Miller agt. Rossinan. SUPREME COURT. HENRY MILLER agt. STEPHEN ROSSMAN. Where an execution has been returned unsatisfied within five years from the entry of judgment, an order under § 292 of the Code in proceedings supplementary to execution, may be issued, after five years from the entry of judg meat. The doctrine of the case of Currie agt. Noyes, (1 Code R., N. S. 198,) which holds adversely, ought not to be extended beyond its own peculiar circumstances. If carried out to its legitimate results, it would debar a judgment creditor from ever instituting such proceedings on a judgment of over five years' standing. Because, an execution may be issued by leave of the court after five years from the entry of judgment; but there is no provision for applying to the court for leave to issue an order in proceedings supplementary to execution. The court, as such, is not authorized to entertain these proceedings at all. The order must be made only by a judge of the court or a county judge. Albany Special Term, June, 1857. MOTION to set aside proceedings supplementary to execution. The judgment in this action was recovered on the 28th day of May, 1851. On the 18th of May, 1853, an execution was issued thereon to the sheriff of Columbia, the defendant being a resident of that county. The execution was returned unsatisfied. On the 20th of November, 1854, the defendant removed to the state of Michigan, where he remained until the 30th of May, 1857, when he returned to Columbia county. On the first day of June, 1857, the plaintiff obtained from the county judge of Columbia, an order for the defendant to appear and answer concerning his property, pursuant to the 292d section of the Code, which order was served on the 3d of June. These proceedings are still pending. The defendant moved to set aside the order of the county judge and all subsequent proceedings, on the ground that more than five years had elapsed since the recovery of the judgment. JOHN M. WELCH, for plaintiff. Miller agt Rossman. HARRIS, Justice. 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 Bridgewater Paint Manuf. Co. agt. Messmore. This he could not do, upon the ground that more than five years have elapsed since the issuing of execution in this cause. for the execution was issued in 1853. 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. SUPREME COURT. THE BRIDGEWATER PAINT MANUFACTURING COMPANY agt. DANIEL MESSMORE. After a defendant has put in and justified bail, he cannot move for a discharge from the arrest. This, however, applies only to those stages of the action which precede the judgment. If an execution bo issued against the defendant's person, he may move to set it aside as not warranted by the facts: and it would be no answer to his application to say that he had allowed himself to be arrested by preliminary process. Bridgewater Paint Manuf. Co. agt. Messmore. New-York Special Term, December, 1857. DEFENDANT in this case was arrested and held to bail for money received in a fiduciary capacity, and after the justification of bail, he made a motion to be discharged from arrest, upon affidavits denying, as he alleged, the facts stated in plaintiff's affidavit, as the grounds of the arrest in this action. LUMAN SHERWOOD, for motion. JNO. O. ROBINSON, opposed, Who stated as a preliminary objection, that such motion could not be made after the perfecting of bail. That such was the rule under the old practice, and such is the rule under the Code. (§ 204 of Code; 2 Abbott, 384; 1 Duer, 645; 3 Sand. 706.) SHERWOOD denied that the reason of the old rule applied to the present practice, and cited (Corwin v. Freeland, 2 Seld. 560,) as overruling all the former authorities upon this point. ROOSEVELT, Justice. The language of the Code, as well as the authorities, are clear on this point, that after the defendant has put in and justified bail, he cannot move for a discharge from the arrest. Whatever is said of the reasoning, the rule is settled. It applies, however, only to those stages of the action which precede the judgment. The object of the arrest, as well as of the bail, is to secure the defendant's appearance whenever called for, at and previous to the judg ment, and on the service of process to enforce it. (Code, § 187.) That being accomplished, the bail is functus officio, and the estoppel created by giving it, ceases. Should an execution be taken out against the defendant's person, he may move to set it aside, as not warranted by the facts; and it would be no answer to his application to say that he had allowed himself, on the same facts, to be arrested by preliminary process. A quiet submission to one wrong may provoke, but does not The Bank of Genesee agt. Spencer. justify another. Estoppels are not extended by implication. They are confined to the precise matter embraced in them. Although, therefore, the defendant cannot be relieved from an arrest which he has acquiesced in, he may be from an execution, as to the form of which, except incidentally, he has never been heard. The present motion cannot be granted, but the denial is without prejudice to any motion which may hereafter be made to stay or discharge an execution against the person of the defendant. SUPREME COURT. The President, Directors and Company of the Bank of GENESEE agt. BURRAL SPENCER, impleaded. To get rid of an order improperly made by a judge at chambers, the remedy is by motion to the court to set it aside. A judge at chambers has no power to make an absolute, indefinite and continuing order, either to set aside or stay proceedings. At most he has only power to stay the proceedings for a time, as until the next term, or until a rule nisi has been applied for, so as to afford an application to the court. And this rule applies to proceedings supplementary to execution. The judge before whom these proceedings have been instituted and are pending, including a county judge, has sole and exclusive jurisdiction over them until they are finally disposed of. No other judge or officer at chambers can have any power to come in and stay such proceedings by a general order, upon terms. It belongs to the duties of a judge sitting as a court, and not at chambers. Seventh District General Term, September, 1857. Present, JOHNSON, STRONG and SMITH, Justices. THIS was a proceeding before the county judge of Genesee county, supplementary to execution. A reference was ordered for the examination of the defendant. From this order, the defendant appealed to the general term, where the order was |