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The above proceeding is one of an ordinary description, applicable to all cases of whatever nature, and requiring no special proof to warrant its adoption. Where, however, the judgment debtor is supposed to be retaining or concealing property applicable to the payment of the debt, a more stringent remedy is obtainable, and that at any time after the issuing of execution, without regard as to whether such execution has or has not been returned. This remedy is obtainable under the second clause of the section, as before cited.
The application for an order of this nature is also ex parte, but it must be grounded on express affidavit, showing a state of facts bringing the case within the provisions so made. In a Note to the case of Jones v. Lawlin, 1 C. R. 94, it was held that an affidavit of this nature must state that the debtor has property of some kind which ought to be applied to the debt, and which has not been reached by the execution; or some equivalent allegation. This position seems indisputable. That assumed by the court of common pleas, in Tillow v. Vere, 1 C. R. 130, viz.: that a mere statement, that the plaintiff believes the defendant has property attainable under the execution, is not sufficient, but that the affidavit must state positively that the defendant has property, and specify of what that property consists,” is more questionable ; though to a certain extent confirmed by Engle v. Bonneau, 2 Sandf. S. C. R. 679; 3 C. R. 205. In one branch of cases especially, in which the application of this species of relief is most needed, i. e., those where a plaintiff is aware that the defendant is fraudulently concealing some of his property, but cannot exactly ascertain what part of it, a too strict application of this rule would practically deprive the former of all remedy. The court of common pleas have, in fact, receded from the position taken by them in Tillow v. Vere, and, in Hough v. Kohlin, 1 C. R. (N. S.) 232, stated that, for the future, they had concluded to grant such orders thereafter, without such allegation: and there seems no doubt but that the same conclusion will be adopted by the other tribunals, provided all the circumstances under which relief is sought, are made to appear on the face of the affidavits as positively as possible, and it be made evident thereon, that the plaintiff's belief is not, as it would seem to have been in Tillow v. Vere, merely speculative, but is, on the contrary, a rational conclusion, founded upon positive facts, showing, at the least, a prima facie case of fraud, if not establishing the actual existence of that element in the transaction.
As the statements in an affidavit of this nature must necessa. rily depend upon the peculiar circumstances of each case in which relief of this nature is sought, it would be idle to give precedents, or to do more than merely suggest, that the specific words of the section, i. e. that the debtor“ has property which he unjustly refuses to apply towards the satisfaction of the judgment,” should, in all cases be introduced as the ground work of the charges made by the affidavit. The form of the order to be applied for will be found in the Appendix.
In cases where an absconding or concealment on the part of the debtor is apprehended, a further and more stringent remedy is provided. Under these circumstances, on proof by affidavit, or otherwise to the judge's satisfaction, that there is danger of the debtor's leaving the state, or concealing himself, and reason to believe he has property, which he unjustly refuses to apply to the judgment, a warrant may be issued for his apprehension, instead of the order requiring his attendance. On applying for this more stringent form of proceeding, the affidavit must be specially framed with that view, and must show, affirmatively, the existence of danger of the above description, and also that there is good reason to believe as above stated; and this as positively as possible, stating facts and circumstances, on which a wellfounded belief may be raised in the mind of the judge also. See the questions as to the requisites of affidavits of this description, subsequently considered under the heads of arrest and attachment. On the judge being satisfied to the above effect, a warrant is issued by him, requiring the sheriff to arrest and bring the debtor before him. This warrant ought, it would seem, to be issued as ordinary process in the cause, in the name of the people, and under the seal of the court, and not in the name of the judge, though his previous allowance is necessary before it can issue. See this question considered under the analogous head of attachment; and see, in particular, the case of Camman v, Tompkins, 1 C. R. (N. S.) 12, there cited. See also form of this process in Appendix.
On being brought before the judge, the debtor may, as has been seen, be examined ; and, if the existence of the facts on which the warrant was issued be made apparent, 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, and also that he will not, pending the proceedings, make away with any portion of his available property. See form in Appendix : and, in default of entering into such undertaking, he may be committed to prison under a warrant of the judge, as for a contempt. See also Appendix for form of warrant.
The different forms of process by which the attendance of the judgment debtor may be enforced, having thus been considered, the mode of proceeding thereon is the subject which next presents itself.
In the first place, the examination in question may either be taken by the judge who issues the process, or, under sec. 300, he may “ in his discretion order a reference to a referee agreed upon or appointed by him, to report the evidence or the facts."
In Hough v. Kohlin, 1 C. R. (N. S.) 232, it is stated to be the practice of the court of common pleas, in applications grounded on the judgment of an inferior court, to appoint, as referee, the justice who rendered the judgment, unless otherwise disqualified, as was there the case.
In Conway v. Hitchins, 9 Barb. S. C. R. 378, before cited, it was held that a county judge has the same power to appoint a referee for these purposes, as is possessed by a judge of the supreme court; and, likewise, that any judge, having jurisdiction in the matter, has power to make such an appointment, without first requiring notice to be given to the defendant, and to select his own referee for that purpose, the parties having no voice in the matter.
In Hollister v. Spafford, 3 Sandf. S. C. R. 742, 1 C. R. (N. S.) 120, the superior court laid down as a general rule, that a reference will not be granted by them in these cases, against the wishes of either party; unless it becomes apparent that a difficult and protracted investigation must ensue, and the examinants have counsel, in which case one will be directed. In proceedings not falling under this description, the examination must, it was there laid down, proceed at the chambers of the court, and before or under the superintendence of one of its judges.
A referee of the above description, required by the order to report the facts, is not at liberty to report the evidence instead of them; and, if he do so, his report will be irregular, and may be sent back to him.- Dorr v. Noxcon, 5 How. 29.
On the appearance of the debtor before the judge or referee, he
may be examined in the same manner as an ordinary witness, and either party may examine witnesses in his behalf; and it is expressly provided, as before cited, that no party or witness so examined, shall be excused from answering any question, on the ground that his examination will tend to convict him of the commission of a fraud. His answer cannot, how- | ever, be used against him, on a criminal proceeding. See various cases cited on the subject of examinations of this nature, in the subsequent parts of this chapter, and also heretofore, under the head of the law of evidence as affected by the Code.
The manner in which witnesses may be compelled to appear, and the formal course of proceedings on an examination under any of these proceedings, are thus prescribed by sections 295 and 296.
$ 295. Witnesses may he required to appear and testify on any proceedings under this chapter, in the same manner as upon the trial of an issue.
$ 296. 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.
The remedies provided in cases of this nature do not, however, stop here, but extend to the discovery of property in the hands of third parties, under sec. 294, which runs as follows:
$294. After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, and upon an affidavit that any person or corporation. has property of such judgment debtor, or is indebted to him in an amount exceeding ten dollars, the judge may by an order require such person or corporation, or any officer or member thereof, to appear at a specified time and place, and answer concerning the same. The judge may also, in his discretion, require notice of such proceeding to be given to any party to the action, in such manner as may seem to him proper.
In an anonymous case, 1 C. R. (N. S.) 211, it was held that, where surplus monies in a foreclosure suit were in the hands of the clerk or chamberlain, such officer could not be examined under the
foregoing clause, but that the regular course will be to apply by motion or petition in the suit in question. The affidavit on which an order under this section is obtainable, must be positive, and must distinctly show one, or the other, or both of the states of circumstances above mentioned. One merely following the alternative wording of the statute was held to be insufficient in Lee v. Heirberger, 1 C. R. 38. The form of the order to be applied for, is given in the Appendix. The giving or not of notice to the parties in the action is left, as will be seen, in the discretion of the judge. In the absence of his express direction, the safer course will be to give it to all parties directly interested, and to the judgment debtor at all events. See, however, Kemp v. Harding, below cited.
The positions on the subject of these proceedings, laid down in the case of Kemp v. Harding, 4 How. 178, seem, in all main respects, to be questionable, and to be overruled by the decisions subsequently cited, and by the obvious construction of the provisions in this chapter taken as a whole. The doctrines that, on an examination of this nature, there is no authority or provision for proceedings as to the application of the property of the debtor to payment of the judgment, and also that the powers of a receiver appointed under sec. 298 do not extend to monies in the hands of third parties, but only to proceedings against the debtor to reach his property generally, seem especially doubtful. Section 297, providing that 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, appears to have been completely overlooked, though it seems to afford a full and complete solution of the difficulties which were there raised. The views enounced, limiting the general authority of a receiver to get in the property of the judgment debtor, in whose-soever hands that property may be, *seem equally open to exception.
The following principles have been laid down on the subject of the examination of third parties under this section.
A stranger to the action, examined under these circumstances, cannot stop the examination by merely claiming an interest in the property. The plaintiff may proceed to make enquiries “ into the manner in which, and the time when, the property came into the hands of the witness, and also into the nature and extent of the lien claimed ; but he must go no further.” — Barculows v. Protection Company of N. J., 2 C. R. 72.