Barr v. Voorhees

55 N.J. Eq. 561

• Court: New Jersey Court of Chancery
• Decided: March 15, 1897
• Status: Published

Opinion

The opinion of the court was delivered by

Collins, J.

The order appealed from can find no support elsewhere than in those provisions of the Chancery act that authorize proceedings in aid of unsatisfied judgments at law. They are sections 88 to 94, Gen. Stat. p. 889. That statute will not sustain the order.

The direction to appear and make discovery is void, because no place is specified for that purpose as required by section 90. It is argued that the order may be helped by the subpoena ad testificandum, authorized for witnesses under section 92, but we hold otherwise. The express provision as to a defendant excludes any inference, by construction, that he is a witness. There is sound reason for the requirement that the order shall name time and place for the defendant’s appearance. The court, and not the complainant, should decide what is reasonable in that regard. A complainant ought not to have the power arbitrarily to compel the defendant to travel to a distant part of the state. Witnesses may safely be left to ordinary subjection to subpoena.

The prohibition of transfer of property is unwarranted. Such a prohibition under the statute cannot be general, but must be directed to a specific debt or trust pointed out in the bill and proved by oath to exist. Verification on belief is sufficient for an order for discovery, but not for an order forbidding transfer or payment.

Whether ah order simply requiring a defendant’s appearance for discovery is appealable, we do not decide.

The order appealed from must be wholly reversed.

For reversal — The Chief-Justice, Collins, Depue, Dixon, Garrison, Lippincott, Ludlow, Van Syckel, Barkalow, Dayton, Hendrickson, Nixon — 12.

For affirmance — None.