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Porter agt. Williams and Clark.

that, even though the assignment from Williams to Clark should be declared void, the plaintiff has acquired no right to the property, because no assignment has been made to him by the judgment debtor. But I do not understand that an assignment to the receiver is necessary to pass the title of the judgment debtor. Under the former practice the filing of a creditor's bill, and the service of process, created a lien upon equitable assets, but not upon property liable to execution. The commencement of a suit to reach equitable assets had the same effect in creating a lien, as a levy upon personal property by virtue of an execution. Notwithstanding such bill, another creditor might issue execution, and take the property of the debtor subject to levy. This might be done until an order had been made for the appointment of a receiver. From that time, the property was deemed to be in the custody of the court, and could not be taken in execution. When under such an order a receiver had been appointed, and had perfected his appointment, by giving the requisite security, he became, by virtue of his office, legally entitled to the possession of the debtors property. It is true, that it was usual to require the judgment debtor to execute an assignment, but it was never held that such an assignment was necessary to divest his title. It never was supposed that, because the judgment debtor had absconded, or was otherwise beyond the reach of process, so that an assignment could not be enforced, the creditor was without remedy. On the contrary, the receiver acquired his right to take the property from the order for his appointment, and not from the assignment (2 Barb. Ch. Pr. 168-9). An order for the appointment of a receiver is an equitable sequestration (Albany City Bank vs. Schermerhorn, 9 Paige, 377). Neither the order for his appointment, nor even an assignment to the receiver pursuant to such order, would divest the debtor's title to his real estate (Chautauque County Bank vs. White, 6 Barb. 589). The receiver became entitled to the rents and income, but the title could only be divested by sale upon execution.

The Code is silent as to the time when the judgment creditor shall be deemed to have acquired a lien upon his debtors equitable

Porter agt. Williams and Clark

effects; but I think the order for his examination, made under the 292d section, should be construed to give the creditor the same lien which he acquired under the former practice, by the commencement of a suit by creditor's bill. So, too, the order that the debtor's property should be applied towards the satisfaction of the creditor's judgment, made pursuant to the 297th section, and the order appointing a receiver pursuant to the 298th section, have the effect of themselves, and without an assignment by the debtor, to divest his title, and to vest it in the receiver. The order under the 297th section places the property under the control of the court, and the order under the next section creates an officer to take charge of it (see Monell's Pr. 364). If this be so, it follows that the attempt by the judgment debtor to give validity to the assignment of the 5th of January by the instrument executed on the 30th of March, was ineffectual, as the debtor could do nothing to divest the lien which his creditor had acquired by obtaining an order for his examination on the 28th of March.

But as there is another suit pending between the same parties, which differs from this only in the fact that the order for the examination of the debtor was made after the 30th of March, it may be well to consider here the effect of the instrument executed on that day, upon such a case. This question is only important upon the supposition that the assignment of the 5th of January contains provisions that would render it void as against creditors. Assuming that this is so, is there any thing in the instrument of the 30th of March which can give validity to that assignment? I think not. Had the assignment reserved to the judgment debtor a specific benefit, as the payment of a sum of money out of the proceeds of the assigned estate, I will not say that a release of such benefit, before proceedings should be instituted to avoid the assignment, might save it from being declared void. But even in such a case, the question would not be free from difficulty. Here the assignment prescribes certain terms and conditions by which the assignee is to be governed in the execution of his trust. Among these is one which, it is alleged, renders the assignment

Porter agt. Williams and Clark,

void as against creditors. The validity of the assignment, as against assignor, can not be questioned. Finding the assignment is likely to be questioned, the assignor subsequently executes another instrument by which he assumes to vary the terms of the assignment. Had he the power to do so? Could he revoke the authority to sell on credit, any more than he could the authority to sell at all? I think not. He had divested himself of all power to control the disposition of the property assigned when he executed and delivered the assignment. Whether that assignment is valid or not, as against creditors, must depend upon its own provisions, and not upon any thing done subsequently by the assignor, or even by the assignee.

The remaining question in the case has been judicially determined against the defendants in Griffin vs. Barney (2 Comst. 365). In that case, an insolvent debtor had conveyed all his property to trustees for the benefit of certain creditors.

The trustees were authorized to sell the property assigned“ at public or private sale, for cash or upon credit,&c. This was held to be an unanswerable objection to the assignment. A trustee has no right to sell property assigned to him for the benefit of creditors upon credit, and if the debtor undertakes to confer upon him this power, the conveyance is void. The debtor may give a preference among his creditors, but he can only do it by an unconditional devotion of his property to the immediate payment of his debts. If the assignment contain any other terms or conditions, or if it confers any other power or authority upon the trustee, it is void.

The plaintiff is therefore entitled to a judgment declaring the assignment void as against him, with directions for taking an account substantially the same as in Wakeman vs. Grover (4 Paige, 43). The judgment may also provide for the payment of the plaintiff's costs out of the funds in the hands of the assignee.

5 How 446-CRITICISED, 10 Hun, 438, 440.

The People ex rel. Williams agt. Hulburt.

SUPREME COURT.

The People ex rel. Williams agt. HULBURT, County Judge of

Cayuga County.

In proceedings supplementary to execution under $292, of the Code, a county

judge has no authority or jurisdiction to issue an order, for the defendant to answer, gc, until after an execution has been issued against his property. And this fact, and all others upon which jurisdiction rests, must be shown

affirmatively; they are not to be deduced by inference or presumption. Where the creditor claims the application of a demand or debt due to the debtor

from a third person, and such demand or debt is denied, the judge can not proceed and try such disputed question of fact; he is only authorized to issue an order forbidding the transfer or other disposition of the claim, until a suf

ficient opportunity is given to the receiver to commence an action ( 299). A receiver may be appointed in such case, without any reference to the return

of the execution. The judge has no authority to order au assignment from the debtor to the re

ceiver. Nor is an assignment necessary, as the title and authority for such purposes to rights and property of this description vests in the receiver iminediately upon his appointment. (See Porter agt. Williams and Clark ante page 441.) In relation to real estate, an assignment is necessary to transfer the title to the receiver. And it seems that the Supreme Court has power,

without any statutory provision, to order such an assignment. A deinand of the kind mentioned in this case, can not be levied upon and sold

nnder an execution against the debtor. A judge has no power to adjourn these proceedings from time to time, without the consent of the party against whom the proceeding is had.

Seventh Judicial District, General Term, June 1851. Present, Welles, Taylor and JOHNSON, Justices. The facts will sufficiently appear in the opinion of the court.

WARREN T. WORDEN, for Relator.

J. PORTER, for Respondent. By the Court, Johnson, Justice.—This was a proceeding supplementary to the execution upon a judgment in favor of Friend Humphrey and Robert Thompson, against the relator, before the county judge of Cayuga county, under $ 292 of the Code,

The affidavit upon which the judge issued his order set out, among other things, that Alonzo G. Beardsley, as attorney for the plaintiffs, on the 27th of May 1850, issued to the sheriff of

The People ex rel. Williams agt. Hulburt.

Cayuga county an execution upon the said judgment, which was delivered to the sheriff on the 28th day of said month of May. It further stated that the defendant in the judgment was then a resident of said county, and that the sheriff called upon him and exhibited the execution, and that the “defendant informed the said sheriff in substance that he had nothing upon which he could levy the execution.”

It is objected on the part of the relator that enough does not appear upon the face of the affidavits to give the county judge jurisdiction to issue the order.

No authority is given to the party to apply for this order, or to the judge to issue it until after an execution has been issued against the property of the defendant.

Three kinds of executions are provided for by the Code. One against the property of the debtor, another against his person, and a third for the delivery of the possession of real or personal property

The affidavits presented to the judge do not show what kind of an execution was issued upon this judgment.

If we were at liberty to indulge in presumptions in such a case, it might perhaps be inferred from what took place between the sheriff and the defendant in the execution, when the latter was called upon,

and the execution exhibited, that it was an execution against his property.

But this will not do where the jurisdiction of an inferior officer to act in the first instance is drawn in question.

In all such cases the facts upon which jurisdiction rests must be shown affirmatively, and are not to be deduced by inference or presumption.

Nothing is to be presumed in favor of the jurisdiction of inferior officers and tribunals. This is too well settled, in this state at least, to require illustration or the citation of authorities in its support.

The affidavits here do not even disclose the nature of the claim on which the judgment was founded. But if they did we would not even presume that the party issued the proper execution.

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