#### Charles Carter, plaintiff, *vs.*Adnrew Clarke, defendant.

1. Proceedings supplementary to execution are a substitute for creditors’s bills, and to some extent, in the nature of those, suits in equity.

2. The judgment creditor, in both modes of proceeding being obliged to exhaust his remedy at law, in order to entitle him to equitable relief, the ultimate decision of the court or judge is in both, *res judicata*upon the facts. Hence, whenever such adjudication has been made, no order for the examination of the debtor should be granted, unless the moving affidavits show that he-has subsequently acquired property; or an-alias execution has been issued and returned *nulla dona;*or new facts, which have come to the knowledge of the appellant.

3. But where, before any such adjudication is made, the proceedings are voluntarily withdrawn from the consideration of the judge, and terminated, *in Untóte,*by the mutual consent and agreement of the parties, they constitute no bar to proceedings under a second order.

(Before Barbour, J. at special term,

November —, 1867.)

Motionn to dismiss supplementary proceedings.

Barbour, J.

The defendant moves, on the return of an order for his examination in proceedings supplementary to execution, that such proceedings be dismissed.

The order was granted upon an affidavit showing the recovery and docketing of a judgment and the return unsatisfied of an execution in 1862, and that the judgment remains unpaid.

*44It appears from the affidavits and papers read upon this motion that the defendant was examined in' proceedings supplementary, in 1864, on an affidavit setting forth all the foregoing facts and no others. The examination, thus taken, was subscribed and duly verified before the judge, and the proceedings were thereupon • adjourned for seven days, but for what ptirpose, does not appear. Subsequently, it was agreed by the parties that the proceedings should be discontinued, although no order to that effect seems to have been made.

Proceedings supplementary to execution were intended as a substitute for creditors’ bills, and must be regarded, to some extent, as in the nature of those suits in equity. As the judgment creditor, in both instances, must have exhausted his remedy at law, in order to entitle him to equitable relief, so, in each, the .ultimate decision of the court or judge must be considered res *judicata*upon the facts; and, it follows that, where such adjudication has been made, no order for the examination of the debtor-can properly be granted, unless the moving affidavit shall state that he has subsequently acquired property, or that an alias execution has been issued and returned *nulla bona,*or that new facts, setting them forth, have come to the knowledge of the applicant.

In this case, however, there was no such adjudication, but, on the contrary, the proceedings under the first order were voluntarily withdrawn from the consideration of the judge, and terminated *in. limine,*by the joint consent and agreement of the parties; and, of course, no bar exists to the proceedings under the second order.

The motion to dismiss the proceedings must be denied, with $10 costs, to abide the ultimate event of the examination.