Driggs a. Williams.

obtained an order for the examination of the judgment-debtor in supplementary proceedings, and delivered it to the sheriff for service on the same day. The order was served on the judgment-debtor on June 8th.

John Sessions, for the motion.-I. The order ought to be set aside as upon a judgment paid subsequent to the issuing of the order, and simultaneously with its service. (Code, § 92; 2 Rev. Stat., 301, § 47.)

II. This is in no sense a proceeding to revive the judgment, but merely to enforce its execution. It is not the commencement of an action within any of the provisions of law, and precludes the judgment-debtor from the exercise of a constitutional right to take issue upon the validity of the judgment and a trial by jury of that issue.

William S. Sears, opposed.-The present proceeding is a substitute for the creditor's bill, and if the creditor's bill had been filed on the 6th and subpoena issued on that day and in good faith put in the hands of an officer to be served, the judgment could not have been barred by the statute. (Code, $99.)

CLERKE, J.-It has been generally, and I think correctly, held that an order for the examination of a judgment-debtor is not a mere process like the execution to enforce satisfaction of the judgment. It is not based upon the judgment alone but on a presentation of new facts which the plaintiff must prove to entitle him to the relief he seeks. It is, in short, in all respects, a substitute for a creditor's bill, and is, in all its essential features, equivalent to a new suit.

If, then, the institution of a new suit (a creditor's bill), would stop the operation of the statute presuming payment of a judg ment at the expiration of twenty years, this proceeding, by a parity of reasoning, produces the same effect. The order in this case was issued and served before the expiration of that period, and, consequently, the presumption of payment cannot be entertained. The defendant must submit to an examination. The plaintiff's affidavits undoubtedly contain impertinent matter which must be expunged. Indeed, as it is not necessary to consider the question for which the respective affidavits were

Security Fire Insurance Company a. Martin.

presented, both parties are at liberty to withdraw them; otherwise the objectionable matter in plaintiff's affidavits must be expunged.

Motion denied.

SECURITY FIRE INSURANCE COMPANY a. MARTIN. Supreme Court, First District; At Chambers, Jan., 1863. FORECLOSURE.-REFERENCE TO COMPUTE MODE OF TAKING PROOFS -FORM OF REPORT.

A referee cannot receive as proof of a fact, which the order of reference directs him to decide, an affidavit sworn to before a commissioner. The witness must be sworn before the referee.

It is the duty of a referee in foreclosure, appointed, after failure to answer, to take the usual proofs and to ascertain the amount due, to attach to his report an abstract of the documentary evidence before him.

Motion for judgment in foreclosure.

This was an action brought for the foreclosure of a mortgage. After failure to answer, a referee was appointed to take the usual proofs and compute the amount due. On the coming in of his report, plaintiffs applied for judgment of foreclosure and sale.

Barney, Butler & Parsons, for the plaintiffs.

BARNARD, J.-The referee received the affidavit on the computation, sworn to before a commissioner of deeds. This was not legal. The party must be sworn before the referee.

The referee must, also, attach to his report an abstract of the documentary evidence.

Report sent back to the same referee to supply the proof.

DIGEST

OF

ALL POINTS OF PRACTICE

EMBRACED IN

THE STANDARD NEW YORK REPORTS,

Issued during the period covered by this Volume:

Viz.-24 NEW YORK; 37 BARBOUR; 7 BOSWORTH; 15 ABBOTTS' PR. R., and 24 HOWARD PR. R.; and in the LAWS OF 1863.

ABATEMENT AND REVIVAL.

1. Supplementary proceedings under the provisions of the Code of Procedure, taken before a county judge, and proceedings therein to punish for a contempt by a fine for the benefit of the party, do not abate upon the expiration of his term of office, but may be continued before his successor. If such proceedings are considered as a part of the orderly progression of the action itself, as they may properly be regarded, the death, or expiration of the term of office, of the officer before whom they are conducted, ought not to affect the proceedings. If, however, they are regarded as special proceedings, a liberal construction of the provision of 2 Rev. Stat., 284, § 51,-that such proceedings may be continued, in case of the death, &c., of an officer, by his successor in office, or by certain other officers, &c.,—would apply it to such a case; for the expiration of the term of office may be deemed a removal from office, or a disability, within the meaning of that section. Supreme Ct., 1862, Holstein a. Rice, Ante, 307.

2. That provision of the Revised Statutes is intended of all those proceedings which cannot, with propriety, be classed under ordinary proceedings in an action. It is not confined to what are defined by the Code as special proceedings. Ib.

VOL. XV.-31

ACTION.

ACCOUNTING.

EXECUTORS AND ADMINISTRATORS; GUARDIAN AND WARD; JOINT

LIABILITY.

ACKNOWLEDGMENT OF DEEDS.

Any vice consul or commercial agent of the United States, resident in a foreign port or country, may take and certify acknowledgments or proof. Former acknowledgments, &c., confirmed. Laws of 1863, 449, ch. 246, §§ 1, 2; and see NOTARIES, infra.

ACTION.

1. An action to obtain a construction of a municipal charter, and declare void an assessment made for the expense of a local improvement, and restrain the municipal officers from enforcing it against the plaintiff's personal property, by levy and sale, cannot be maintained. It is an action of purely equitable nature, and the plaintiff has adequate remedies of a legal nature. Supreme Ct., 1860, Von Beck a. Village of

Rondout, Ante, 48.

2. The holder of a mortgage may maintain an action against a grantor of the mortgaged lands who has assumed its payment; and without foreclosing the mortgage, or joining the mortgagor as co-defendant. Ct. of Appeals, 1861, Burr a. Beers, 24 N. Y., 178.

3. Under the Code no trouble arises as to the form of an action, whether on the case, or directly on contract. If the facts stated in the complaint give a right of action, the plaintiff may recover on that complaint. Supreme Ct., 1861, Scott a. Pilkington, Ante, 280. 4. The statute (1 Rev. Stat., 768, §§ 8-10)-making a promise in writing to accept a bill of exchange an actual acceptance in favor of those who, on the faith of such promise, have drawn or negotiated such bill-does not take away the common-law remedy to which the facts of any particular case may entitle a party. Ib.

5. Such a promise made here, though to be performed in England, is to be governed in its obligations and interpretation by the laws of this State. Ib.

6. Where the complaint prays for the specific performance of a contract to convey lands or for damages, but shows that the defendant is incapable of conveying, and the parties go to trial, the court, under the Code, is not to dismiss the complaint, but to retain the case for the purpose of awarding damages. It was a well-settled rule under our former judicial system, that a court of equity, where such relief only is attainable, would not have retained the suit for the purpose of award