Gordon v. Fox

Barrett, J. The rule stated in Cowdin v. Cram, 3 Edw. Ch. 231, has not been affected by section 550 of the Code of Civil Procedure. That rule confines the writ of ne exeat in actions for specific performance to cases against the vendee. The principle is that the writ is in the nature of equitable bail, readily fixed where the purchase money is specified, but difficult of ascertainment when the action is against the vendor. Here the complaint shows nothing as to the pecuniary element. The affidavit states that the interest sought to be recovered is worth $250,000, but no facts are stated justifying the assertion. In view of the nature of the thing agreed to be assigned, the statement is necessarily a mere assertion; in fact, an opinion. There was nothing upon which to fix bail at $5,000, or any other sum, and the order should therefore be discharged.