Wilson & Calkins agt. Andrews; Same agt. Same, 9 How. Pr. 39

Willard, Justice. The first question is, whether a justice of the supreme court has authority at chambers to issue a warrant under § 292 of the Code for the arrest of a judgment debtor residing in the. same judicial district, hut in a county different from that in which the judge resides. If this power he not possessed, there will he many cases in which § 292 cannot be executed.

If no justice of the supreme court resides in the county of the debtor, and the debtor happen to be related to the county judge, or the latter is interested in the question, the creditor is remediless under this section. ■ Although this is not a good reason for the exercise of authority where none is conferred, it is a good ground for believing that it has not been intentionally omitted, if it has been omitted at all. The first branch of the

section relates to the examination ol the debtor after the return of an execution unsatisfied, in whole or in part. Under the Code of 1848, if the judgment debtor resided in the county where the judge resided, he must be required to attend personally before the judge; if in any other county, before a referee, who was required to certify the examination to the judge. (§ 247-251.) The Code of 1849 so altered this part of the section, as to require the debtor to appear before such judge, or a referee appointed by a judge of the court, at a time and place specified in the order. Under this

section the judge appointed a referee, whether the defendant resided in the county of the judge or not—and he might be required to appear before the judge, whether he resided in the same county or not. (See 9 Barb. 378.) But the Code of 1851 has so altered this section, that the order for the defendant to appear and answer concerning his property must be before such judge, at a time and place specified in the order, within the county to which the execution was issued.

The order in this case was irregular, in requiring the defendant to appear before the judge at his Chambers in Saratoga Springs, and it was, therefore, properly set aside. But that did not affect the order forbidding the transfer of property. That still remained in force. Nor did it affect the warrant, which was clearly supported by a sufficient affidavit. The second subdivision of the.

section provides for the examination of the debtor after the issuing of the execution, and before its return. As these proceedings were not under that part of the section, I will proceed to the third subdivision of the section, which is an alternative proceeding to both the others.

It provides that instead of an 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 judgment 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) he may be 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 contempt. The third subdivision does not, like the first and second, specify what judge may take cognizance of the case. Of course any judge within his jurisdiction may administer the act. It would be idle to confine it to a judge residing in the county of the debtor, when the latter is in his flight to another state, and is passing through another county.

Hence the warrant requires the sheriff of any county where such debtor may be, to arrest him and bring him before such judge; that is, the judge who issued the warrant. As a matter of expediency, a justice of the supreme court should not order a debtor to be arrested and brought before him from a distant county, unless to prevent a failure of justice. The question in this case is not, whether in the given case the power was indiscreetly exercised, but whether the judge had any power at all. I think he had the power.

The granting an irregular order for examining the judgment debtor under the first subdivision was no waiver of the warrant. It was entirely harmless and was not carried into effect, but revoked by the judge. The foregoing remarks dispose of the three first objections taken to the proceedings under the warrant. The next objection relates to the. power of appointing a referee to take the examination of the judgment debtor.

Under the Code of 1848, there was no provision for the arrest of the debtor, save what is contained in the act of 1831 to abolish imprisonment for debt, and to punish fraudulent debtors. (L. of 1831, p. 396.) The Code of 1849 introduced the warrant, when it was made to appear that there was danger of the debtor’s absconding, and made provision for his examination before the judge, or a referee.

The Code of 1851, § 292, required, before granting the warrant, that it should be made to appear 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. Upon being brought before the judge it is further provided that he may be examined on oath, &c. The 192d

section is silent as to a referee, but the 295th

section .enacts that 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. And provision is also made for taking such examinations under oath. This provision is general, and obviously refers to an examination under a warrant as well as to other examinations. This

section is a revision - and enlargement of the 251st

section of the Code of 1848. The 300th

section also authorizes the judge, in his discretion, to order a reference to a referee agreed upon or appointed by him, to report the evidence or the facts. The judge, therefore, clearly hada right to appoint a.referee, and there is no provision requiring him to be a resident of the county of the debtor. The principle on which Sherwood agt. Tremper (11 J. R. 406) was decided, is inapplicable to a reference in supplemental proceedings. It remains to inquire whether a receiver may be appointed, based upon facts disclosed on an examination of the debtor, brought up on a warrant.

The 298th section, authorizing the appointment of a receiver, is general in its provision, and extends to this case. The object of the warrant is to secure the defendant from absconding, and thus to compel an examination.' If the facts be such that a receiver is necessary to complete the remedy, he may be appointed as well upon an examination under a warrant, as under an order.

But I see no object in appointing a receiver, except to preserve the property, since the creditor by an action in the nature of a creditor’s bill, in which the assignee of the judgment debtor should be made a party, can better assail the assignment than the receiver. Besides, the question whether a receiver represents the creditors, and can maintain an action to set aside a fraudulent assignment, is still pending in the court of appeals undecided. I will, however, if desired, appoint a receiver.