majority">Willard, Justice.

The Code does not require that a copy of the affidavit should be served on the defendant, with the order forbidding a transfer of the defendant’s property, in these supplementary proceedings. That requirement relates to orders granted in actions, enlarging the time within which any proceeding may be had. (Code, § 405.) Besides, an irregular service of the order, if there was any, was waived by appearance and submitting to an examination.

*316■ II. The order forbidding a transfer of the defendant’s property, issued under § 298 of the Code, though sometimes spoken of as an injunction, is not so called in the Code, and is a different proceeding from injunctions granted in an action, as a provisional remedy under chapter 3, § 218 et seq. In the latter case the injunction must be granted at the commencement of the action, or at any time afterwards before judgment. ( § 220.) The copy of the affidavit, in this latter case, must be served . with the 'injunction. There should no- doubt be some reason-appearing in the affidavit before the judge should forbid a transfer or other disposition of the property of a judgment debtor. The Code is silent as to what facts should be stated, and thus-leaves each case to be disposed of by the sound discretion of the judge. I think enough was stated in this case to justify this temporary order.

III. The main objection is, however, that the judge-had no-right to appoint a referee until after the defendant was brought personally before him. The Supreme Court in this district,, held, in Conway agt. Hitchins, (9 Barb. 378,) under the Code-of 1849, that the judge, could appoint a referee before the defendant was noticed to appear before him. In that case the defendant was ordered to appear before a referee appointed by the judge at the same time he made his order for the defendant to appear. I am not aware that that decision was ever questioned. The Supreme Court in the 8th District, (8 How. Pr. R., 163,) approved of this decision as applicable to the Code of 1849, but think the change of the 292d section in the Code of 1851, has restored the practice under the Code of 1848, and taken indirectly from the judge, the power of appointing a referee until the defendant has been first required to appear before the judge, and has actually so appeared. The learned judge who delivered the opinion of the court, expresses the opinion, that the judge, before appointing a referee must first obtain jurisdiction of the subject matter and of the person of the defendant.

(1.) I think the learned judge errs in saying that the alterations made to the Code of 1849, by the Code of 1851, restores *317the Code of 1848. The 247th section of the Code of 1848 prescribed that the order of the judge should require the judgment debtor to appear and make discovery on oath, concerning his property before such judge, at, & c. The 251st section provided that if the party or witness resided in the county, he should be required to attend before the judge; if in any other county, before a referee, Sec., and in such a case, the examination should be taken by the referee and certified to the judge. Under this Code it is plain that a reference could only be appointed for the examination of the defendant, when he resided in a different county from the judge. The 255th section provided for a reference generally, to report the evidence or the facts; but this was not probably intended to cover the cases embraced in section 251.

The Code of 1849 so altered the first paragraph of section 292, that the judge’s order might require the defendant in the first instance “ to appear and answer concerning his property,” before such judge, or a referee appointed by such judge. The 251st section of the Code of 1848, was so altered, (§ 296,) as to require the party or witness to appear before the judge or referee, whether the party or witness resided in the same county with the judge or not. And it retained the 255th section of the Code of 1848, (as § 300,) with a slight alteration, giving the judge power, at his discretion, to order a reference and requiring the referee to report the evidence or the facts. In our opinion, in Conway agt. Hitchins, (9 Barb. 385,) we treated the alteration in the first paragraph of section 292 as quite superfluous, and intimated that section 300 gave ample power to appoint a referee in that case. That case was decided in September, 1850. In the revision of the Code in 1851, that clause of section 292 was altered and left as in the Code of 1848, but the sections 296 and 300 were left as in the Code of 1849. If it had been the intention of the legislature by the restoration of the first clause of section 292, to the form it was under the Code of 1848, to require the judge to summons the defendant to appear before himself, before a referee could be appointed, they should have altered section 296, and made it *318conform to section 251, under the Code of 1848. By leaving section 296 and 300 as they were in the Code of 1849, they left the power of appointing a referee as it stood under that Code. Those sections are ample to confer the power of appointing the referee at the same time that the order for an examination is made. The learned judge, in Hatch agt. Weyburn, (supra,) did not have his attention drawn to the identity of section 296 in the Codes of 1849 and 1851.

(2.) I think the learned judge also errs in supposing that the judge does not acquire jurisdiction of the subject matter and the person of the defendant until the defendant has appeared before the judge. The judge acquired jurisdiction for all the purposes of the appointment of a referee, by the presentation to him of an affidavit containing the facts required by section 292, to be stated in it, and by the motion of the creditor for the order. Barnes agt. Harris, (4 Com. 875; 1 Saund. 87, 90, n. 1.) The matter which the defendant is required, by section 292, to do, before the judge, viz: “ answer concerning his property,” is precisely the matter proper to be enquired of before a referee, and which the referee under section 296 and 300 can take and certify to the judge. The referee has no control over the person of the defendant. He cannot compel an appearance nor punish him for a disobedience of orders. He must report to the judge who appointed him.

I think there was no error in the judge appointing the referee in the order issued requiring the defendant to be examined, and I shall therefore deny the motion of the defendant.

The motion on the part of the plaintiff to appoint a receiver may be granted. It is not suggested that any other proceeding against the judgment debtor exists, and I shall presume that these two cases are all that are now pending. The examination does not present a case authorizing me to make an order under section 297 requiring any particular articles of property to be applied on the execution. The receiver may, if he shall be so advised, redeem the watch that is spoken of, or may contest the right of the claimant to it. He can also collect such debts as may be justly due to the debtor, but he can not reach *319the debts, if any, that are due to the firm of which he is a member, without a copartnership account is first taken. The plaintiff is also entitled to costs, wdiich I will adjust on being furnished with a bilk

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