Calkins agt. Williams and Brand. subscription. The contrary, I think, is clearly inferrible from the complaint. The case of the Trustees of Hamilton College vs. Stewart (1 Cow. 581), can have no application. The contract in that case was clearly without consideration. The corporation undertook to do no act as a condition for the subscription, neither was there any possible pecuniary benefit to result to the defendant. The plaintiffs are entitled to judgment on the demurrer, but the defendants are at liberty, on payment of costs of demurrer, in twenty days after service of notice of this order, to answer the complaint. 5 How. 393-Contra, 6 How. 172; 9 Id. 465. SUPREME COURT. CALKINS agt. WILLIAMS AND BRAND. Public officers, sued as such, where they succeed in the action, are entitled to double costs under 2 R. S. 617, § 25. The Code has not repealed that provision. (There are adverse decisions on this point. See 4 and 5 How. Pr. R.) Such costs can not be allowed upon a report of referees; it is only in cases of verdict, demurrer, non suit, non pros or discontinuance (2 R. S. supra). Madison Special Term, February 1850. Z. T. BENTLY, for Plaintiff. WM. J. HOUGH, for Defendants. MASON, Justice. The defendants are public officers and have defended the action successfully, and now ask for double costs under the statute (2 R. S. 617, § 25). Calkins agt. Williams and Brand. against the policy of the law to favor repeals by implication (Smith's Con. Statutes and Constitutional Law, 879); and if by any fair interpretation the two statutes may stand together they shall so stand; and Smith says when it is not manifestly the intention of the legislature that the subsequent statute shall repeal the former, it is the duty of the courts to give them such constructions as will uphold them both, even though the words taken strictly might seem to repeal the former act (Smith on the Construction of Statutes, 879); applying this rule to the case under consideration, I do not think it would be safe to hold that the statute giving to a public officer double costs for defending, is to be deemed repealed by the Code of procedure. I know that the 303d section of the Code abolishes all statutes establishing or regulating the costs or fees of attorneys, solicitors and counsellors in civil actions, and gives in the place thereof a certain allowance to the party by way of indemnity for his expenses in the action and which allowances are termed costs and go to the party and not the attorney or counsel in the suit; and the 307th section of the Code provides that when costs are allowed they shall be as regulated by that section; but I am not able to discover any thing in those sections which by implication even can be said to repeal the 25th section 2 R. S. 617, and I can not think the 468th section of the Code, which repeals the statutory provisions inconsistent with that act, is to be considered as having this effect. The statute was passed to afford some indemnity to public officers for their trouble and expense in the defence of suits improperly brought against them; and there is the same reason for the statute now that there was before the passage of the Code of procedure; and I can not think, after a careful examination of the provisions of the Code and the best reflection which I have been able to bestow upon the subject, that it was the intention of the legislature to repeal this statute. It has never been considered that the change of the general fee 'bill of costs operated as a repeal of this statute in favor of officers. The statute of 1840, which changed entirely the general fee bill of attorney and counsel, was never considered to have such Calkins agt. Brand and Williams. effect. We can not, however, give these defendants double costs upon this report of the referee. The statute only allows it upon verdict, demurrer, non suit, non pros or discontinuance (2 R. S. 617, § 25); and it has been expressly adjudged that a report of referees is not within the terms of the statute, and that double costs can not be allowed upon a report (19 W. R. 225). The defendants also ask for an additional allowance under the 308th and 309th sections of the Code; and I am satisfied, after a careful examination of the papers before me upon this motion, that this is a proper case to allow the defendants a per centage, upon the value of the property claimed by the plaintiff and which was the subject of litigation in this action. The amount is stated in the referee's report at $840.17, upon which sum I order and direct that defendants recover five per cent to be added to the defendants' costs and inserted in the record by the clerk with the other costs of suit. SUPREME COURT. 5 How. 395-Contra, 9 How. 465. CALKINS agt. BRAND AND WILLIAMS. MASON, Justice. This is a motion like the above, and the defendants can not have double costs for the reason stated in my opinion in the other case, but the defendants are to have an allowance of five per cent upon $519-54, to be added to their costs of defending and inserted on the record; and as the defendants have moved for double costs, to which they are not entitled, and have put the plaintiff to the expense of opposing this motion, I am inclined not to give the party any costs on these motions. Livingston and Mitchell agt. Cleaveland. SUPREME COURT. LIVINGSTON AND MITCHELL agt. CLEAVELAND. The Code (290) requires that "the execution shall be returnable within sixty days after its receipt by the officer," &c. Upon the proper return of the execution, therefore, by the sheriff at any time within the 60 days proceedings supplementary to execution (in the nature of a creditor's bill) may be commenced. Prior to the act of 1840 executions were made returnable on a particular day in term. And by the act of 1840 they were made returnable sixty days from the receipt thereof by the sheriff. A creditor's bill could not properly be filed in such cases until after the return day. Chenango General Term, January 1851. MASON, SHANKLAND and MONSON, Justices. SEDGWICK & OUTWATER, for Plaintiffs. DILLAYE & THORN, for Defendant. By the Court, MASON, P. J.-The case comes before the court on an appeal from an order appointing a receiver on proceedings supplementary to the execution. The only objection to the order is that the execution was returned, and these proceedings instituted before the expiration of the sixty days, and consequently that these proceedings were prematurely commenced, and that the order based upon them is erroneous. The counsel for the appellant insists that these proceedings supplementary to the execution are but a substitute for the creditor's bill under the old practice, and that the decisions of the late chancellor in the cases of Cassidy vs. Meacham (3 Paige R. 311), and Williams vs Hogeboom (8 Paige, 469), are decisive of the case under consideration. These cases hold that a creditor's bill could not be filed until after the return day of the execution issued upon the complainant's judgment, although the execution should be actually returned before that time. The 41st section 2 R. S. 174, which allowed the filing of a creditor's bill whenever an execution against the property of the defendant shall have been issued on the judgment at law and shall have been returned unsatisfied, in whole or in part, is substantially the same as section 292 of Livingston and Mitchell agt. Cleaveland the present Code, which allows these proceedings supplementary to the execution whenever an execution against the property of the judgment debtor shall be returned unsatisfied, in whole or in part. The filing of the creditor's bill under the former statute, required that the plaintiff should exhaust his legal remedies before he should be allowed to come into a court of equity and invoke the aid of the court in divesting the debtor of his property by a summary appointment of a receiver; and the present Code of procedure, as prescribed by this 292d section, contemplates that the judgment creditor shall in like manner exhaust his remedy at law by the issuing and return of an execution upon his judgment at law before he shall be allowed to institute the severe and summary proceedings allowed by chapter 2 title 9 of the Code. And the chancellor held, in the cases above referred to, that this relief in equity by creditor's bill should not be allowed until there was a fair exhaustion of the legal remedies upon the judgment, and that such legal remedies were not exhausted when the execution was returned before the return day thereof. This rule is undoubtedly applicable to the proceedings supplementary to the execution under the 292d section of the Code, and the above cases decided by the late chancellor, are controlling authority under the present practice allowed by the 292d section of the Code, unless the change of our statute in relation to the form and return of the execution shall be deemed to have rendered those decisions inapplicable to the present practice. It should be borne in mind that prior to the statute of 1840 (Laws of 1840, p. 334, § 24), writs of execution were only made returnable in term time, and were required to be made returnable on a particular day, and by the said 24th section of the statute. of 1840 such writs were required to be made returnable sixty days from the receipt thereof by the sheriff. It will be seen, therefore, that by the very frame of the execution under these former statutes, that the writ contained no mandate to the sheriff to return it in the one case till the actual return day thereof, and in the other until the end of sixty days from the receipt thereof by the sheriff; and that consequently the sheriff may well be said |