Orr's Case

Davies, J.

In this case judgment was recovered against the defendants Benton and Orr, on December 9,1854. Execution was issued, returned unsatisfied, and in March, 1855, an order was made for the examination of the defendants, a referee was appointed, and such examination had of each defendant. The examinations were concluded before him in September last, when property of the defendant, Orr, was discovered, and it is alleged on the part of the defendant Benton, whom it is now proposed to examine, that Orr has, in fact, paid the debt to the plaintiif, who thereupon on September 22, 1855, assigned the judgment to Lewis and 'Woodruff, who as assignees make this application for the examination of the defendant, Benton. He alleges in his affidavit, that this proceeding is in fact for the benefit of his co-defendant, Orr, who is the only party now interested in the judgment, and that he, Orr, is largely indebted to the firm of Benton & Orr.

I am satisfied on examination of the cases that the assignee of a judgment may institute supplementary proceedings under the Code, although the party applying became the assignee of the judgment after the execution upon the judgment has been returned unsatisfied. (Lindsey v. Sherman, 1 C. R. N. S., 25 ; Hugh v. Rohlin, Ib., 232 ; Ross v. Chessman, Ib., 91).

The case of Gleame v. George, (7 Paige, 121), overrules the case of Waterman v. Russell, (1 Edw., Ch. 509), where a different rule was established by the Vice Chancellor of the First Circuit.

The assignees of this judgment would therefore have a right to this remedy, if it has not already been exhausted. In my judgment it has.

The proceeding under the Code is likened to, and is regarded as a substitute for the creditor’s bill under our former system of chancery practice, and the rules settled in reference to the proceedings under those bills, may with propriety be regarded as controlling, when not altered by the Code or the practice under it. (Griffin v. Dominguet, 2 Duer, 658 ; Davis v. Turner, 4 How. Pr. R., 190, First Rep. of Com. on Practice & Pleading, 201).

It is quite clear from the facts disclosed that the examination of the defendant, Benton, was completed before the referee, and that it was as full and ample as the party seeking it desired. After it was thus finished, and after the assignment of the judgment (and payment of it, as alleged by defendant Benton), the assignees applied to the referee for a further, or re-examination of the defendant Benton. This the referee declined to permit, on the ground that he had completed the same, and that his power was exhausted. In this he is sustained by the opinion of Chancellor Walworth in the case of Hudson v. Plets, (11 Paige, 181). He then held that when the examination of the defendant had been once closed, the master had no authority to issue a new summons for the purpose of compelling the defendant to attend before him, and submit to a new examination, without a special order of the court for that purpose. He says that the master is not authorized to keep the reference open interminably, to enable the complainant to harass the defendant with attendances and reexaminations as often as the complainant thinks proper. If the complainant wished a further examination, he must apply to the court upon proper affidavits and notice to the adverse party for an order authorizing the same.

This has not been done in this case now under consideration, and the defendant has been proceeded against as if no examination in reference to his property had been had. It cannot be sustained upon either principle or authority.

In Corving v. Tooker (5 How. Pr. R., 16), Harris, Justice, says, in reference to an examination like this, in proceedings supplementary to the execution, that “ the examination is in its nature and effect an answer to a complaint.''

In this I entirely concur, and it seems to me that sufficient grounds are not shown, why the defendant Benton should be called on to put in another or further answer to this complaint.

The order, therefore, for his re-examination must be discharged, but without costs.