(dissenting.) The writ of ne exeat was expressly abolished by section 178 of the Code of Procedure. The language of the section is, “ Ho person shall be arrested in a civil, action,, except ■ as prescribed in this act.” Section 179 then enumerates the cases in which persons may be arrested; and cases in which the wi*it of ne exeat was allowed, are omitted. Arrest, therefore, in such cases, is prohibited.
But it is said that this writ is revived by the act of De*214cember 14, 1847, (Laws of 1847, p. 640, § 13,) as it declares that any justice of the Supreme Court, or a county judge, may, out of court; allow writs of ne exeat, in suits and proceedings in the Supreme Court. I do not think that this incidental provision amounts to a-repeal of section 178, so far as it concerns the writ of ne exeat. Repeal by implication is not favored; and, unless the later act takes some notice of the former, plainly indicating an intention to abrogate it, the later will not be deemed a repeal of the former. (See Bowen v. Lease, 5 Hill, 221; Williams v. Potter, 2 Barb. 316.)
[New York General Term, January 4, 1869.If an incidental provision in an act be deemed a repeal of an express provision of a former act, it will make the confusion which we already have, in our law, “ worse confounded,” will mar any harmony that is left in it, and will open the door still wider to fraudulent legislation.
Ho notice whatever is taken, in the act of 1847, of sections 178 and 179 of the Code; there is no reference to it; it is not even incidentally named; indeed the person who prepared the act of 1847 was, probably, totally ignorant of the effect of these sections on the writ of ne exeat. The same remarks apply to the act of 1857, relating to the Superior Court of Buffalo.
If these acts do not repeal sections 178 and 179, as to their operation on the writ of ne exeat, and if they do not revive or create that writ, it cannot be considered a statutory remedy; and sections 468 and 471 have no application to it.
The order appealed from should be reversed, with costs, and the order allowing the >writ, and the writ itself, should be vacated.
Order affirmed.
Clerke, Sutherland and Geo. G. Barnard, Justices.]