, as claimed, to the rule that the writ is a mesne process of equity, the underlying facts in the action for slander were insufficient to authorize the issuance of the writ. — People, ex rel v. Barton, 16 Colo. 75, 80, 26 Pac. 149, 29 Cyc. 384, 386, 387.

The petitioner is, therefore, entitled to rely upon the habeas corpus act and is accordingly discharged from custody.

Decision en banc.