Gage v. Smith

Mr. Justice Scholfield delivered the opinion of the Court: We are of opinion the sufficiency of the affidavit to the bill to authorize a preliminary decree for injunction and the appointment of a receiver, is not properly before us. No such use was made of it. Appellant appeared and demurred to the bill, and, upon the demurrer being overruled, he refused to answer further, whereupon the court rendered a decree pro confesso; and the only question is, therefore, whether the allegations of the bill are sufficient to authorize the decree. The forty-ninth section of the Chancery Code (R. L. 1874, p. 203-4,) provides, “ whenever an execution shall have been issued against the property of a defendant, on a judgment at law or in equity, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other person, to compel the discovery of any property or thing in ac■tion, belonging to the defendant, and of any property, money or thing in action due to him, or held in trust for him, and to prevent the transfer of any such property, money or thing in action, or the payment or delivery thereof to the defendant, except when such trust has.- in good faith, been created by, or the fund so held in trust has proceeded from some person other than the defendant himself. The court shall have power to compel such discovery, and to prevent such transfer, payment or delivery, and to decree satisfaction of the sum remaining due on such judgments, out of any personal property, money, or things in action, belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not.” This section was adopted, almost literally, from a prior statute of the State of New York, (Edwards on Receivers, p. 269-70.) under which it was held that the appointment of a receiver follows, as a matter of course, where the equity of the bill is not denied on the hearing; see Edwards on Receivers, supra, Bloodgood v. Clark, 4 Paige, 574, Corning v. White, 2 Paige, 567, Congden v. Lee, 3 Edwards, 304, Bank v. Schemmerhorn, Clarke, 214, Austin v. Figueira, 7 Paige, 56. In the first cited of the above cases the Chancellor said : “ In these cases of creditors’ bills, where the return of the execution unsatisfied jiresupposes that the property of the defendant, if any he has, will be misapplied, and entitles the complainant to an injunction in the first instance, it seems to be almost a matter of course to appoint a receiver, to collect and preserve the property pending the litigation.” We have repeatedly recognized the rule of construction, that in adopting the statute of another State, it is presumed the General Assembly intends that it shall receive the construction given it by the courts of the State from which it is adopted, unless such construction is inconsistent with the spirit and policy of our laws. Campbell v. Quinlin, 3 Scam. 288; Rigg et al. v. Wilton, 13 Ill. 15; Streeter v. The People, 69 id. 598. Ho such inconsistency being apparent in the present instance, the construction adopted by the courts of Hew York should be followed. The existence of the judgment, and the return of the execution unsatisfied, are distinctly and positively alleged in the bill; and it is also alleged, on information and belief, that appellant' has property, etc., of the value of more than $100, exclusive of all prior claims, which appellees have been unable to reach by execution. If this was untrue, appellant should have answered and denied it. It comes with an ill grace from him, after having refused to answer, and disclose the facts with regard to the property which it is claimed he conceals and withholds from the payment of his debts, to say that the quantity and quality of such property is not alleged with sufficient certainty. If it were known precisely what property he has, how concealed and where, it would be unnecessary to call upon him for discovery. The remaining objection urged, is to the form of the decree in directing that the amount of the judgment shall be satisfied by a sale of the property to be discovered, before any property is, in fact, discovered. We do not perceive bow appellant is injured by this. It is very clear, even under the terms of the decree, there can be no satisfaction of the judgment until something is discovered out of which it can be satisfied. And whether the receiver is invested with the power to make sale, subsequent or prior to the discovery, would seem to make no possible difference. He can only execute the power when there is something upon which it can act; and appellant, can not be heard to object, unless the receiver shall attempt to satisfy the decree out of property exempt from seizure for that purpose, or shall unnecessarily sacrifice or waste property liable to be so seized. When, if ever,this shall happen, the law will afford an adequate remedy; but, until it does, it can scarcely be considered important to discuss it. In our opinion there is no error in the record, and the decree will therefore be affirmed. Deoree affirmed.