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N. Y. Supreme Court.-Sheldon and others v. Weeks and others.

Before the Honorable IRA HARRIS, one of the Justices of the Supreme Court of the State of New-York.

[At Special Term, New-York, December, 1848.]

WILSON B. SHELDON and others v. NATHANIEL T. WEEKS and others.

THREE OTHER CAUSES AGAINST SAME DEFENDANTS.

An order should not be made upon a defendant in a creditor's bill to deliver property or money to a receiver unless it appears that the party has the power to obey the order. The failure of the party to show to whom he has paid money, which is proved to have been in his possession several months before the bill was filed, is not sufficient to warrant an order on him to pay the money to the receiver.

The answer of a party examined before a referee has the same effect as an answer to a bill when the oath of the party is required. It is conclusive upon the party examining him until it is disproved.

In the assignment by a debtor under a creditor's bill, it is proper to insert an exception as to furniture exempt by law from execution, even in cases where the debtor has made a sale or assignment of all his furniture, which has been set aside as against creditors.

Where the determination of the issues of fact joined in a cause will not necessarily involve the examination of a long account, a cause cannot be referred under the act of 12th April, 1848.

THE circumstances appear in the opinion of the court.

H. P. Hastings, for plaintiff.

Edward Sandford, for defendants.

By the Court-HARRIS, J.-An order was made in this cause, on the 13th of March last, for the appointment of a receiver of all and singular the property and effects, equitable interests and choses in action which belonged to the defendant Nathaniel T. Weeks, on the 22d day of March, and also of all and singular the household furniture belonging to the defendant, Nathaniel T. Weeks, at the time of the sale thereof mentioned in the defendant's answer, and then in the house No. 26 Second-street, in the city of New-York, and intended to be transferred by the sale thereof, by Nathaniel T. Weeks to Henry A. Weeks. The defendants were also required to execute a proper assignment of the property to the receiver, and deliver the same to him on oath. They were also required to appear before the referee and submit to such examination as he might require.

A receiver having been appointed in pursuance of the order, and the defendants having executed the assignment required and having also been examined before the referee in relation to the property, the referee on the 13th of October, made an order, declaring that, among other articles of property intended to be transferred by Nathaniel T. Weeks to Henry A. Weeks, by virtue of the bill of sale mentioned in the order of 13th of March, were one silver bread basket and one silver pitcher, and that said articles were then in the possession or under the control of Nathaniel T. Weeks or Henry A. Weeks, and therefore directing that they deliver the same to the receiver. The referee in the same order declared, that at the time of the execution of the assign

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N. Y. Supreme Court.-Sheldon and others v. Weeks and others.

ment of the 22d March, 1847, mentioned in the order of the 13th March, 1848, there was in the hands of Nathaniel T. Weeks, the sum of $4,790, which passed under the assignment, but which had not been delivered to the assignees, and he directed that Nathaniel T. Weeks deliver that sum over to the receiver. A motion is now made on behalf of the defendants, for an order that the referee review his decision. After a careful perusal of the mass of evidence taken upon the examination before the referee, I think he has erred in his decision in respect to the silver bread basket and pitcher. The only evidence I have been able to find, even of the existence of such articles, is in the testimony of Mr. Boyce, who testified that in December, 1845, Mrs. Weeks, the wife of Nathaniel T. Weeks, and her son Henry A. Weeks, came to his shop and ordered a bread basket to be made. It was to be delivered at Mrs. Weeks' house, in Second-street. It was made and marked with the initials, "H. A. W.," and delivered on the 31st of January following. The witness also thought he made a pitcher for them a month or two afterwards. He did not know who paid him for the articles. No such articles are contained in the schedule annexed to the bill of sale of the household furniture executed by Nathaniel T. Weeks to Henry A. Weeks. Both Nathaniel T. Weeks and his wife, state that they never had a silver fruit basket in the house, no such question was put to Henry A. Weeks. In a previous examination he had been asked, after stating that he had purchased some silver spoons which had been used in the family, whether he had purchased any other silver ware before the sale, and he replied that he did not remember that he had. The question was general. The bread basket was not mentioned nor had any witness been inquired of in relation to it at that time. No inquiry was made either of Nathaniel or Henry Weeks, or of Mrs. Weeks, in relation to that silver pitcher. Such an article had not been mentioned until Boyce was examined, which was after the examination of the Weeks had closed. As the evidence stood before the referee, it was quite as likely that the articles had been purchased by Henry A. Weeks, as by Nathaniel T. Weeks. From the affidavit of Henry A. Weeks read upon this motion, it appears that if his attention had been called to the articles when he was examined, he would have shown, that he, and not Nathaniel T. Weeks, was the purchaser of the articles. any rate, I think there was not sufficient evidence before the referee to justify him in finding that these articles were intended to be transferred by the bill of sale from Nathaniel T. Weeks to Henry A. Weeks.

I think the referee also erred in directing Nathaniel T. Weeks, to pay over to the receiver $4,790, for money which he had in his hands when he made the assignment on the 22d of March, 1847. It does appear that about the time the assignment was executed, he had a large amount of money. It is not pretended that the money, if indeed he had it at the time of the assignment, was paid over to the assignees; and before Nathaniel T. Weeks can be chargeable with contempt, for not delivering the money to the receiver, it should appear not only

N. Y. Supreme Court.-Sheldon and others v. Weeks and others.

that he had the money when he executed the assignment, but also that he had not placed it beyond his control when the bill in this cause was filed in August following. For if, after the assignment he applied the money to the payment of his debts, he could not be punished for disobeying a subsequent order of this court directing the money to be paid to a receiver. To justify the order made by the referee, he should be satisfied from the evidence before him, that the party had the power to obey such order. If the money passed beyond his control before the bill was filed, it could not be reached by any proceedings against him, if after he was served with the injunction, then the plaintiff's remedy would be by proceedings for a violation of the injunction.

The answer of a party when examined before a referee should have the same effect, as evidence, as an answer to a bill when the oath of the party is required. It should be taken as the truth until it is disproved. Nathaniel T. Weeks was repeatedly inquired of in relation to the disposition he had made of the money he had received about the time he made his assignment, and he states positively that when he made the assignment he had paid it all away to his creditors, and that when the assignment was executed he had no money. I admit that it is much against the truth of this statement that he is unable to give the names of the creditors to whom he paid the money beyond a comparatively small amount. Yet I do not think this circumstance sufficient not only to overcome the positive oath of the party made evidence by the plaintiffs themselves, but also to justify the referee in finding that he not only had the money when the assignment was made, but that it also continued in his possession or under his control when the bill in this cause was filed.

In settling the form of the assignment of the household furniture to be executed by Nathaniel T. Weeks and Henry A. Weeks, pursuant to the order of the 13th of March, the referee directed a clause to be inserted excepting such articles as by law would have been exempt from sale or execution against Nathaniel T. Weeks, and the assignment was executed with such exception. A motion is now made on behalf of the plaintiffs that the referee review his decision in respect to the assignment of the furniture and that the defendants, Nathaniel T. Weeks and Henry A. Weeks be directed to deliver over to the receiver all the household furniture embraced in the bill of sale.

It is true the order, under which the referee acted, does not in terms authorize the exception allowed by the referee. It directs generally an assignment of all the household furniture. In this respect it is like the usual order for the appointment of a receiver in a creditor's suit. The 133d rule provides that the order in such a case shall direct the defendant to assign, &c., all his property, equitable interests, things in action, and effects. So also the statute under which creditor's bills are filed authorizes the court to decree satisfaction of the judgment "out of any personal property, money or things in action belonging to the defendant." (2 R. S. 174, § 39.) No exception is made, either in the statute or the rule of this court, prescribing the form of the order, and yet it has been the uniform practice to insert in the

N. Y. Supreme Court.-Sheldon and others v. Weeks and others. assignment to be executed by the judgment debtor to the receiver an exception of such articles or personal property as are by law exempt from sale on execution. Nor has it, to my knowledge, ever been pretended that the officer executing such an order is not authorized to make such an exception from the effect of the order. It clearly never was the intention of the legislature to exempt from levy and sale the necessary articles of household furniture used in a family, and then upon proceeding under a creditor's bill to take from the family the same articles and place them in the hands of a receiver to be sold for the satisfaction of the same debt.

But it is urged that Nathaniel T. Weeks having executed a bill of sale of the household furniture, including the articles exempt from sale on execution, such sale, if void as against creditors, is yet valid as against him, and therefore he is estopped from claiming the exemption of any articles embraced in such sale. There is some plausibility in this position. But I think the argument is not sound. It is true, that if the conveyance is void in part, it is wholly void. It cannot be avoided as to part of the furniture and held good as to the residue. But when it is avoided it leaves the plaintiffs to enforce their remedies against it in the same manner as if the bill of sale had never been executed. It does not lie with them to say, that because Henry A. Weeks would have the right to take the articles exempt from sale on execution that, therefore, they have, by avoiding the transfer as against themselves, acquired the same right. They cannot ask to be placed in a better position in respect to the property than they would have been had no bill of sale been executed. I think, therefore, the referee decided correctly in excepting from the property to be delivered to the receiver such articles of household furniture as are by law exempt from levy and sale on execution.

The plaintiffs also move for a reference of these causes under the provisions of the fourth section of the act to facilitate the determination of suits before the first of July, on the ground that the determination of the issues of fact between the parties will involve the exanination of a long account. I should be inclined to grant this motion if I could do so consistently with the view I have of the question at issue. between the parties. But I do not think the determination of those questions will involve the examination of a long account. The only issues of fact, as I understand them, relate to the validity of the several conveyances executed by Nathaniel T. Weeks. If the plaintiffs should obtain a decree declaring those conveyances, or either of them, void, it would be a matter of course to direct in the decree that such accounts be taken as should be rendered necessary by the decision. On the other hand, if the plaintiff's fail to obtain such a decree, I do not perceive that it will be necessary to take any account whatI feel compelled, therefore, to deny this motion for a reference. An order must be entered upon these motions in conformity with the views expressed in this opinion.

ever.

N. Y. Supreme Court.-Stephens et al ads. Browning and another.

Before Mr. Justice HURLBUT.

STEPHENS et al ads. BROWNING and another.

An execution may be issued against personal property alone.

If issued against both real and personal property in a county in which the judgment has not been docketed, the writ may be amended by striking out the clause as to real estate.

J. Neilson, for defendants, moved to set aside the execution in this cause on affidavits showing that it had been issued to the sheriff of Oswego county, directing that the money be made out of the defendant's personal property, and in default thereof, out of the real estate which the defendants owned on the blank day of October, 1848, and further showing that the judgment had not been docketed in Oswego county.

C. Ellis read affidavits showing that the judgment had been recovered in New-York, and a transcript sent by mail to the Oswego county clerk. Mr. Ellis insisted that the writ was merely against personal property, and that the direction to take lands owned on the blank day of October amounted to nothing.

HURLBUT, J.-Is not this an execution against real estate?

Ellis.-No. The sheriff is to take land owned on the blank day of a certain month. There was no such day, and the sheriff could not act upon the direction, as he could find no such real estate.

Neilson. He is to seize the real estate owned by the defendant on the blank day of October. The execution was in the sheriff's hands on the last day of that month, and it would be his duty to make the money out of property owned on that day.

HURLBUT, J.-I think this was an execution against real estate, and was irregular, no transcript having been filed.

Ellis, asked leave to amend by striking out the clause as to the real estate, leaving the execution against personal property only.

Neilson insisted that an execution can now be issued only in the manner and form provided by the code. That by 238 of the Code, executions are modified in conformity to the provisions of that title. That by § 241, three kinds of executions are authorized, one of which is an execution against the property of a judgment debtor; and by sub. 1, of § 244, it is provided, that if the writ be issued. against the property of the debtor, it shall direct the sheriff to satisfy the judgment out of the personal property, and if sufficient cannot be

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