I was at first inclined to grant this motion upon the authority of Currie agt. Noyes. (1 Code R., N. S. 198.) But, upon more consideration, I am satisfied that the doctrine of that case ought not to be extended beyond its own peculiar circumstances.
Before the adoption of the Code, a creditor’s bill might be filed at any time within ten years after an execution had been returned unsatisfied. (Corning agt. Stebbins, 1 Barb. Ch. 589.) The 292d section of the Code, declares that when an execution has been returned unsatisfied, the creditor, at any time after such return made, shall be entitled to an order for the examination of the debtor. There is no limitation or restriction, at least in terms, upon this right. On the contrary, the legislature had just before declared in the most positive and unrestricted terms, in respect to an execution, that after the lapse of five years from the entry of the judgment, it could only be issued by leave of the court. It was "thought best, before allowing the property of a defendant to be seized upon an execution issued upon a stale judgment, to give him an opportunity to be heard. The same reason does not apply to supplementary proceedings.
The doctrine of Currie agt. Noyes, if carried out to its legitimate results, would debar the creditor altogether from the right to institute supplementary proceedings upon a judgment of more than five years’ standing. An execution may be issued after five years, upon obtaining leave of the court. But there is no provision for obtaining leave to institute supplementary proceedings. The court, as such, is not authorized to entertain the proceedings at all. The order is to be made, not by the court, but by a judge of the court or a county judge.
Suppose this motion were to be granted, and the plaintiff were to obtain leave to issue a new execution, as he has done at the present term, the defendant would have the same ground for setting aside the supplementary proceedings which might be commenced upon the return of the new execution unsatisfied, that he has upon this motion. For he does not move now *12upon the ground that more than five years have elapsed since the issuing of execution in this cause. This he could not do, for the execution was issued in 1853. He relies solely upon the fact that it is more than five years since the judgment was recovered. In a case where the judgment was not only of five years’ standing, but the execution had also been returned more than five years, I might feel constrained to follow the authority of Currie agt. Noyes, but even then it would be with some hesitation.
The counsel for the defendant seemed to think that the doctrine of Currie agt. Noyes, had been sanctioned in Swift agt. Flanagan. (12 How. 438.) But this is not so. The question before the court in that case was, whether, when an execution had been issued and returned unsatisfied within five years after the recovery of the judgment, another execution might afterwards be issued without obtaining leave from the court. Some judges had thought that this might be done. The case of Currie agt. Noyes, was cited to show that the court which decided that case thought otherwise. It was only pertinent for that purpose. The question now under discussion was in no way involved in that case. The motion must be denied, but I think it should be without costs.