Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-09-27
SUPREME COURT.
FULL TEXT OF DECISIONS FILED.

SUPREME COUhl.
FULL TEXT OF DECISIONS FILED.
Witliant J. Stein, Respondent. Us. William A
Passzaore and John ". Fassneore, dPpet-
!dntS.
OPINION.
It is settled law in this State that party
other than the payee named in a promissory
note who puts his name on the back of the in
strument before it has legal existence by de-
livery for the purpose of giving it credit with
the payee becomes thereby a joint maker of
the note and liable as such. Pierce VS.. Irvine
ct al, Mimi, 367. McComb, Simpson Co.
vs.. Thompson, Mimi. 139. Mancuet Hall ct
Va. Bartlett & Kimball, II Mimi,
40. The complaint in this case
alleges s'that on the 4th day of February, 1874,
the defendant, VIM. A. Passmore, made and
and figures following, to-wit: Saltwater,
MIMI, February 4, lS74.-One dav after date,
for value received, l promise to pay W..
Stein or order the sum of five hundred and
ifty-six 70-l00 dollars with interest at 10 per
cent per annum from date. William A. Pass
more. That before the same accepted by
the plaintiff, the payer therein named, and on
or about the 18th day of March. 1874, the said
defendant, John W. Passmore, for the purpose
OF making said note good and giving the same
credit, signed the said note maker thereof
by then and there writing his name on the back
| thereof, with the date in words and figures
follows: viz: March 18th, 1874, j. w. Passmore,
and then and there delivered the same
| to plaintiff, the said payee," etc. To
this complaint the defendant, j. w. Passmore,
demurred on the ground that the facts therein
stated did not constitute cause Of action as
against him. The particular grounds which
were urged upon the argument are that the al
| legation that the note was made and executed
by the defendant, VIM. j. Passmore, at the
time it bore date, imports delivery of the
note to the payee at that time, and the de-
PENDANT, john W., did not endorse the note till
some time thereafter. the case is not brought
within the doctrine of the cases above cited.
The question presented for determination
therefore, is one of pleading.
The averment as to the making and
ton of the note by VIM. J. Passmore is quail
fed by the allegations coupled
payee. plaintiff, the said defendant, John W.
Passmore, endorsed the in the manner
stated maker and for the purpose of making
it good and giving it credit, and that there
upon the delivered to the plaintiff
Constituting these allegations together the rea-
sonable reference and conclusion therefrom is
that the payee never in fact received held
the note as owner prior to the alleged indorses
ment and its delivery to him thereafter Prior
to his the note had no legal inception
istence as valid and binding contract, for
this could only occur upon its delivery in fact
to the payee a the lawful owner When de-
livered it became completed contract
from that time. According to its terms
and with reference to its date to which the
parties thereto must look for the purpose OF
ascertaining their respective rights and obliga-
tions under it. Powell VS.. Waters. Cow, 6S7,
7O5; see also Brewster VS.. McCardell, s Wend;
, Samson VS.. Thornton g. Nit, 275.
The demurrer was rightfully oyerruled, and
the order appealed from is affirmed.
CORNELL, j.
! Franklin f. Flint, Respondent, as. Isaac W.
3 Webb, appellant.
OPINION.
The proceedings authorized by title "a, chap
ter 66, general statutes, in favor of Judgment
creditor after the issuance and return of All
, execution unsatished in whole or in part, were
intended to furnish a speedy, inexpensive and
adequate remedy for discovering and reaching
all equitable interests of the debtor, not liable
to seizure and sale execution, and also all
! property SO liable which an officer holding
3 such process has been unable to find; and to
compe. the application of the same towards
! the satisfaction of the judgment
+ They not only perform the office of a credit
or's bill, but have somewhat enlarged scope
- and purpose.
nenTy VS. UlDSOn, III DOE o3l. Inc rlSnu TO
institute the proceedings is given by Sec. 299
of this title, and upon compliance with the
conditions therein stated this right becomes alb
9 solute (Kay vsclens ct al., $ MINI. 270)
By the provisions of this section judgment
. creditor is entitled as a matter of right to an
: order requiring his debtor to appear and make
p disclosure concerning his property whenever it
y appears that an execution against the property
of such debtor has been issued to the sheriff of
% the county where the debtor resides and that
%Ine In Il ia
10 whole or in part. These facts alone are suf-
= fcient to sustain the jurisdiction to issue the
:. order for disclosure and to take such subse-
= quent proceedings the statute allows and az
!, may become necessary upon the disclosure. 1t
"a is unnecessary to prove IN addition to these
,e facts that any personal demand was ever made
81 upon the debtor to pay the Juusment or to turn
~ out property upon the execution. FentOn vs..
~ Fogg "a, How. Pr. 499. Flint, the sheriff in
+: the execution and return of such process, haa
-, done his duty, Is to be presumed, and hence /
return of ''nula bona" is itself evidence that the
Ut officer has MADE all reasonable search and III
IA quiry after the debtors property necessary
or under the circumstances to justify his return
~ Ii, however, through the wrongful procure
ment of the plaintiff in the execution, tic
sheriff improperly returns it unsatisted, where
there is sufficient property upon which the
I'd officer ought to have levied to satisfy the debt
n the defendant should apply directly to the
court on motion to set aside the return and to
vacate the order and proceedings had thereon
on these grounds. So long as the return il
er suffered to remain of record and unimpeached
the jurisdiction dependent thereon to institute
:. and prosecute supplementary proceedings in
a. ~ the manner prescribed by ttttutc
80 cannot be affected by any inquiries into the
" contract Of the sheriff in executing the writ OF
Al into the existence of any property which he
oe might and ought to have taken by virtue of The
execution. but did not. No question of this
m character can be raised after the commenee
tt ment Of the proceedings and upon the discos
ure OF the defendant on his examination under
the order. Stovers ct al. VS.. Kelsey ct al, .
.a Page 41S. Fenton VS.. Fogg, supra.
~, Such disclosure is not as appellants counsel
~ supposes and claims in the nature of credit
or or bill, The facts testified to by the
e- defendant on his examination be treated like
1g the averments contained in bill of that char
en- acter It's sole purpose is discovery of thu
IT, debtors property to the end that it may so fa
Ia it is not exempt from execution. be ectec
~ to the payment of his debt to the judgment
creditor, and its relevancy must be determined
~ by reference to that object. If the answers Of
at the debtor on his examination relate to othel
O. matters not pertinent to the purposes of thu
ed terial and Of no effect.
IN In case any property is discovered which
a. ought to be applied towards the satisfaction O
.. the Judgment it is within the power Of til
~ court to compel such application either by al
~ order, making the application directly, o.
through the appointment of receiver with tn
al usual powers belonging to such an officer
Id Whether the one or the other of these remedie
b. or both shall be pursued in any given case is
o. matter resting in the sound discretion of tn
~ court and dependent somewhat upon the pc
~ cullar circumstances of such case. That re
10 ceiver may in the discretion of the court be an
us pointed Immediately mon GRANTING tho ord a