Cow. 598; 10 Wend. 615; 5 Barb. 105; and see 3 E. D. Smith, 66; 11 Barb. 481; 4 Sand. 696; 1 Johns. Cas. 102; 14 Johns. 63; 8 id. 357; 1 id. 144; 4 Hill, 559; 5 id. 568; 7 id. 186; 3 Wend. 331; 8 Cow. 126; 3 id. 353; 7 id. 469, 480; 10 Paige, 370).

a. A judgment in an action at law may be set off against a judgment in a foreclosure action (Holden v. Gilbert, 7 How. 208).

b. Set off not usually allowed to prejudice of attorney's lien (Ainslie v. Boynton, 2 Barb. 268; Gridley v. Garrison, 4 Paige, 647; Ely v. Cook, 9 Abb. 366), but an attorney's lien is no bar to an action to obtain a set off (Brooks v. Hanford, 15 Abb. 342; and see Noxon v. Gregory, 5 How. 339); attorney's lien for costs in note to § 303, post.

c. Where the judgments to be set off are in different courts, the motion should be made in the court in which the judgment against the moving party was rendered (Cooke v. Smith, 7 Hill, 168; Ross v. Hicks, 11 Barb. 480).

d. A motion to set off judgments obtained in a justice's court, transcripts of one or both of which have been filed with the county clerk, should be made in the county court (Ross v. Hicks, 11 Barb. 481).

e. On a motion to set-off judgments, the papers should be entitled in both actions (Alcott v. Davison, 2 How. 44).

f. Motions to set-off are addressed to the discretion of the court, and will be allowed, to prevent injustice (Baker v. Hoag, 6 How. 201; Purchase v. Bellows, 16 Abb. 105).

g. As to setting off costs against recovery, where one party recovers and the other is entitled to costs, see § 370, post.

h. To deprive a party of his right to set off, the assignment must be bona fide (Butler v. Niles, 26 How. 61).

i. Where plaintiff purchased a judgment against his creditors, and actually paid for it, before the transfer of their demand against him to a third person, but the written assignment of the judgment to him was not executed till after that time,-held he was entitled to offset such judgment (Barber v. Spencer, 11 Paige, 517; and see Terry v. Roberts, 15 How. 65; rev'd 17 How. 341); set-off against assignee with notice allowed (Noxon v. Gregory, 5 Barb. 339; Baker v. Hoag, 6 How. 201).

j. On this subject, see Crocker v. Claughly, 2 Duer, 684; Betts v. Garr, 1 Hilton, 411; Mackey v. Mackey, 43 Barb. 58.

k. Set-off not allowed (Harris v. Palmer, 5 Barb. 105; Smith v. Briggs, 9 Barb. 252; Ross v. Hicks, 11 Barb. 481; Nash v. Hamilton, 3 Abb. 351; Ely v. Cook, 9 Abb. 366; Roberts v. Carter, 38 N. Y. 107).

CHAPTER II.

Proceedings supplementary to execution.

SECTION 292. Order for discovery of property, examination of judgment debtor, &c.

293. Any debtor to execution debtor may pay his debt to the sheriff.

294. Examination of debtors of judgment debtor, or of those having property belonging to him.

295. Witness required to testify.

296. Compelling party or witnesses to attend.

297. What property may be ordered to be applied to the execu

tion.

298. Judge may appoint receiver and prohibit transfer of prop

erty.

299. Proceedings upon claim of another party to property, or on denial of indebtedness to judgment debtor.

300. Reference by judge.

301. Costs of proceeding.

302. Disobedience of order, how punished.

§ 292. (Am'd 1849, 1857, 1858, 1859, 1863, 1867.) Order for discovery of property, examination of judgment debtor, &c.

(1.) When an execution against property of the judgment debtor, or of any one of the several debtors in the same judgment, issued to the sheriff of the county where he resides or has a place of business, or, if he do not reside in the State, to the sheriff of the county where a judgment-roll, or a transcript of a justice's judgment for twenty-five dollars or upward, exclusive of costs, is filed, is returned unsatisfied in whole or in part, the judgment creditor, at any time after such return made, is entitled to an order from a judge of the court, or a county judge of the county to which the execution was issued, or a judge of the court of common pleas for the city and county of New York, when the execution was issued to such city and county, requiring such judgment debtor to appear and answer concerning his property, before such judge at a time and place specified in the order, within the county to which the execution was issued. But in case of an order made by a justice of the supreme court all subsequent proceedings shall be had before some justice in the judicial district where the judgment debtor resides, to be specified in the order. (2.) After the issuing of an execution against property, and upon proof by affidavit, of a party or otherwise, to the satisfaction of the court or a

judge thereof, or county judge, or any judge of the court of common pleas for the city and county of New York, that any judgment debtor residing in the county where such judge or officer resides, has property which he unjustly refuses to apply towards the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear at a specified time and place, to answer concerning the same; and such proceedings may thereupon be had for the application of the property of the judgment debtor towards the satisfaction of the judgment as are provided upon the return of an execution.

Whenever it shall satisfactorily appear, by affidavit, to a justice of the supreme court, that such county judge, or judge of said court of common pleas, is incapacitated from acting in any of the proceedings whatever, herein authorized, from any cause or causes whatsoever, such justice of the supreme court shall have the same powers and authority, in all cases whatever, as are herein conferred upon him as to cases of judgments in the supreme court. (3.) On an examination under this section, either party may examine witnesses in his behalf, and the judgment debtor may be examined in the same manner as a witness. (4.) Instead of the order requiring the attendance of the judgment debtor, the judge may, upon proof by affidavit or otherwise, to his satisfaction, that there is danger of the debtor's leaving the State, or concealing himself, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriff of any county where such debtor may be, to arrest him and bring him before such judge. Upon being brought before the judge, he may be examined on oath, and, if it then appears that there is danger of the debtor's leaving the State, and that he has property which he has unjustly refused to apply to such judgment, ordered to enter into an undertaking with one or more sureties, that he will from time to time attend before the judge as he shall direct, and that he will not, during the pendency of the proceedings, dispose of any portion of his property not exempt from execution. In default of entering into such undertaking, he may be committed to prison by warrant of the judge, as for a contempt. (5.) No person shall, on examination pursuant to this chapter, be excused from answering any question on the ground that his examination will tend to convict him of the commission of a fraud; but his answer shall not be used as evidence against him in any criminal proceeding or prosecution. Nor

shall he be excused from answering any question on the ground that he has, before the examination, executed any conveyance, assignment, or transfer of his property for any purpose, but his answer shall not be used as evidence against him in any criminal proceeding or prosecution.

a. Corporations.-This chapter (except perhaps § 294, see in note to that section) was held not to apply to judgments against corporations (Hinds v. Canandaigua R. R Co. 10 How. 487; Sherwood v. Buffalo R. R. Co. 12 id. 136); nor to corporations which are insolvent (Hammond v. Hudson River Iron Co. 11 id. 29). But it applies to judgments against stockholders in banking corporations (Laws 1863, ch. 273, § 4).

b. On a judgment against a domestic corporation, and an execution returned unsatisfied, on the petition of the judgment creditor, the supreme court may sequestrate the stock, property, &c., of such corporation, and appoint a receiver (2 R. S. 463, § 36); such receiver acts for all the creditors, but the receiver may be discharged on satisfying the plaintiff's claim, it not appearing that any other creditor has sought to avail himself of the receivership (Angell v. Silsbury, 19 How. 48). As to the sequestration of the property of corporations (Corning v. Mohawk Valley Ins. Co. 11 How. 190; Halliday v. Noble, 1 Barb. 137).

c. Nature of the proceeding.—A proceeding, under this section, is a proceeding in the action, not a special proceeding (Dresser v. Van Pelt, 15 How. 19; Bk of Genesee v. Spencer, id. 412; Seeley v. Black, 35 How. 369); it is in the nature of a new suit (2 Duer, 658; Driggs v. Williams, 15 Abb. 477; contra, Holstein v. Rice, 15 Abb. 307; 24 How. 135). It is a substitute to some extent for the former creditors' bill (Carter v. Clarke, 7 Rob. 43), and the rules settled in reference to the proceedings under these bills, may, with propriety, be regarded as controlling, when not altered by the code or the practice under it (Orr's Case, 2 Abb. 458; and see Myer's case, 2 Abb. 476; Sale v. Lawson, 4 Sand. 718; Lilliendahl v. Fellerman, 11 How. 528; 2 Abb. 452; Driggs v. Williams, 15 Abb. 477). It is a proceeding before a judge, not the court (Miller v. Rossman, 15 How. 10; Bitting v. Vandenburg, 17 id. 80). There seems to be no impropriety in styling the parties plaintiff and defendant (Daris v. Turner, 4 How. 190).

d. Jurisdiction.-The power given by this section being a mere statute authority, unless the facts necessary to bring the case within the section are proved, the judge has no jurisdiction; the mere appearance of the judgment debtor, and his examination without objection, does not confer jurisdiction (Sacket v. Newton, 10 How. 561; Carter v. Clarke, 7 Rob. 497; De Comeau v. The People, id. 498). But jurisdiction once acquired, it continues until the proceedings are terminated (Webber v. Hobbie, 13 How. 383).

e. Bankruptcy.-An execution debtor who has petitioned for his discharge in bankruptcy, is entitled to a stay of supplementary proceedings against him, pending the proceedings in bankruptcy (The World Co. v. Brooks, 7 Abb. N. S. 212).

ƒ. To what cases this section applies.-This section applies to judgments against joint debtors, where one only was served with process (Jones v. Laulin, 1 Šand. 722; and § 294, post). To justices' judgments of which transcripts have been filed with the county clerk (Conway v. Hitchins, 9 Barb. 378). It does not apply to the case of a foreign consul who has permitted judgment to be taken against him by default (Griffin v. Dominquez, 2 Duer, 658); nor after an arrest on an execution against the person (Logan v. Ferris, Daly, J., not reported, Sept., 1852); except in cases after a discharge of the execution debtor, within the law of 1857 (see Charging in execution, ante, p. 442). But it is no objection to the proceedings under this section, that after making the order, the judgment creditor has issued another execution against

the property of the judgment debtor, and that such execution has been levied, unless it is clear that such levy will be effectual to satisfy the judgment (Sale v. Lawson, 4 Sand. 718; Farquharson v. Kimball, 9 Abb. 385, note; 18 How. 33; Lilliendahl v. Fellerman, 11 How. 528; 2 Abb. 155; Thomas v. Ewen, 11 Paige, 135). Nor is it any reason for staying the examination upon an order obtained under this section, to show that after the making, and before service of such order, the judgment creditor has issued an attachment against the judgment debtor as a nonresident debtor (Hanson v. Tripler, 1 Code Rep. N. S. 154). If, pending a proceeding under this section, the creditor institutes an action to set aside an assignment made by the debtor, the court will not compel him to elect between his action and proceeding under this section (Taylor v. Persee, 15 How. 417).

a. Where, on a judgment for $600, an execution was returned wholly unsatisfied, and afterwards, on the defendant's motion, the judgment was reduced and the judgment-roll and execution amended,-held that such amendment did not render it necessary to issue another execution, to entitle the judgment creditor to an order under this section (Sluyter v. Smith, Superior C't, Feb. 1858).

b. These proceedings can be taken on a judgment against a married woman (Thompson v. Sargeant, 15 Abb. 452).

c. The payment of the amount of the judgment, without interest, is no answer to an order to examine the debtor; these proceedings may be taken to collect the interest (Johnson v. Tuttle, 17 Abb. 315).

d. These proceedings cannot be had on a justice's judgment, for less than $25 (Butts v. Dickinson, 20 How. 230; 12 Abb. 60; Vulte v. Whitehead, 2 Hilton, 596; Anon. 32 Barb. 201).

e. Where, subsequent to obtaining the judgment, the judgment debtor has received his discharge in insolvency, the judgment creditor cannot have an order under this section. The validity of the discharge can be tried only in an action (Smith v. Paul, 20 How. 97, and see Rich v. Salinger, 11 Abb. 344; Coursen v. Dearborn, 7 Rob. 143; Stuart v. Salinger, 14 Abb. 291; Dresser v. Shufeldt, 7 How. 85).

f. Whether these proceedings can be instituted on a judgment obtained on a service by publication? (Barker v. Johnson, 4 Abb. 435).

g. Proceedings may be had on a judgment of the marine court, upon the return by a marshal of an execution unsatisfied (Laws 1865, ch. 400).

h. To entitle the judgment creditor to the remedy here provided, against a resident of the State, the execution must issue to the county in which the judgment debtor resided at the time the execution issued (Bingham v. Disbrow, 14 Abb. 251); or had a place of business (Belknap v. Hasbrouck, 13 Abb. 418, note); it need not be his principal place of business (McEwen v. Burgess, 15 Abb. 473; 25 How. 92). It is immaterial where the defendant resides, at the time the order issues (Jesup v. Jones, 32 How. 191).

i. Assignee may obtain order.—An assignee of a judgment may institute proceedings under this section (Lindsay v. Sherman, 5 How. 308); although the judgment was not assigned until after the execution was returned unsatisfied (Orr's Case, 2 Abb. 457). And such assignee may institute proceedings supplementary to the execution, in the name of the party to the action (Ross v. Clussman, 3 Sand. 767).

j. When an order for the examination of the judgment debtor may be applied for.-Before the execution creditor is entitled to pursue this remedy, his remedy on the execution should be really exhausted. If, however, the sheriff has returned the execution unsatisfied, upon his official responsibility, without any fraud or collusion, then, although the period of time allowed for the return has not yet expired, or the sheriff had notice of property belonging to the defendant, yet the order may be granted (Storrs V. Kelsey, 2 Paige, 418; Engle v. Bonneau, 2 Sand. 679; Livingston v. Cleaveland, 5 How. 396; Utica City Bank v. Buel, 9 Abb. 385; 17 How. 498; Tyler v. Whitney, 12 Abb. 465; Fenton v. Flagg, 24 How. 499). It is immaterial