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 (Davis 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).

f. 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

whether the return was at the creditor's request or not (Forbes v. Walter, 25 N. Y. 440). The courts will not go behind the return, except on a motion to set aside the return (Sperling v. Levy, 10 Abb. 426; Tyler v. Whitney, 12 Abb. 465). The order cannot be made until after the execution has been actually returned unsatisfied (Engle v. Bonneau, supra; Sackett v. Newton, 10 How. 560). Yet where the judgment creditor procured an order about two hours before the return of nulla bona was actually filed, having, at the time, reason to suppose that the return was actually filed, held that the fraction of the day would be disregarded; and the order was held valid (Jones v. Porter, 6 How. 286; and see 5 How. 200).

a. Where an execution has been returned unsatisfied, within five years after the entry of judgment, an order under § 292 may be issued after the expiration of five years from the entry of the judgment (Miller v. Rossman, 15 How. 10). Where ten years intervened the return of the execution unsatisfied, and the application for the order,-held that the application must be granted (Owen v. Dupignac, 9 Abb. 184).

b Who may make the order.-On a judgment in the supreme court, any justice may make the order, without regard to his residence or location, but the debtor must be directed to appear in the county of his residence or place of business (Bingham v. Disbrow, 14 Abb. 251). The order to examine the debtor may be made at chambers (Hulsaver v. Wiles, 11 How. 446); and the warrant to arrest the debtor (subd. 4) may be made by a judge at chambers, residing in the same judicial district, although not in the same county, as the debtor (Wilson v. Andrews, 9 id. 39). As a matter of expediency, however, this power should not be exercised in a case where the judgment debtor resides in a distant county, unless to prevent a failure of justice (id.) The court cannot make an order in these proceedings (Miller v. Roonan, 15 How. 10; Billing v. Vandenburg, 17 id. 80). Entitling the order at special term, if it is in fact made by a judge in an interval of a trial at a special term, does not make the order void (Dresser v. Van Pelt, 15 How. 19).

c The city judge of Brooklyn has not jurisdiction of supplementary proceedings, on execution out of supreme court (Cushman v. Johnson, 13 How. 496). But the recorder of Troy may make the order (Hayner v. James, 17 N. Y. 316).

d. Requisites of affidavit to obtain order.-Supplementary proceedings cannot be maintained on an affidavit which does not truly describe the judgment (Kennedy v. Weed, 10 Abb. 62). Where the affidavit stated a judgment against Ira Weed and Mary Weed, and the transcript docketed was as of a judgment against Ira Weed and Mrs. Weed, held that supplementary proceedings founded upon such docketed judgment, must be dismissed (id.) Such an objection goes to the jurisdiction of the judge granting the order, and cannot be cured by amendment, nor waived by the parties, but is available at any stage of the proceedings (id.) The defendants will not be punished for contempt, or disobeying an order founded on such an erroneous affidavit (id.)

e. It is not necessary to state in the affidavit that the defendant has property (Hatch v. Weyburn, 8 How. 165). The affidavit should describe the execution returned unsatisfied, as an execution "against property" (McArthur v. Lansburg, 1 Code Rep. N. S. 211); except in cases upon a justice's judgment, the affidavit need not state the filing a transcript (Kennedy v. Thorp, 3 Abb. N. S. 132; Bingham v. Disbrow, 5 Trans. App. 198).

f. Where the judgment was recovered in a justice's court, it should appear on the face of the proceedings that the judgment is for twenty-five dollars, exclusive of costs (Whitlock's Case, 1 Abb. 320).

g. Where the assignee of a judgment makes an affidavit to obtain an order under this section, it should appear on the face of the affidavit by what right he moves in the matter; and if it does not, and an order be obtained on it, the order will be irregular (Lindsay v. Sherman, 5 How. 308; Hough v. Kohlin, 1 Code Rep. N. S. 232; Frederick v. Decker, 18 How. 96); and where the affi

davit is made by an agent, it must show that the agent is authorized in the particular proceedings; mere agency implies nothing. The nature of the agency should be stated (Hawes v. Barr, 7 Rob. 452).

a. Where the judgment on which proceedings are had is one rendered in a justice's court, the affidavit on which the proceedings are founded, need not allege that the justice by whom the judgment was rendered had jurisdiction (Conway v. Hitchins, 9 Barb. 378).

b. The affidavit of the judgment creditor is sufficient proof of the return of the execution unsatisfied (id.)

c. The order.—The person, place, and time, before and at which the debtor may be required to appear.—The order should require the judgment debtor to appear before such judge, i. e., the judge making the order (Hatch v. Weyburn, 8 How. 165); or a referee appointed in the order (Hulsaver v. Wiles, 11 How. 446; see § 300). Where the defendant was required to appear in the first judicial district before a justice, naming him, or one of the other justices of the said supreme court, and he appeared before the justice first named, on the return day, and made no objection to the regularity of the order,-held, that assuming the clause, " or one of the other justices," &c., rendered the order irregular, yet such irregularity had been waived (Dresser v. Van Pelt, 15 How. 19; Viburt v. Frost, 3 Abb. 120; 5 Duer, 672; Ammidon v. Wolcott, 15 Abb. 314).

d. The place at which the debtor is required to appear must be within the county "to which the execution issued;" he cannot be compelled to appear in any other county (Hersenheim v. Hooper, 1 Duer, 594; Wilson v. Andrews, 9 How. 39; see Bingham v. Disbrow, 14 Abb. 251).

e. A weigher in the New York city custom-house has not, as such, a place of business in the city of New York (Belknap v. Hasbrouck, 13 Abb. 418, note). And cannot be ordered to appear in the city of New York.

f. An order returnable on Sunday would be a nullity, and be disregarded (Arctic Ins. Co. v. H cks, 7 Abb. 204; Gould v. Spencer, 5 Paige, 541).

g. When the proof will warrant it, the order may combine the purposes to be attained, by sections 292, 294 and 296 (Hulsaver v. Wiles, 11 How. 446). h. Service of the order.—There is no provision as to the time and manner of serving the order. Personal service is sufficient (The People v. Hulbert, 5 How. 446). It is proper to serve a copy of the affidavit on which the order is made (Arctic Ins. Co. v. Hicks, 7 Abb. 204; Utica City Bank v. Buel, 9 Abb. 385; 17 How. 428; Farquharson v. Kimball, 9 Abb. 385, note; 18 How. 33). The original should be exhibited to the party served (Billings v. Carver, 54 Barb. 40). An irregularity in the service would be waived by an appearance, and submitting to an examination without objection (id.) Semble, a party attending as a witness is not, on that account, exempt from service of this order (Paige v. Randall, 6 Cal. R. 32). Perhaps what is said, ante, p. 133, ƒ, as to the service of a summons, may apply to the service of this order.

i. Where the debtor after being duly served with the order moved to vacate it, and on such motion an order was made denying the motion, and ordering the debtor to appear and be examined on a day named in such lastmentioned order, it was held that said last-mentioned order need not be served personally (Johnson v. Tuttle, 17 Abb. 315).

j. Proof of service of order.-The sheriff's certificate is not proof of service of an order in supplementary proceedings (Utica City Bank v. Buel, 9 Abb. 386; 17 How. 498). An appearance, merely to ask an adjournment, is a waiver of all objection to the proof of service (id.)

k Objecting to order.-A party on whom the order is served is not justified in disobeying it because it is erroneous or irregular. He must appear and make his objection (Arctic Ins. Co. v. Hicks, 7 Abb. 204; Hilton v. Patterson, 18 Abb. 245). What is said, ante, p. 315, a, may apply. The order may be vacated or modified ex parte by the judge who made it (§ 324); and if he refuse, the party may appeal (Blake v. Locy, 6 How. 108); or a motion on notice may be made to modify or set aside the order (Lindsay v. Sherman, 5

How. 308; Conway v. Hitchins, 9 Barb. 378; Bank of Genesee v. Spencer, 15 How. 14; Courtois v. Harrison, 1 Hilton, 109). At the return of the order, objections to it may be urged. If these objections are allowed, the order may be vacated (Courtois v. Harrison, 3 Abb. 96). If the objections are overruled, semble, the debtor may appeal to the general term (Conway v. Hitchins, 9 Barb. 378; O'Neil v. Martin, 1 E. D. Smith, 404). If the objections are allowed and the proceeding dismissed, the creditor may appeal (id.) Semble, an appeal by the debtor does not stay the proceedings on the order, nor justify his refusing to be examined (Sluyter v. Smith, Superior Court, Feb. 1858).

a. The validity of the judgment cannot be inquired into in a proceeding under this chapter (O'Neil v. Martin, 1 E. D. Smith, 405; Saunders v. Hall, 2 Abb. 418; Courtois v. Harrison, 1 Hilton, 109); or execution (Sandford v. Sinclair, 8 Paige, 373; Union B'k of Troy v. Sargeant, 53 Barb. 422). But on a proper case being presented, the proceedings may be stayed to enable the debtor to apply to set aside the judgment or execution (id.)

b. Effect of order.—Obtaining an order under this section does not create a lien on the equitable assets of the debtor as against other creditors (Beekman v. Torrance, 31 N. Y. 631; Voorhies v. Seymour, 26 Barb. 569; Edmonston v. McLoud, 16 N. Y. 543).

c. In a proceeding under this section, no order can be made affecting the rights of third parties (Woodman v. Goodenough, 18 Abb. 265).

d. Proceedings on return of order.-Adjournment.-Where, on the return of the order, the judge is not present, it is the duty of the judg ment debtor to wait a reasonable time for his arrival (Reynolds v. Mc Elhone, 20 How. 454).

e. Where the examination is before a referee, an adjournment of the proceedings before the referee should be by the referee (Mason v. Lee, 23 How. 466; and see Allen v. Starring, 26 How. 57).

f. Unless the proceedings are regularly continued from day to day, jurisdiction is lost of them, but the error is waived, and jurisdiction restored by the subsequent appearance of the judgment debtor without objection (Ammidon v. Wolcott, 15 Abb. 314; Hawes v. Barr, 7 Rob. 453).

g. Where the proceedings are before a referee, and the examination is closed it cannot be opened except by order of a judge (Orr's Case, 2 Abb. 457).

h. Examination upon order.-Upon an examination under this section, a general denial of any property except his necessary wearing apparel, is not sufficient; the debtor must give a particular account and value of such wearing apparel, for the court to judge whether it is within the exemption (Brown v. Morgan, 3 Edw. Ch. R. 278).

i. The object of the examination of the judgment debtor, in proceedings under this section, the kind of questions which may be put to him, and the manner in which he may answer, were considered in Leroy v. Halsey, 1 Duer, 589; Sandford v. Carr, 2 Abb. 464. In the former case the debtor was asked, "Are you a housekeeper?" to which he answered, "My wife has a lease of the premises on which I reside, and owns the furniture, and I reside with her -she having a separate estate." The answer was objected to; but the judge held the defendant was not bound to answer yes or no, but might explain his position.

j. The debtor cannot be required to answer any questions which do not tend to show whether he is possessed of, or entitled to, any property which might be ordered to be applied towards satisfaction of the judgment (Hunt v. Enoch, 6 Abb. 212).

k. Where the question to the debtor was as to the amount of incumbrances on his property at a certain date, some six months previous to the examination; his answer was that he was unable to give the information,—held that admitting the question was proper, the answer would not be deemed evasive (Wickes v. Dresser, 14 How. 465).

7. Upon an examination under this section, the party or witness under examination cannot refuse to answer a question because the answer will show