terminates the right to relief as against him under these proceedings, and no examination can be had for the purpose of defeating such claim. The claimant may be required to state the measure, but not the nature of his title. Ib.

a. In proceedings under this section, notice may or may not be given to the debtor, in the discretion of the judge. Kemp v. Harding, 4 Pr. R., 178.

b. In proceedings under this section there is no provision for the application of the property of the debtor to the payment of the judgment, as provided by section 292. Ib.

c. Neither is there any provision for an examination as to the property at large of the debtor. lb.

d. In the unreported case of Tyschener v. Tyschener (7 April, 1854), there was a motion for the appointment of a receiver, and Clerke, J., denied the motion, and said, "This is a proceeding under section 294 of the code. The appointment of a receiver under section 298 can only be on proceedings against the debtor himself, instituted for the purpose of reaching his property generally upon notice to himself. In proceedings under section 294, there is no authority or provision to compel the application of the property of the debtor to the payment of the judgment as provided by section 292 (Kemp v. Harding, 4 Pr. R., 178), has been overruled at general term.

e. An order under this section directing a third person in general terms to pay to the judgment creditors towards the satisfaction of the judgment whatever money is or may become due to the judgment debtor from such third person, and also requiring him specifically to give a note for a sum certain, which appeared to the judge making the order to be the amount actually due, is no bar to an action by the judgment debtor against such third person to recover so much of the latter's indebtedness to the former as was not included in the said note, or paid under the said order. Hauptman v. Catlin, 1 Smith, 730.

In what case this section does not apply.

f. The Clerk or Chamberlain is an "officer of the court," and not a 66 person or corporation" within the meaning of this section. Anon. 1 Code Rep. N. S., 211.

g. Wherein a foreclosure suit, there were surplus moneys in the hands of the clerk or chamberlain, and subsequently in another action, judgment was obtained against one of the parties entitled to such surplus, the judgment creditor applied for an order on the chamberlain to appear and answer under this section. His application was refused. 1b.

$ 295. [250.] Existing suits. Witnesses required to testify. Witnesses may be required to appear and testify on any proceedings under this chapter, in the same manner as upon the trial of an issue.

§296. [251.] (Amended 1849.) Existing suits. Compelling party or witnesses to attend.

The party or witness may be required to attend before the judge, or before a referee appointed by the court or judge; if before a referee, the examination shall be taken by the referee, and certified to the judge. All examinations and answers before a judge or referee, under this chapter, shall be on oath, except that when a corporation answers the answer shall be on the oath of an officer thereof.

8297. [252.] (Amended 1851.) Existing suits. property may be ordered to be applied to the execution.

What

The judge may order any property of the judgment debtor, not exempt from execution, in the hands either of himself or any other person, or due to the judgment debtor, to be applied towards the satisfaction of the judgment; except that the earnings of the debtor for his personal services, at any time within sixty days next preceding the order, cannot be so applied when it is made to appear by the debtor's affidavit or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor.

a. The part in italic is new. This section, before amendment, was identical with section 252 of the code of 1848; and under that section it was decided, that a nonresident judgment debtor might be compelled to convey, but not to deliver, property that he has out of the State. Bunn v. Fonda, 2 Code, Rep., 71. And that a nonresident debtor is entitled to the same benefit of the exemption laws as to his property out of the State, as if he were a resident, and the property were within the State. Ib.

b. Section 252 (now section 297) of the code of 1848, was held to apply only to moneys actually due to a judgment debtor, and not to moneys to become due on a contingency, or on an executory contract. McCormick v. Kehoe, 7 Legal Obs., 184.

c. So that when A. was examined as to money alleged to be due defendant, and it appeared that A. had agreed to convey land to defendant upon his erecting buildings thereon, A. to make advances to defendant as the work progressed; but that at the time of the examination nothing was done by defendant under the contract; and it also appeared that defendant, before any further payment was due him, had for value, assigned such payment and the contract to B., without notice of the proceedings; held, that the plaintiff had no lien on such moneys. Ib.

d. A creditor cannot, by a proceeding supplementary his execution, returned unsatisfied, reach movables which the debtor assigned for the benefit of his creditors while the execution was in life in the sheriff's hands. Watrous v. Lathrop, 4 Sand. 700.

e. He might have levied his execution on such property after the assignment; but his priority over the assignee ceased when the execution was returned without levying it. Ib.

f. The lien of the execution was then spent, and the supplemental proceeding does not revive it as against the assignee. Ib. An execution when returned is spent, and it cannot be made to effect a lien by relation. Weed v. Pierce, 9 Cow., 728.

g. Where it appeared, upon a reference, that a judgment debtor had the use of furniture, that the same had been sold under a judgment against him, and bought in by one Perkins, a relation of the judgment debtor, who had left the same in the possession of the mother of the judgment debtor, and with whom the judgment debtor resided, and who had the use of the furniture, the court would not, without notice to and hearing Perkins, direct the delivery of the furniture to a receiver.-Robeson v. Ford. 3 Edw. Ch. R., 441.

h. Money earned, though not payable presently, might be reached by a creditor's bill. 3 Edw. Ch. R., 457; 4 ib., 653.

i. "Under a creditor's bill in the late court of chancery, the plaintiff could not reach the effects of the debtor which he had earned or acquired after the filing of the bill. (Browning v. Bettis, 8 Paige, 564; 2 Barb. Ch. Pr., 153; M'Cam v. Dorsheimer, 1 Clark, 144.) If the debtor acquired property or rights in action after the filing of the bill, it could only be reached in that suit by means of a supplemental bill;

and it is supposed that, as section 297 is unqualified in its terms, it changes the rule which formerly prevailed, so as to authorize the judge to direct the application to the creditor's demand of any property or choses in action which the debtor may have at the time the order is made, although it may have come to him after the proceedings before the judge were commenced. But we think otherwise. The proceedings authorized by section 292 to 302 inclusive, is a cumulative remedy, given to the creditor in cases where it is applicable, but to be administered upon the same principle, substantially, as in an action for the same end. This seems obvious from a comparison of sections 298 and 244. If we are right in this view, the receiver appointed under section 298 would not take any property or effects of the debtor, acquired by him after the application to the judge for the order under section 292; and it would be imputing an inconsistency to the legislature, to construe section 297 as extending further, and embracing property or effects which could not be reached through a receiver under section 298." Caton v. Southwell, 13 Barb., 337. In a note to that case, it is stated that since its decision, the sections considered had undergone "material alterations." It is true the sections were altered, but not, as we conceive, so as to affect the decision in Caton v. Southwell; and if that decision was correct at the time it was pronounced, which we somewhat doubt, it is correct still.

a. Where the funds are in the hands of the defendant and there is no dispute as to the ownership, and it appears clearly that the funds belong to the defendant, it is proper to make an order to pay the money, or apply it directly in satisfaction of the judgment. But where the title to the funds in the hands of the defendant is in dispute-claimed by persons other than the defendant-such an order is improper; the judge, under the authority conferred by sections 292 and 293 of the code, has no right to try and determine in this summary manner these conflicting claims. The People v. King, 9 Pr. R., 97.

b. The proper order in such case, is to restrain the defendant from paying over the funds to any person, and to appoint a receiver, whose duty will be to apply for an order requiring the defendant to pay the money into court, when all the parties can be heard and the controversy disposed of. Ib.

c. The judge before whom the proceedings are had may determine that the judgment debtor has property which should be applied to the payment of the judgment; and, on the refusal of the judgment debtor so to apply it, may commit him as for a contempt, though he deny, on his examination on oath, that he has any such property. In re Pester, 2 Code Rep., 69.

d. Such imprisonment is not limited to thirty days. Ib.

e. Under the code, an order for the sequestration of the property of a judgment debtor is no longer necessary. West v. Fraser, 5 Sand. 653. In that case the defendant, a judgment debtor, was in contempt for disobedience to an order requiring him to make an assignment of his property to a receiver before appointed; and an application, founded on the case of The People v. Rogers, 2 Paige, 104, was made for an order of sequestration, and the delivery of the property sequestered to the receiver. The application was denied, and, per Duer, J., "It seems to me that this application is quite useless. No assignment is necessary to vest in the receiver all right and title, legal or equitable, of the debtor to his property and effects (except his real estate) within this State; and it is such only that an order of sequestration would embrace. The title of the receiver becomes perfect when he has given the requisite security, and it then operates, by relation, from the time that the order for his appointment was made; that order is, per se, a sequestration, and gives to the receiver all the necessary means for enforcing his rights. Where a third person is in possession of property of the debtor, which he refuses to deliver to the receiver, I see no reason why its delivery may not be compelled, under section 294 of the code. The filing of a complaint by the receiver, can only be necessary when a third person sets up an adverse title; and the necessity, in such a case, for the institution of a suit, would not be removed by an order for sequestration. (Albany City Bank v. Schumacher, 1 Clark, 278, 300; Porter v. Williams, 1 Code Rep., N. S., 144; Van Wyck v. Brady, 3 Code Rep., 157).

f. The order under this section, forbidding the transfer of the defendant's property, though sometimes spoken of as an injunction, is not so called in the code, and is a

different proceeding from injunctions granted in an action as a provisional remedy. There should, no doubt, be some reason appearing in the affidavit, before the judge should forbid a transfer or other disposition of the property of a judgment debtor. The code is silent as to what facts should be stated, and thus leaves each case to be disposed of by the sound discretion of the judge. Green v. Bullard, 8 Pr. R., 316.

a. Where a receiver has been duly appointed under proceedings supplementary to execution to enforce payment of a judgment against the co-partnership property, he ought not to be made a party to an action, and an injunction issued restraining him in the discharge of his official trust. The proper remedy in such case is to apply to the court for instructions. The receiver then regularly appointed, becomes entitled to the possession of the debtor's property. The effects thus in his possession, are deemed in the possession of the court. To enjoin a receiver under such circumstances from taking possession of the property, is but to restrain the court itself from making the proper disposition of the funds which may come into the receiver's hands. Van Rensselaer v. Emery, 9 Pr. R., 135.

b. See note to section 292, and amendment to section 302.

§ 298. [253.] (Amended 1849–1851.) Existing suits. Judge may appoint receiver, and prohibit transfer, &c., of property.

The judge may also, by order, appoint a receiver of the property of the judgment debtor, in the same manner, and with the like authority, as if the appointment was made by the court, according to section 244. But before the appointment of such receiver, the judge shall ascertain, if practicable, by the oath of the party, or otherwise, whether any other supple mentary proceedings are pending against the judgment debtor, and if such proceedings are so pending, the plaintiff therein shall have notice to appear before him, and shall likewise have notice of all subsequent proceedings in relation to said receiver ship. No more than one receiver of the property of a judg ment debtor shall be appointed. The judge may also, by order, forbid a transfer or other disposition of the property of the judgment debtor, not exempt from execution, and any interference therewith.

c. The part in italic is new in code of 1851.

d. Where a receiver was appointed upon a creditor's bill, and the defendant was directed to deliver over his property to such receiver, the defendant was bound to answer every question which was relevant to the subject matter of inquiry. Gihon v. Albert, 7 Paige, 278.

e. Under the usual order, that the defendant assign and deliver over his property and effects, he had formerly to execute a formal assignment to the receiver, although he denied that he had any property. Chipman v. Sabbaton, 7 Paige, 47.

f. On the appointment of a receiver the property of the judgment debtor is thereupon vested in such receiver; no assignment in fact is necessary; and a county judge has no power to order an assignment to be executed. The People v. Hulbert, 1 Code Rep. N. S., 75; Porter v. Williams, ib., 144; 5 Pr. R., 441.

g. A receiver appointed by a judge in a supplementary proceeding after execu tion obtains title to the property of the judgment debtor, by force of his appointment,

when perfected, without the execution of an assignment by the debtor. Porter v. Williams, Ct. of Appeals. Dec. 1853.

a. An assignment to a receiver of "all his personal and real estate," made in pursuance of an order of the court, is sufficient to convey the lands of the assignor in this State without any specific description of the lands. Chautauque Co. Bank v. White, 2 Selden, 237.

b. "It is objected that the code gives authority neither to a court nor to a judge to order an assignment. The code makes no provision for an assignment, and, consequently, the judge had no authority to order it. An assignment, however, in a proceeding of this kind, is probably unnecessary in order to vest the necessary title in the receiver to enable him to prosecute demands and collect money due. The necessary title and authority for such purpose, tc rights and property of this description, vest in the receiver immediately upon his appointment, as an incident to the office, witbout any formal assignment." The People v. Hulbert, 1 Code Rep., N. S., 77.

c. In regard to real estate, it is different. There an assignment under seal would be necessary to transfer the title to the receiver, though perhaps he might collect rents and profits without any assignment. Doubtless the supreme court, by virtue of its original and inherent power and authority, and especially since the accession of equity powers and jurisdiction, may order and compel an assignment, without any statutory provision. Inferior officers and tribunals must, however, show a warrant in the statute for every step they take affecting the rights of parties before them, or the proceedings will be unauthorized and void. "The appointment in the same manner' only relates to the mode or form of the appointment. The cases or circumstances which authorize it are found in section 292." And where a party refuses to apply property which he has, in satisfaction of the judgment, the design was to authorize the appointment of a receiver, without any reference to the return of the execution. And a receiver may be appointed before the execution is returned. Ib.

d. To authorize the appointment of a receiver under this section, the proceeding should be against the debtor, to reach his property generally, and the motion to have a receiver appointed should be on notice to the debtor. Kemp v. Harding, 4 Pr. R., 178; Dorr v. Noxon, 5 Pr. R., 29; Corning v. Tooker, 5 Pr. R., 16.

e. Such appointment is not authorized, on an examination under section 294, of third persons, as to property in their hands. lb.

f. The debtor should have notice of the proceedings under this section. If he has absconded, or cannot for any reason be served with a summons, under the act, the remedy must be complaint, in the nature of a creditor's bill, in which the debtor may be proceeded against as an absentee. Ib.

g. In a proceeding supplemental to an execution, where other creditors have commenced like proceedings, they are entitled to notice of application for a receiver, but not to service of a copy of the examinations on which it is founded. Todd v. Crooke, 1 Code Rep. N. S., 324; 4 Sand., 694.

h. The proceeding is summary, and in theory it follows directly on the close of the debtor's examination, he being present, and no notice being necessary. Ib.

i. Where other creditors are proceeding, they must have notice; and so must the debtor, when his examination has been taken before a referee. Ib.

j. Although it appear, by the debtor's examination, that the property which the judgment creditor seeks to reach as his, is such, and so situated, that the creditor may seize it on a new execution, he will not be driven to that remedy if the property be claimed by a stranger. He may have a receiver, and contest, in a suit brought by him, the title to the property. Ib.

k. This was held where it appeared that the judgment debtor had formerly possessed, using as his own, certain vessels, but which he alleged were all bought for or were owned by his sisters, and that these vessels were where they might be levied upon by a new execution. Ib.

7. Where it is uncertain who is the debtor to the judgment debtor-the party alleged to be so or another-a receiver should be appointed. Corning v. Tooker, 5 Pr. R., 16.