Opinion
Argued December 9, 1879
Decided February 3, 1880
Cephas Brainerd, for appellant.
Samuel Hand, for respondent.
The question whether the writ of ne exeat was abolished by the Code of Procedure has been much discussed, and the adjudications upon the point are conflicting. In the Supreme Court, the power of the court to issue the writ has been maintained, and the court has acted upon that view of the law in numerous cases. ( Forrest v. Forest, 5 How. Pr., 125; 10 Barb., 46; Bushnell v. Bushnell, 7 How. Pr., 389; 15 Barb., 399; Rogers v. Michigan, etc., R.R. Co., 28 id., 539; Glenten v. Clover, 10 Abb., 422; Neville v. Neville, 22 How., 500; Breck v. Smith, 54 Barb., 212; Viadero v. Viadero, 7 Hun, 313.) In the Superior Court of the City of New York the contrary view has been entertained. ( Fuller v. Emeric, 2 Sandf., 626; Johnston v. Johnston, 1 Rob., 642.) The question has not been passed upon by this court, and it has ceased to be of any practical importance, so far at least as future cases are concerned, for it is set at rest by section 548 of the Code of Civil Procedure which declares in terms that the writ of ne exeat is thereby abolished, and a substitute therefor is provided by section 550, subd. 4. These provisions impliedly concede that the writ had not previously been abolished, and so far as any weight is to be given to a legislative construction of the former act, they tend to sustain the view of the Supreme Court. It would be unprofitable now to enter upon a discussion of the merits of the question. The decisions of the Supreme Court having been acquiesced in and acted upon so many years, a very strong and clear case would be required to induce us at this late date to reverse them, and we do not think the appellant has presented such a case. The question itself is by no means free from doubt and there are strong arguments in support of the decisions of the Supreme Court, but in addition to these considerations, the point is not distinctly presented by the order appealed from. The ne exeat in this case was issued in March, 1869. A motion was made on the part of the defendant in May, 1869, to vacate this writ and the order for its issue, or to reduce the amount of bail, and that the sum of $10,000 deposited by the defendant with the sheriff be restored, and for general relief. This motion appears to have been founded on the merits and equities of the defendant's case, and neither in the notice of motion, or in any of the papers, does it appear that the ground was taken that there was any want of power to issue the writ, or that the court was called upon to decide or did decide any such question. The order made upon the motion is dated May 24, 1869, and simply directs that the bail be reduced from $10,000 to $2,500 and that the sheriff restore to the defendant $7,500 of the money deposited. No further disposition of the motion to vacate the writ appears to have been made or insisted upon, and if the point was made that the writ was illegally issued, that point was not decided by the order. The motion to vacate, although not granted, was not in terms denied. This is the order appealed from. The appeal was not taken until January, 1879, nearly ten years after the making of the order, and the fair presumption is that all that was presented to or passed upon by the court at Special Term was the right of the defendant to relief upon the facts of the case, and that the point now raised on this appeal is an after thought. Under such circumstances we do not feel called upon to review the long line of decisions rendered in the Supreme Court upon the point during the past twenty years. The order should be affirmed without costs.
All concur.
Order affirmed.