p. 491Where the fact to he proved is a matter of record, the complainant after filing his replication may give notice of his intention to produce the record or an exemplification thereof at the hearing, and then obtain his orders to produce witnesses and close the proofs in the usual' manner. ,
Where the right to a debt due from a third person is in litigation, it cannot with safety bepaid to either party after notice; but the debtor will be per. mitted, pending the litigation, to pay it into court to the credit of the cause.
*If it is necessary to enforce the collection of the debt, a receiver must be appointed.
This wasu petition presented by the complainants, stating that the answer of the defendant had been put in, and that they were anxious to bring the cause to a hearing upon bill and answer, but it was necessary for them to prove the issuing and return of an execution of which the defendant in his answer denied all knowledge; and they asked leave to prove it at the hearing without filing a replication. They also asked that the defendant should be compelled to collect a debt due him from a third person, and pay the amount into court, or that they might do it in his name.
R. Sedgwick, for the motion.
W. S. Sears, for the defendant.
The Chancellor :—If the complainants wish to prove any fact in the bill not admitted in the answer, they should file a replication, and give the defendant an opportunity to be heard on the question of the existence of the fact. If it is a mere exemplication of a record which proves itself, it may be sufficient to give notice to the defendant that it is to be used on the hearing, which will enable him to examine witnesses to explain or rebut the effect thereof, if it can be explained. The debtor whose debt will become due pending the litigation cannot safely pay it. to either of the parties after notice. If he is willing to pay the debt, he is at liberty to pay it into court to the credit of the cause, and in that case the court will order his note to be given up.
p. 492But if it is necessary to enforce the collection before a final hearing, a receiver must be appointed.
The complainants are not entitled to the specific relief prayed for in the petition, and I have not sufficient before me to determine whether it is a proper case for a receiver. The petition must therefore be dismissed with costs.