viously levied upon by the sheriff, it was held that he was bound to account to the latter for the proceeds. In re North American Gutta Percha Company, 17 How., 549; 9 Abb., 79.

The title so derived does not extend, however, beyond moneys due to or property owned by the defendant at the time. No right passes to future acquired property or earnings, or future payments under an executory contract. Vide McCormick vs. Kehoe, 7 L. O., 184; Campbell vs. Foster, 16 How., 275; Potter vs. Low, 16 How., 549; Caton vs. Southwell, 13 Barb., 335; Scott vs. Nevins, 6 Duer, 672; Campbell vs. Genet, 2 Hilt., 290.

Insurance moneys of property exempt from execution, destroyed by fire, after the receiver's appointment, stand in the same position of future acquired property, and cannot be reached, except through the medium of a fresh proceeding. Sands vs. Roberts, 8 Abb., 343.

Nor will it be proper to order the delivery to such receiver, of property to which the title is disputed. He should be left to his action. Rodman vs. Henry, 17 N. Y., 482; Stewart vs. Foster, 1 Hilt., 505.

In Bunn vs. Fonda, 2 C. R., 70, it was held that a non-resident judgment-debtor may, under these provisions, be compelled to convey property, but not to deliver household furniture, in use by him out of the state, and that such a party is entitled to the same benefit of exemption, as to property out of the state, as if he were a resident, and the property within the state.

A receiver will not be allowed to sell an inalienable life interest of the judgment-debtor, in the income of a trust-fund, provided for his maintenance. All that he can claim is any unappropriated surplus of such income, if any, in the hands of the trustees, and not necessary for such maintenance. Nor can any future surplus be claimed by him in that capacity. Such surplus can only be reached, by means of a creditors' bill, making the trustees parties, and by an order in the nature of a sequestration, in anticipation of such future surplus, beyond what may be necessary as above, from time to time. Scott vs. Nevins, 6 Duer, 672. See likewise Genet vs. Foster, 18 How., 50.

In Tenbroeck vs. Sloo, however, 13 How., 28; 2 Abb., 234, the receiver was declared entitled to claim from the debtor, an assignment of the surplus of an absolute annuity, not already disposed of by him.

And, in the same case, a cause of action in equity, seeking the payment of ascertained damages for breach of a contract, was declared to be property, and to pass to the receiver; directions being given, on the one hand, to prevent inconvenience, in the prosecution of such suit in the name of the defendant; and the latter being enjoined, on the other, from compromising or compounding it, or from making any other disposition, to the prejudice of the plaintiff's claim

Where the owner of goods sold by an auctioneer, had voluntarily allowed the latter to mix up the sale moneys with his own funds in a deposit in bank, it was held that he had thereby lost any special lien, and stood only in the position of a general creditor, and that a receiver, on supplementary proceedings against such auctioneer, was entitled to the whole sum deposited. Levy vs. Cavanagh, 2 Bosw., 100.

A receiver, if he sells mortgaged property, to which the debtor has only a temporary right of possession, without the order of the court, sells, it has been held by the Superior Court, at his peril. He can only sell that property, for such interest as the debtor possesses, and is bound to do so in one lot, so that it can be followed in the hands of the purchaser. Manning vs. Monaghan, 1 Bosw., 459. The reversal, at 23 N. Y., 539, goes upon the bare ground of mistrial.

The duties and powers of the receiver, in relation to such property as may come to his hands, are fully defined by rule 92, above cited in extenso. Vide supra, section 290.

His possession of such property, when appointed, is the possession of the court, and cannot properly be interfered with, by means of a collateral proceeding. Van Rensselaer vs. Emery, 9 How., 135.

The measure of the rights of a receiver over the choses in action of the debtor, and the extent to which the court will support his acts, within the proper exercise of his discretion, are broadly laid down in Drought vs. Curtiss, 8 How., 56.

(a.) ACTION BY RECEIVER.

Whenever a third party, in possession of property of the judgmentdebtor, or indebted to him, claims an adverse interest, or denies the debt, an action by the receiver will be necessary, and is the only admissible course. Section 299.

A direction, or leave to commence such action, should be applied for at the time of examination, or, at all events, before its commencement. The same course had better be taken, with reference to any other suit, which the receiver may find it expedient to bring, in order to the due discharge of his trust (see above, book V., chapter V.); although, under rule 92, he has general powers of suing, either in his own name, or in that of the debtor. By taking this course, he will avoid any question, as to his liability for costs of the proceedings, if unsuccessful. But, if he prosecutes in good faith, he will not be liable, his position being that of a person authorized by statute to sue. Code, section 317. Vide St. John vs. Denison, 9 How., 343.

The application is, of course, ex parte, sufficient reasons for the proceeding being shown, either on the face of the examination taken, or upon separate affidavit.

And, at the same time, or at the close of the examination, an order should be taken, enjoining any disposition of the property in question, until the commencement of, and pending such proceeding. If aggrieved by such order, the defendant may apply for a modification or discharge. of it, on giving security to the judge's satisfaction. Section 299.

The bringing of an action will be necessary, in all cases falling directly within the provision of the section, and proper in all others, whenever there exists a substantial controversy with respect to the existence, or ownership of property, claimed to be reached by these proceedings, or the rights of the parties or claimants are conflicting. Vide Corning vs. Tooker, 5 How., 16. See also People vs. King, 9 How., 97; Rodman vs. Henry, 17 N. Y., 482; Stewart vs. Foster, 1 Hilt., 505.

The receiver may maintain an action, in the nature of a creditor's bill, to set aside a fraudulent assignment, or to remove any similar obstruction, in the way of the realization of property covered by his receivership. He stands in the position of the creditors, whose interests he represents, and is entitled to the same remedies. Porter vs. Williams, 5 Seld., 142; 12 How., 107; Bostwick vs. Beizer, 10 Abb., 197; Seymour vs. Wilson, 15 How., 355 (357); reversing same case, 16 Barb., 294; and overruling Пayner vs. Fowler, 16 Barb., 300.

And such a proceeding is his only remedy, to set aside a completed sale, impeached by him on the ground of fraud. He cannot justify a forcible seizure of the property. Brown vs. Gilmore, 16 How., 527.

§ 301. Costs of Proceedings.

Under section 301, the judge may allow to the judgment-creditor, or to any party examined, whether a party to the action or not, witnesses' fees and disbursements, and a fixed sum, in addition, not exceeding $30, as costs.

Ordinary witnesses' fees and disbursements are payable at once, to any party examined; but the allowance for costs cannot be claimed, until the proceeding has been brought to a close, and terminated in favor of the party applying for it. Davis vs. Turner, 4 How., 190. But such allowance cannot be asked for, it seems, as against a mere witness, not a party, or against whom no relief is sought, under section. 294. Same case.

The plaintiff, on the proceeding being so terminated by the discovery of property, may be allowed the fees he has been liable to pay to his witnesses, and the referee, if any, his disbursements for exemplification of records, serving subpoenas, and the like, and a fixed sum besides, not exceeding $30, as his costs, such sum being probably intended to

cover the whole expense paid to his attorney in conducting the proceedings. Same case. And the allowance so made, may be ordered to be paid by the receiver, out of the fund: Webber vs. Hobbie, 13 How., 382; the same case deciding that the order need not, necessarily, be made at the time of the appointment of the receiver, but may be deferred till the final winding up of the proceedings.

In Ross vs. Chussman, 3 Sandf., 670; 1 C. R. (N. S.), 91, the costs of a contempt were added to those of the supplementary proceedings, and the defendant ordered to stand committed, until payment of the whole was made.

The thirty dollars allowance includes all counsel fees, or, if allowed in that form, instead of as costs eo nomine, it will stand. See Hulsover vs. Wiles, 11 How., 446.

If no property be discovered on the examination, the plaintiff may be ordered to pay costs to the judgment-debtor, unless he can show some reason for having required him to submit to the examination. Anony mous, 1 C. R. (N. S.), 113; Hulsover vs. Wiles, 11 How., 446. But, the latter cannot claim costs, on a dismissal of the proceedings, nor unless he has been actually examined. Engle vs. Bonneau, 2 Sandf., 679; 3 C. R., 205.

In Anonymous, 11 Abb., 108, it was decided that, where a third party has been examined without success, he will be entitled to a full allowance. Also that, where he has always been willing to pay over the fund, and has only sought to protect himself against a double claim, he should be allowed reasonable costs out of the fund, as in cases of interpleader. See also Hulsover vs. Wiles, 11 How., 446; Davis vs. Turner, 4 How., 190, supra.

§ 302. Enforcement of Orders.

The subject of process of contempt has been already anticipated in the last chapter, section 287, to which the reader is accordingly referred. And the question of the jurisdiction of the officers before whom these proceedings are maintainable, has been likewise treated in the present, section 291.

The power to punish, being expressly given to the judge before whom the proceedings are pending (see section 302), that power is exercised by him individually, and not as a member of the court. An attachment will, therefore, be valid, though made returnable before him at his own office, or elsewhere out of court. In re Smethurst, 2 Sandf., 724; 3 C. R., 55.

His jurisdiction in the matter, takes rise from the original order. Mere technical irregularities, rendering any portion of the intermediate

proceedings merely voidable, and not void, and not taken advantage of at the time, will not affect the ultimate remedy. Myers vs. Janes, 3 Abb., 301; Kelly vs. McCormick, 2 E. D. Smith, 503.

Nor will the defendant be justified in disobeying a merely erroneous order. But, if such order be null, he will not then be in contempt, as, being void, it cannot be enforceable. Arctic Fire Insurance Company vs. Hicks, 7 Abb., 204.

The remedy by process of contempt, will not be granted, unless the plaintiff makes out a clear case against the defendant. Potter vs. Low, 16 How., 549. Or, for the non-performance of an act, not required in terms by the order. Watson vs. Fitzsimmons, 5 Duer, 629.

If the contempt of the defendant be excusable, the fine, so far as it is intended as a punishment, may be nominal. Arctic Fire Insurance Company vs. Hicks, 7 Abb., 204. But, if the plaintiff have been put to expense for counsel or referee's fees, payment of those expenses may be imposed. See Ross vs. Chussman, 2 Sandf., 670; 1 C. R. (N. S.), 91.

As to the recitals, which may be sufficient in an order for commitment, see Reynolds vs. McElhone, 20 How., 454; The People vs. Kelly, 22 How., 309; 13 Abb., 459.

The form and incidents of such an order, differ in no respect from those on the enforcement of any other order made in the suit. See above, section 287.

But the period of imprisonment is unlimited by the section, and the power may be exercised in the judge's discretion, even though the defendant deny on oath, that he has any property to be affected by the order. In re Pester, 2 C. R., 98.

This case was decided before the amendment of 1851. Under section 302, as it now stands, the defendant has his remedy by means of an application to be discharged, in case of his inability to perform the act, or to endure the imprisonment.

Such application may be made on his behalf, either to the court or judge committing him, or to the court in which the judgment was rendered. It must be upon the usual notice to the plaintiff, the circumstances calling for the interposition of the court must be fully set forth in the moving affidavits, and those affidavits must bring the case indisputably, within one or other of the categories imposed by the section. The plaintiff will, of course, be entitled to resist the motion, and to offer affidavits in disproof of the statements of the moving party, or to show a state of facts under which the imposition of terms will be proper, and also tending to show the nature of those proper to be imposed, which, by the section itself, rest clearly in the discretion of the court or judge.