Sackett agt. Newton.

up collaterally, the person alleging jurisdiction has got to prove it, where it depends on the officer and his proceedings solely. But where jurisdiction is claimed by the acts of the officer, and his proceedings are partly by the acts of the person proceeded against, then the rule is changed, and the party must show want of jurisdiction, and that his apparent concurrence was coerced by an illegal assumption of power. (Brodhead agt. M'Connell, 3 Barb. 184.)

E. F. WARREN, for respondent-1st. The affidavit on which the order that the defendant appear was granted, was sufficient. It contained evidence tending to show that defendant had property which he refused to apply, and the officer had a right to be satisfied with it. (Code, § 292; 7 How. Pr. R., 416.)

2d. A receiver may be appointed where it appears that the property of the debtor is the subject of a levy. (4 Sand. 649; Code § 292.)

3d. The defendant waived his right to object to the regularity of the previous proceedings, by appearing and submitting to an examination. (8 How. Pr. R., 315; 5 id. 16.)

By the court-GREENE, Justice. By the 2d clause of § 292 of the Code, it is provided that after the issuing of an execu tion against property, and upon proof by affidavit, to the satisfaction of the court or judge, that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, the court or judge may, by an order, require the judgment debtor to appear and answer concerning the same, and that such proceedings may thereupon be had, for the application of the debtors property towards the satisfaction of the judgment, as are provided upon the return of an execution unsatisfied.

This provision was, undoubtedly, suggested by the 4th sub. of the 4th section of the non-imprisonment act, which provided that where satisfactory evidence, by affidavit, should be adduced to the officer mentioned in the act, that the defendant had property or rights in action which he fraudulently

Sackett agt. Newton.

concealed, or that he had rights in action, &c., which he unjustly refused to apply to the payment of any judgment that might have been rendered against him; the officer should issue his warrant for the arrest of the defendant, as provided in the 3d section of that act. Proceedings could not be instituted under the act, predicated upon any of the facts specified in the 2d sub. of § 4, until the recovery of judgment; but they might be taken after the rendition of judgment, before the issuing of execution, and while the execution was stayed by the statute. It is apparent from these provisions, that the proceeding by warrant, provided for by that act, was designed as a substitute for an execution in cases where that remedy was inapplicable. The first clause of sub. 2, of § 4, relates to property and things in action that have been fraudulently concealed, and thus put beyond the reach of an execution; while the 2d clause relates to rights in action, money, &c., which are not subject to levy and sale on execution. Mr. Justice CowEN, in the case of Berthelon agt. Betts, (4 Hill, 577, 579,) said "We have always understood the provisions in question as no more than a statute execution against choses in action, and other effects not tangible by the ordinary fi. fa.

It is entirely clear from the provisions of this statute, and from all the decisions upon, and practice under it, that it was never intended by the legislature, nor construed by the courts, to sanction this summary proceeding for the purpose of reaching tangible property in the open and notorious possession of the debtor and within the reach of an ordinary execution, where the debtor had manifested no design to remove or dispose of it with a fraudulent intent.

In my opinion, the provisions of the 192d section of the Code, when fairly construed, are not susceptible of any such intolerable abuse. The first clause of the section provides for the issuing of the order, requiring the debtor to appear and answer concerning his property, after an execution has been returned unsatisfied-thus plainly implying, that in ordinary cases the creditor must exhaust his remedy by execution, before resorting to this proceeding. The second clause provides that

Sackett agt. Newton.

the order may be issued after the execution has been issued, and upon proof that the debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment. If the word property in this section is to have the comprehensive construction indicated by the general definition of that term, contained in the 463d and 464th sections, unqualified by the other provisions of the section, then it may be asked why, in a case where there is no proof that the debtor has property, should the creditor be compelled to wait until the return of his execution, before he can compel the debtor to answer, when, in another case, the creditor is permitted to take the same proceeding upon proving that the debtor has property which may be reached and appropriated by means of his execution? Why, in the latter case, is he required to issue an execution at all, if property of every species, as well as that which is tangible and subject to levy and sale on execution, and in the open possession of the debtor, as that which in its nature cannot be so reached, or is so concealed that it cannot be discovered, cannot be reached by execution? I think the answer is plainly suggested by the various provisions of the Code on this subject. The proceeding authorized by the 2d clause of 2 was given for the purpose of reaching such property only as was of such nature, or so circumstanced, that it could not be reached by execution. As to all other property, the section which requires the previous issuing of an execution, contemplates that the creditor shall be confined to that remedy until the execution shall be returned, pursuant to the provisions of the section. The creditor must first issue his execution in all cases. That is the remedy provided by the Code, as well as by the pre-existing law. If he fails to reach the debtor's property by that means, he may, upon the return of the execution unsatisfied, have an order requiring the debtor to submit to an examination for the purpose of discovering his property. If, after the execution has been issued and before it is returned, the creditor can prove, to the satisfaction of the judge, that the debtor has property not subject to levy, or which is so kept by the debtor that it cannot be clearly identified, and with ordinary diligence reached by exe

Sackett agt. Newton.

cution, the creditor may have the same order, upon which the same proceedings may be had as are given on the return of the execution. But where the debtor is shown to be in the undisputed possession of property subject to levy on execution, under circumstances affording unequivocal evidence of title, the creditor is bound to levy upon such property instead of resorting to this proceeding. A construction of the statute which would authorize this proceeding under such circumstances, and thus summarily and unnecessarily substitute a receiver, in the place of the sheriff, to take charge of the debtor's property, would be productive only of injustice and oppression.

In this case, the respondent's affidavit, that the execution had not been returned; and, although the time within which the sheriff was authorized to levy under it, had expired, that fact did not authorize this proceeding. It was the duty of the creditor to issue a new execution. I am, therefore, of the opinion, that the facts disclosed in the affidavit upon which the proceeding was founded, did not make a case within the statute-that the officer acquired no jurisdiction over the subject matter; and, as none could be conferred by the appearance of the appellant, even if he had made no objections to the proceeding, the orders appealed from should be reversed with

costs.

The People agt. Lewis Baker and others.

NEW-YORK OYER AND TERMINER.

THE PEOPLE agt. LEWIS BAKER and others.

On a motion to admit to bail on an indictment for murder, upon testimony taken before the coroner and the grand jury, further proof, by affidavit or oral testimony, on the part of the defendants, tending to show their innocence of the offence charged, as affecting the question of bail, cannot be allowed. Previous to the Revised Statutes, it was well settled that in capital offences the defendant might be bailed before indictment, but not afterwards: the reasons for the distinction were, that before the indictment the court had access to the depositions and testimony on which the charge was based; and in the other case could not, because the grand jury were required to keep the testimony before it secret; and the court, having no means of inferring otherwise, would, therefore, always imply that the grand jury had not indicted on insufficient proof, and so refuse bail.

But it is provided by the Revised Statutes, (2 R. S. 724, § 30,) that "every grand jury may appoint one of their number to be a clerk thereof; to preserve minutes of their proceedings, and of the evidence given before them," &c. So that the court may now be possessed of all the evidence taken before the coroner and grand jury. The question of bail in capital cases, therefore, is now open to consideration to the same extent after as before indictment. It seems to be settled by authority, that the court will in all cases, capital or otherwise, exercise its discretionary powers, and admit to bail when, from the testimony under which the accused is held, it is indifferent whether he is innocent or guilty,-in other words, when, upon an examination of the testimony, the presumption of guilt is not strong; and it is particularly called upon to bail in all cases when the presumptions are decidedly in favor of the innocence of the accused.

The testimony given before a grand jury, which is always ex parte, should be sufficient in degree to convict, or show the defendant guilty, if unexplained; upon less testimony than this the grand jury should never find a bill. In this case, held, that, as the proof stood, it would not justify the conviction of the defendants, Hyler, Lynn, or Van Pelt. They should be admitted to bail. And as regarded the defendants, Irving and Morrissey, held, that, upon the testimony, there was not only none upon which a conviction could be had, but that the proof of it did not warrant the finding of the indictment. They should be admitted to bail.

April Term, 1855.-INDICTMENT for murder. Motion to admit to bail.