That the said Samuel Bryan, upon the issuing of the execution last aforesaid, paid or caused to be paid to the said sheriff the whole amount of the said account, that is to say, the aforesaid sum of $191.35, and took the receipt of the said sheriff therefor, which said sum has been applied by the said sheriff upon the aforesaid execution, last aforesaid named.

That, before the payment of such sum to the said sheriff by the said Samuel Bryan, an indemnity in behalf of the said Dutchess County Iron Company had been executed to the said Samuel Bryan, to hold harmless the said Samuel Bryan of and from all liability in consequence of such payment of the said sheriff.

That said Clark, as plaintiff is informed and believes, and so alleges, still claims the right to enforce the payment of the same to him from the said Samuel Bryan, notwithstanding the payment, so made to said sheriff, sa aforesaid; that in case the said payment, so made by said Samuel Bryan to said sheriff, is a good and valid payment, and is properly applied on said execution, then the balance, the amount of said judgment after the payment of said sum of $191.35, after allowing for sheriff's fees, is all that is due on the same, but if such payment is not properly made or applied, then the whole amount of such judgment remains due and unpaid.

Wherefore the plaintiff demands that an order may be made, restraining him, the said Clark, from granting, selling, assigning, disposing of or in any manner interfering or parting with all and every part of the aforesaid property, either real or personal, which shall or has come to his hands, or which he claims under and by virtue of the aforesaid deed of assignment and trust, or the avails, or the rents, issues and profits of the same, which has or shall come to his hand, and also from collecting, selling,

assigning, paying over or in any manner parting with any of the books, accounts, notes, choses in action, equitable interests, money or effects of the said John L. Williams, which have or shall come to the hands of the said Clark, or which he claims under or by virtue of the said deed of assignment, or the avails thereof, and from collecting or in any manner interfering with the same.

The plaintiff further demands that the aforesaid deed of assignment, so executed as aforesaid to the said Richard F. Clark, may be adjudged to be void, and that the same may be set aside, and that the said Richard F. Clark may be adjudged to transfer and deliver to this plaintiff all the property, estate, money, choses in action, accounts, interests and effects of the said John L. Williams, or the avails which have or shall hereafter come to the hands of the said Clark, as such assignee as aforesaid, and that the aforesaid judgment of the Dutchess County Iron Company, and all costs which have subsequently accrued under the same in the appointment of this plaintiff as such receiver, as aforesaid, or otherwise, may be satisfied and paid out of such property, interests and effects, or the avails of the same, and that the defendant Richard F. Clark may be adjudged to account for all the property, money, interests and effects, of every name and nature, which has or shall come into his hands, as aforesaid, or for such further or for such other decree or judgment as to the court shall seem meet and proper; and that the said Richard F. Clark may be enjoined also from proceeding to collect the amount of the aforesaid account, so paid as aforesaid by said Samuel Bryan to said sheriff, in manner as above described, and that the said money, so paid as aforesaid, may be adjudged to have been properly paid and applied upon the said judgment and execution.

E. P. COWLES,

Plaintiff's Attorney.

(No. 35.)

Complaint by a judgment creditor, in the nature of a creditor's bill, against judgment debtor and assignees, to set aside an assignment as fraudulent, and obtain satisfaction of judgment.1

[After setting forth judgment, docketing, issuing of execution, and return unsatisfied, as in No. 34, add,]

That subsequently, on or about the 6th of March, 1848, the said plaintiff filed with the clerk of the city and county of New-York his bill of complaint in the Supreme Court, on the equity side thereof, against the said defendant B., for the purpose of compelling payment and satisfaction of the money due on said judgment, commonly called a creditor's bill, praying, among other things, that an injunction might issue to restrain said defendant from disposing of his property or any part thereof. That an injunction was duly issued, pursuant to the prayer of said bill, a copy of which injunction is annexed to, and forms part of, the complaint.

That, as plaintiff is also informed and believes, said injunction was personally served, with a copy of said bill of complaint, on said defendant B., on the 6th day of March, 1848, and the same has never been vacated or set aside, but continued to remain, and still remains, in full force and effect.

That, as plaintiff is further informed and believes, subsequent to the actual service of said writ of injunction on said B., and in violation and contempt thereof, he, the

The action to set aside an assignment may be sustained by a judgment creditor, without making all the other creditors parties; though it is otherwise in an action to establish and carry out the assignment. (Pleadings 156.)

said B., made, executed and delivered to the defendants, J. M. and J. A., on or about the 17th day of July, 1848, an assignment of all his property, real and personal, a copy of which is annexed to, and forms part of, this complaint; which assignment has been duly recorded, as plaintiff is informed and believes, in the counties of NewYork, Albany and Columbia.

That prior to the execution of said assignment, and at the time of the service of said injunction, as plaintiff is also informed and believes, the said defendant B. had real estate in each of said counties of New-York, Albany and Columbia, and personal property sufficient to satisfy said judgment, or some part thereof.

The plaintiff further alleges, on his information and belief, that, although the defendants, J. M. and J. A., were parties to the execution of said assignment, yet that neither of them have ever undertaken to do any act or thing, individually, under or by virtue of said assignment, for the purpose of executing the trusts thereof, or closing up the estate so assigned to them; but that, on the contrary, during all the time that has elapsed since the execution of said assignment, as plaintiff is also informed and believes, the said B. has had the sole management and control of said property so assigned, either as the pretended agent of said assignees, or otherwise, and has been allowed by the said assignees to manage the same, to receive the rents, issues and profits of said real estate, and to sell and dispose of said personal property, and to convert the proceeds thereof into other personal property, or apply the same, and the rents, and profits of the real estate, wholly and entirely as he thinks proper, either to his own individual use, or to the payment of such debts and creditors as he chooses to prefer, in fraud of said assignment and rights of the other creditors.

That a portion of said real estate consists of a farm of land in the county of Columbia, containing about 200 acres, on which is a large amount of personal property, as plaintiff is informed and believes, consisting of horses, wagons, cattle, stock, crops, farming utensils, &c., of the estimated value of one thousand dollars and upwards, in the possession of a person (whose name is unknown to the plaintiff) pretending to be a tenant of said assignees, but really employed by and under the entire control, direction and management of said B., and that said B. receives from said tenant the rents, issues and profits, or share of the proceeds of said farm, and applies them, as he sees fit, to his own individual use, or to the payment of such debts as he chooses to prefer, whether accruing subsequently or prior to said assignment.

That some portion of the goods, chattels and personal property, now on said farm, were upon said farm and the property of said B. at the time of said assignment; and the said B. had then a tenant in possession.

That ever since said assignment, for a period of four years and upwards, the farming operations of said farm have been regularly carried on by a tenant, or hired man in possession, under the control of said B., in the names of said assignees; the crops and produce of said farm regularly sold; the stock and farming utensils kept up, portions thereof, from time to time, being exchanged or sold, and others purchased; and all under the management and control of said B., as though he were the owner thereof, but under color of said assignment, and in the name of said assignees; and that said assignees have not, nor have either of them, taken any step towards the settlement of said assigned estate, or the sale of said real and personal property, with a view to the execution of the trusts created by such assignment. All of which allegations the plaintiff states upon his information and belief.