p. 41Ephraim H. Hudson v. Peter Plets.O. L. Barbour, for complainant; W. L. F. Warren, for defendant.
Headnote
This was an application by the complainant for an attachment against the defendant in a judgment creditors bill for an alleged violation of the usual injunction granted in such cases, and also for refusing to be sworn before the master. The violation of the injunction complained of was the bringing an action of trespass against a third person for a trespass upon lands which belonged to the judgment debtor before the filing of the bill in this cause, and for bringing another suit against the same person for tort in seizing property of the judgment debtor which was exempt from execution. And the refusal of the defendant to be sworn took place under the following circumstances: The complainant’s bill was filed in December 1842, and in January thereafter, the usual order of reference to appoint a receiver and for the defendant to assign and deliver over his property on oath under the dii ection of the master was entered. A receiver was duly appointed, and in February 1843, the defendant made the usual assignment of his property to the receiver under the direction of the master and was examined before the master as to his property, upon oath, as directed by the order of reference ; and the receiver took possession of the property which upon such examination appeared to belong to the defendant, and the same was sold at public auction by the receiver and purchased by the com
p. 42plainant on tlie first of May 1843. In September Í843", the' master who had been superseded in his office by the qualifi - cation of a successor in the preceding April, issued a now1 summons to the defendant to appear before him and bo examined in relation to his property. The defendant attended before the master and declined to be examined as to the matters of the complainant’s bill or as to the property assigned and which had been sold by the receiver. But the master' decided he must be re-sworn as to the matters of the reference generally.
creditor’s suit* cannot be again Salter after6 a * onceciosea ™
The defendant was right in suppos-jn„ that the master had no power or authority to summon him before him and swear him again as to' the matters of the reference< The object of the examination of tire defendant upon the usual order to appoint a receiver, &c., and where the examination is not intended as a substitute for an answer to' the complainant’s bill, is to enable the master to determine and direct what property is to be delivered over to the receiver. After the notes and other dioses in action in this case therefore had been delivered over to the receiver and had been sold by him, the defendant was not bound to answer any question in relation to such notes or other dioses in action, even if the original examination before the master had been adjourned by the master, and had not been dosed. And the defendant having been once sworn generally upon the reference, the master had no right to require him to be sworn a second time. But if a further examination was necessary or proper for any purpose, the complainant’s solicitor should have propounded his questions as upon the original examination, without a new oath. And if the master decided that the questions were proper and had not been fully answered, the court would compel an answer to them, unless upon examination it appeared the decision of the master was wrong.' — ■ The defendant was therefore right in this- case in refusing to be sworn generally a second time.
Again; it is evident in this case that the examination of the defendant under this order of reference had been onco closed; and that the master had no authority under such or
p. 43der to issue a new summons for the purpose of compelling the defendant to attend before him to submit to a new éxamination, without a special order of the court for that purpose. In these references under creditors bills the master is not authorized to keep the reference open interminably, to enable the complainant to harrass the defendant with attendances and re-examinations as often as the complainant thinks proper. But when the defendant is summoned to attend ior the purpose of being examined and delivering over his property the complainant should be compelled to proceed with all reasonable expedition to complete his examination of the defendant, either in answer to the matters of the bill or as to the property which the defendant is required to assign .and deliver over to the receiver. And the master should not adjourn the examination, or reserve the right to the complainant to summon the defendant a second time before the master, without some rea sonable grounds. Where the defendant attends before the master and is examined, if the reference is not adjourned to some specified time, or the right reserved to the complainant to have a further examination within some reasonable time to be prescribed by the master, and upon a further summons, the examination of the defendant will be considered as closed, and the master’s power under the order of reference as spent. After that, if the complainant wishes a further examination or desires directions as to the delivery of property subsequently discovered he must apply to the court, upon proper affidavits and notice to the adverse party, for an order authorizing or directing the same. So much of this application therefore as seeks for an attachment against the defendant for refusing to be sworn before the master in September 1843 must be denied. And as the defendant denies the existence of any property whatever, except that which he had fully disclosed before the master on his former 'examination, and which was delivered to the receiver, so far as it was capable of delivery, there is no ground for making a special order authbrizing a further examination of the defendant.
Orderfor further examination of defendant when necessary.
The mere right of action of the judgment debtor for a
p. 44Pe)’S01}a^ tort> as for-assault and battery, slander, or a malicit ous prosecution, cannot be reached by the complainant in a judgment creditor’s suit; nor will it pass to the receiver under the usual assignment of the defendant in such a suit.
(Benson v.
Flower, Sir W. Jones’ Rep. 215, 1
Deac. Bank. Law 386.) But ^le to an action for an injury to the property of the judgment debtor before the filing of the complainant’s bill, whereby that property to which the creditor was entitled to resort for the payment of his debt is destroyed or diminished in value, appears to be such a thing in action as may properly be reached and applied to the payment of the complainant’s debt, under a creditor’s bill. The bringing a suit for such a tort, however, without showing some injury which the complainant in the creditor’s bill has sustained thereby, is not such a breach of
the injunction as will authorize the granting of an attachment against the judgment debtor, The case would be otherwise if he had recovered a judgment and collected the amount thereof, or had released the right of action for the trespass. The suit against a third person for the tort in taking property which was exempt from execution, does not appear to be a breach of the injunction even if the right of action in such case accrued before the filing of the complainant’s bill, if the right had not been reduced to a mere debt by the recovery of a judgment for the tort previous tq that time. For the exemption of certain necessary articles from execution would be useless if the creditor could seize them on his execution, and when a suit was brought against him or the sheriff for damages could reach such claim and deprive the debtor of it by means of a creditor’s bill. The re-; covery of a judgment for the tort to the defendant’s exempt property, and even the collection of the amount of such judgment, will be no breach of the injunction in this case. The residue of the complainant’s application is therefore denied with costs ; as there has been no breach of the injunction of which the complainant has any right to complain.
byrja(ígmontÉ1°n sonaitortrcannot cro(iTtor^dwíia
ibrS?njuryto°n ty whenftmay’ lie reached.