Breck v. Smith

Sutherland, J. The codifiers may have intended to abolish the writ of ne exeat, but I do not think they succeeded in doing so. I suppose there never has been, or ever will be, a codifier who, at the close of his work, does not think that he has done many things that he has not done, and who has not done many things that he did not intend to do. The act of December 14, 1847," amending the judiciary act of May 12, 1847, conferred on any justice of the Supreme Court, or county judge, the power, out of court, to allow writs of ne exeat in suits and proceedings in the Supreme Court. (See Laws of 1847, p. 640, § 13.) Section 471 of the Code expressly provides that part second of the Code “ shall not affect” any special statutory remedy not heretofore obtained by action; and section 468 of the Code continues the practice before in use, to prevent a failure of justice, in a case where a remedy cannot be had by action according to or under the Code. It appears to me that these sections, especially section 471, continue the [213] writ of ne exeat, and the power to issue it as a statutory remedy, in the justices of the Supreme Court. The act of 1857 relating to the Superior Court of Buffalo (Laws of 1857, p. 752) would appear to be a legislative assumption of the continuance of the power of the Supreme Court to issue the writ. The remaining question is, did the court below err in refusing to vacate the order for the ne exeat and the writ. Considering that the defendant Smith did not make the motion as being in custody under thé writ, but as having been discharged from custody on giving the bail, or security to the sheriff, and that he did not ask in his notice of motion to have the bail bond or undertaking given up to be canceled, I do not think it can be said that the court below erred in denying the motion. It does not appear to me that it would have been right to have granted the motion on the answers and the affidavits denying any intention, to leave the state or country. If the defendant did not intend to leave the jurisdiction of the court, he having given the bail and having been discharged from the arrest, what harm could come to him, or to his sureties, if things were left as they were. ‘ I think the order should be affirmed, without costs to either party. Geo. G. Barnard, J., concurred.