Majority
p. 178ELLIOTT vs. JEWETT. Twelfth Judicial District Court, August, 1857.
Headnote
Supplementary Proceedings.la supplementary proceedings' the referee should not order a party to pay the amount of a note over to plaintiff, but should compel the delivery of the-note.
This was a motion to set aside the report of a referee who was appointed on proceedings supplementary to execution,, and who duly examined J. M. Jewett, a brother of the defendant, -and reported that he was indebted to the plaintiff in the amount of ¡a promissory note due his brother, and ordered him to pay the amount .to the plaintiff, but made no report as to where the note was, or into whose hands it could be traced.
J. blarke, for plaintiff.
Thornton, for defendant.
held that the report of the.referee should he set aside for error, as he had no power to order a, maker of a promissory note te.pay'over the proceeds to á plaintiff, when, in point of fact, the note itself may. be in the hands of an innocent party. The proper course' is, forihe referee-in such proceedings to,trace the note itself, and then Older the note to be given over, provided the defendant has an interest in,its result. Any other rule than this would work mischief and. prevent the legitimate end of this provision of our . statute.