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
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 assign
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.