Brownell v. Akin
New York Supreme Court
Appeal from an order, denying a motion to vacate a writ of ne exeat issued in this action. The defendant, at the time of the death of Justus H. Akin, was indebted to him. Brownell the plaintiff, and Edward Akin the defendant, were the executors of the will of Justus H. Akin and letters testamentary were issued to them. Subsequently, the defendant was removed from his office of executor by the Surrogate.
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Appeal from an order, denying a motion to vacate a writ of ne exeat issued in this action. The defendant, at the time of the death of Justus H. Akin, was indebted to him. Brownell the plaintiff, and Edward Akin the defendant, were the executors of the will of Justus H. Akin and letters testamentary were issued to them. Subsequently, the defendant was removed from his office of executor by the Surrogate. The plaintiff now brings this action to recover the money which the defendant owed to Justus H. Akin at the time of his death, and which has never been paid.- In this action a writ of ne exeat…
1Opinion of the Court
Learned, P. J.:
Whatever my own views may be, it is too late to question the doctrine in this court that the writ of ne exeat is in force. (Beckwith v. Smith, 4 Lans., 182.)
Is the present a proper case for the writ ? The writ lay only for equitable demands. (Seymour v. Hazard, 1 John. Ch., 1.) To this, Judge Story says, there are two exceptions only, one the case of alimony, the other “ the case of an account on which a balance is admitted by the defendant, but a larger claim is insisted on by the creditor.” (2 Story’s Equity Juris., § 1471; Bushnell v. Bushnell, 15 Barb., 399.) That was the…
2Cases cited4 opinions
- Forrest v. ForrestNew York Supreme Court · 1850
- Marvin v. StoneNew York Supreme Court · 1824
- Bushnell v. BushnellNew York Supreme Court · 1853
- Beckwith v. SmithNew York Supreme Court · 1870