Majority
p. 673Anonymous. At Chambers, August 2.
Headnote
An order for the examination of a judgment debtor, under § 292 of the Code, mil not be made unless it appears that an execution against Ms property has been issued and returned unsatisfied, since the Code went into effect.
p. 674
An application was made for the usual order for the examination of a defendant as a judgment debtor, but it appeared from the affidavit of the applicant not only that the rendition of the judgment, but that the return of an execution unsatisfied, was before the Code went into effect.
The counsel for the applicant relied upon the case of Jones v. Lawlin (1 Sand. S. C. R. 922).
Although it was held in Jones v. Lawlin, that the provisions of § 292 of the Code are applicable to prior judgments, it appears from the head-note of the Report that an execution had been issued and returned unsatisfied after the Code went into effect; and but for this circumstance, I cannot believe that an order for the examination of the debtor would have been made. I am clearly of opinion that the provisions of the Code, from the language used, are applicable only to executions thereafter to be issued and returned, and consequently must refuse- to make the order applied for.
(Oakley, 0. J., concurred.)