This is an action commenced by a judgment-creditor in behalf of himself and other creditors, for the purpose of setting aside a sale or assignment of personal property made to Samuel W. Tallmadge, as one of the firm of Bowers, Tallmadge & Co. The assignment contained a disposition of the personal property and assets belonging to the firms of R. L. Howell & Co., and of Bowers, Isaacs & Co., in which Bowers, Tallmadge & Co., had an interest.
The judgment upon which the action is founded, was recovered in this court, in favor of the plaintiffs, against the defendants J. J. Tallmadge, Ralph L. Howell, and Henry C. Bowers, Hov. 19, .1857, for $443. Execution was issued thereon Hov. 30, 1857, to the sheriff of the county of Hew York, where the defendant Bowers resided—the other defendants residing out of the State. This action was commenced on the 23d day of Hov., 1857, seven days before the issuing of the execution.
The question which attracts attention is, can an action of this kind, addressed to the equitable intervention of the court, to adjudge an assignment of personal property null and void, be maintained without issuing and return of an execution, before the commencement of the action.
It is quite clear, in order to maintain an ordinary creditor’s bill, that an execution must be issued and returned, before the action is commenced. In Brinkerhoff a. Brown (4 J. Ch.), this was definitely settled long before the statute; so that this statute requiring that the execution shall have been returned unsatisfied in whole or in part, was only declaratory of an existing rule.
There is, however, another class of cases in which it is not declared necessary that an execution should be issued and returned. Does this action belong to that class \ The cases *62comprised within this class, are those where the debtor has property, on which the judgment or execution is a specific lien; but the lien, owning to the concealment or fraudulent transfer of the property, or to some other embarrassment, wrongfully created, cannot be made operative so as to satisfy the debt. (McIlwain a. Willis, 9 Wend., 565.)
When the creditor seeks relief under this class of cases, he must show the court that the relief, if granted, will be effectual. Consequently, if he seeks, for instance, to remove an impediment which prevents him from satisfying his debt out of the real property, he must show that he has recovered judgment against his debtor, and this w.ill be alone sufficient. For if the impediment is removed, his judgment is of itself a lien; and he is enabled, by means of the legal rights and remedies to which he has become entitled, to obtain satisfaction of his debt. It is not, therefore, necessary to show in such a case the return of an execution unsatisfied; the execution is his remedy after the court interposes its equitable authority to remove the impediment.*
But the judgment, of itself, gives him no lien on personal property. To the lien it is essential that an execution should be issued to the sheriff of the county where the property is situated, so that he may obtain a specific lien by the actual or constructive levy of the sheriff.
The plaintiffs, in the case before us, fails therefore in bringing himself within either class.
But it is contended that he is entitled to an exception in his favor, because he brings his action for himself and other creditors. The only authority which I have seen in our Hew York Reports, having any serious reference to such a proposition, is in the language of the chancellor in Hendrick a. Robinson (2 Johns. Ch., 297). He says, indeed, “ One creditor may undoubtedly file a bill in many cases on behalf of himself, and all the others.” But there is nothing in his opinion which warrants the idea that a lien by judgment and execution must not be first obtained by the creditor who commences the action. Indeed, it is expressly decided in Parmelee a. Egan (7 Paige, *63610), that not only the creditor who commences the action but the others in whose behalf he seeks relief, must have recovered judgment against the debtor upon which executions must have been duly issued and returned before the filing of the bill. And the principle of this case, which has never been reversed or seriously questioned, is a complete answer to the proposition that, as the property in question was partnership property, alleged to have been fraudulently assigned to the defendant, he will be regarded as a trustee for the creditors at large. M. and A. Egan, in that case, who assigned their goods to the defendant R. Egan, were copartners, and the persons who claimed to come in under the decree were creditors of the firms, and the chancellor directed that none but the complainant, who alone had issued execution on his judgment, was entitled to relief in that action. No doubt, if the other judgment-creditors had duly issued executions, and had them returned unsatisfied before the filing of the bill, they would have been entitled to the same preference, and this is the remark and argument applicable to this question in Cooke a. Smith (3 Sandf. Ch., 333, 338).
The counsel for the plaintiff has referred us to Innes a. Lansing (7 Paige, 585), where the creditor of a limited partnership, in behalf of himself and all other creditors, obtained a decree, although he had not recovered judgment and issued execution. But as Judge Johnson, in Crippen a. Hudson (13 N. Y. (3 Kern.), 161), mentions, the chancellor placed his decision expressly on the ground that the provisions of the statutes,-relative to limited partnerships, require that the property,belonging to such a partnership is to be treated, after insolvency as-a trust-fund for the benefit of all the creditors; so that any Creditor, at any time after the insolvency, was clearly entitled to ftlWxis"biil 3n behalf of himself and all other creditors, in order that a receiver may be appointed to protect the trust fund and to "distribute it among the several creditors who may come in áñd claim their debts under the decree.
The case before us has no resemblance in any respect whatever to Innes a. Lansing. The defendant’s partnership was a general and ordinary one. The plaintiff has commenced this action with the view of having an alleged fraudulent disposition of property declared null and void, and he has done this *64without first obtaining a specific lien on the property, a prerequisite which always has been and still is declared essential.. And when we consider the principle upon which a court of equity refuses to entertain jurisdiction for enforcing the payment of debts, there is reason why a court of equity requires that the legal remedy should be exhausted; because it is proper and expedient, and moreover, because it is a constitutional right belonging to the alleged debtor, that all claims arising from ordinary contracts of indebtedness should be fully established, according to the course and practice of the common law, before any aid should be sought for in the extraordinary and exceptional jurisdiction of courts of equity. I need scarcely add, that this applies to copartnership, as well as to individual debts.
For these reasons, the judgment of the special term should he reversed, and a new trial ordered, costs to abide event.
Judgment affirmed.
As to whether it is not necessary to show execution issued, compare McCullough a. Colby, 5 Bosw., 477 ; 4 Ib., 603.