#### Gouverneur and another *v.*Warner.

The plaintiff in a judgment, who has filed a creditor’s bill, and obtained a receiver of the defendant’s property, will not be permitted to levy an alias execution on personal property covered by such receivership.

A levy made thereon, will be set aside on the defendant’s application, unless the plaintiff will waive his receivership and dismiss his creditor’s suit.

Dec. 30, 1848.

Appeal from an order made by one of the justices at chambers. The affidavits disclosed these facts: On the 29th of No*625vember, 1848, the plaintiff issued an alias fieri facias on the judgment in this cause, to the sheriff of the county of Putnam, by virtue of which the sheriff levied on certain household furniture, and other chattels, formerly belonging to the defendant, but which he had some years before transferred to F. L. Warner, in whose possession they were.

In March, 1848, on the return of a previous execution wholly unsatisfied, the plaintiffs exhibited a creditors bill against the defendant in the supreme court in equity, which was put at issue by answer and replication in June. The usual order for a receiver was made in the suit, and a receiver was appointed, to whom the defendant, on the 13th of April, under the direction of the referee, executed the customary assignment of all his property and effects of every description. The plaintiffs proceeded in the creditor’s suit, and examined the defendant at great length, before the referee, touching this personal property, and also in like manner examined F. L. Warner as a witness on the same subject. After this, the reference was no farther proceeded in, and the creditor’s suit had been suspended for some time before the alias execution was issued.

Upon this state of facts, the defendant moved to set aside the execution, or for other relief. The justice at chambers made an order that the levy be set aside and the execution stayed as to the furniture and chattels in question, unless the plaintiffs should elect to dismiss their bill in equity and vacate their receivership of the property. The plaintiffs appealed-

*Jona.*Miller, for the plaintiffs.

*H. H. Warner,*for the defendant.

By the Court.

As we understand the effect of the plaintiffs proceedings in equity, the assignment to the receiver vested in him all the title and interest which the defendant had in this personal property, when the bill was filed. If the defendant had any interest, upon which an execution could then be levied, it was transmitted to the receiver. The alleged fraudulent transfer of the goods, though valid against the defendant, could not *626prevent his creditors from proceeding to vacate it in the name of any person to whom his title was passed by operation of law. An assignee in bankruptcy or insolvency, as well as a receiver in a creditor’s suit, may proceed to set aside the fraudulent transfer. In this case, the plaintiffs had two remedies under their equity proceeding, to reach the property in question. They could amend their bill and make F. L. Warner a party to the suit; or they could institute a distinct suit in the name of the receiver, to set aside the alleged fraudulent conveyance.

We think they were not at liberty to go back, and treat the property as being still vested in the defendant, and resort anew to-an execution at law, pending their suit in equity.

The authorities to which the plaintiff’s counsel referred, are not applicable, for the reason that in them there had been no-transfer to a receiver, and the plaintiffs, by their suit in equity, had acquired no more than an equitable lien.

It was objected to the motion, that the defendant, has no interest in the matter, and that a motion in his behalf ought not to be entertained. In this the plaintiffs are clearly mistaken. A motion to set aside an execution for irregularity, can only be made by the defendant. The court will not hear a stranger on such an application. And there may be very good reasons why in this case, the defendant should not have two distinct remedies pursued against him for the same matter, at the same time.

The defendant insists that the order at chambers should have been absolute, for the reason that the plaintiffs had already made their election to proceed in equity. We need not review the order on this point, as the defendant has not appealed.

Appeal dismissed.