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 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.

in the Appendix.

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.

In Van Wyck v. Bradly, 3 C. R. 157, it was held that the claim alone of a person examined, "terminates all right to relief against him in this proceeding." That relief can only be obtained by an action under sec. 299. "If he claims the whole property,

he need answer no further; the validity of the claim is to be settled in a suit against him," where he will have the usual advantages. "Still, the claimant may be required to state distinctly what the measure of his claim is, though not what his title is, that the receiver may know whether it covers all the property which the plaintiff alleges to belong to the defendants, or only a part of it; and, if the claimant refuses any explanation as to the origin or nature of his claim, it may, perhaps, be considered by the judge as a reason for allowing an injunction against him." A similar view is taken in The People ex rel. Williams v. Hulburt, 5 How. 446; 9 L. O. 245; 1 C. R. (N. S.) 75, before cited.

In the case of Corning v. Tooker, 5 How. 16, the following rules are also laid down, in reference to examinations of the nature:

1. The judge or referee may, in his discretion, allow corrections or explanations to be made by a party examined, after his examination has been concluded, by a supplemental statement, the original being left unaltered.

2. The party examined under sec. 294 is, in effect, a party to the proceeding, and his examination should be conducted in the same manner as that of the judgment debtor under sec. 292.

3. He is not entitled to a cross-examination, but may have the advice of counsel in framing his answers. The examination itself is, in fact, a cross-examination. When concluded, he has a right to add such explanations as above, to prevent misapprehension.

4. A person not a party to the proceedings upon the examination, though interested in the matter, cannot be allowed to appear by counsel.

In Le Roy v. Halsey, 1 C. R. (N. S.) 275, the form of examination of a judgment debtor, and the nature of the questions which may be put to him, is also fully considered. The following is stated as the conclusion come to by the court: "It is impossible to lay down any particular rules on the subject, which shall be universally applicable, further than this, that the whole examination must have for its single object to ascertain whether there is any property of the debtor which ought to be applied to the payment of the plaintiff's claim; and the extent of the inquiry in each particular case, must be left to the good sense of the officer under

whose direction the examination takes place, having in view this general object.

The following directions are given by sec. 297, in respect to the disposal of property, discovered in the hands, either of the judgment debtor himself, or of a third party :.

§ 297. 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.

The restrictions in respect to the earnings of the debtor himself are new, and have not, as yet, been made the subject of express direction. Where this privilege is claimed by the debtor, proof to the effect stated must be tendered by him, by his own affidavit, or otherwise, at the time of his examination. A form of order under the section last cited, is given in the Appendix.

The following further powers are also conferred upon the court by sec. 298:

§ 298. 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 supplementary 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 receivership. No more than one receiver of the property of a judgment 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.

The provisions in relation to the pending of other supplemental proceedings, and the course to be adopted thereon, are new, and have not as yet been made the subject of judicial interpretation.

This last clause secures, as will be seen, to the judgment debtor," the exercise of the equitable remedies of receiver and injunction.

The forms of orders for these purposes will be found in the Appendix.

The doctrine laid down on the subject of the provisions of sections 297 and 298, in Kemp v. Harding, 4 How. 178, has been before made the subject of comment. In one respect, however, that case may be considered as of authority, viz. that a receiver cannot be appointed without notice to the judgment debtor. See also Dorr v. Noxon, 5 How. 29, and Todd v. Crooke, 1 C. R. (N. S.) 324. In The People ex rel. Williams v. Hulburt, before cited, it is laid down that such an appointment may be made before the return of an execution, in those cases, in which, under section 292, the debtor himself can be examined before such return.

In Corning v. Tooker, 5 How. 16, before cited, the following further principles were laid down on this branch of the subject:

1. Where an examination has been had under sec. 294, the judge may either order the money, appearing to be in the hands of a third party, to be paid over under sec. 297, or may appoint a receiver, under sec. 298, at his discretion; the only restriction on this discretion is that contained in sec. 299.

2. Where it appears doubtful, from such examination, which of two parties is really indebted to the judgment debtor in the sum found to be due to his estate, the proper course is to appoint a receiver, in order that the conflicting rights of the parties may be properly determined by an action. A summary order might work injustice to one or the other.

In Porter v. Williams, 5 How. 441, 9 L. O. 307, 1 C. R. (N. S.) 144, it is laid down that no formal assignment from the judgment debtor is required, to vest in the receiver the right to property affected by an order under the foregoing sections. The original order for the debtor's examination, gives the judgment creditor the same lien upon equitable assets, (except property exempt from execution,) as he would have acquired by the commencement of a creditor's suit, under the old practice; and the orders, under which the receiver is appointed, of themselves vest the property in him without the necessity of any formal assignment, though such an assignment is usually taken.

In The People v. Hulburt, 5 How. 446, &c., before cited, the same doctrine is maintained as to personal estate, and also, though somewhat doubtfully, as to the rents and profits of real property. An assignment under seal will, in all cases, be necessary, to pass the title to such real property itself. The power of the supreme court

to order an assignment of this nature is asserted, though the right of an inferior tribunal to do so is denied. See this case, before cited on the latter subject.

In Dorr v. Noxon, 5 How. 29, before cited, it appeared on the referee's report, that a third person was in possession of property, and was colluding with the debtor, under which circumstances, the court considered the proper remedy of the creditor was, to levy on the goods, and sell them under his execution, or to institute an action, in the nature of a creditor's bill, against the judgment debtor and his fraudulent assignee; though, possibly, it was said, a receiver might be appointed.

In Todd v. Crooke, 1 C. R. (N. S.) 324, it was held to be unnecessary for a party moving for a receiver under this section, in a case where his proceedings were in conflict with those of other judgment creditors, who had instituted similar measures, to do more than give notice of his motion to the latter, or to serve a copy of the debtor's examination on them. "It was intended, by the Code, to assimilate the appointment of a receiver to the practice formerly pursued in chancery." It having been contended, that his proper course was to have made a levy on the property: it was further held that "the plaintiff was entitled to a receiver, and was not obliged to have the property levied upon, and test the right in that manner."

The powers conferred as above, only extend to monies actually due to the defendant at the time of the application, and not to monies to become due on any contingency, or on an executory contract, not performed at the time of the examination. A plaintiff was, therefore, held to have no lien on future instalments, to be paid under a building contract with a defendant, in proportion as the work to be done by him progressed; where nothing was then due, and the defendant had assigned the benefit of the contract to a third party, to secure past advances.-McCormick v. Kehoe, 7 L. 0. 184.

In Bunn v. Fonda, 2 C. R. 70, it was held that a non-resident judgment debtor may, under these provisions, be compelled to convey property, but not to deliver household furniture, in use by him out of the state, and that such a party is entitled to the same benefit of exemption as to property out of the state, as if he were a resident, and the property within the state.

The above provisions, so far as regards the disposition of property, have reference, however, only to cases in which the title to