Page:Federal Reporter, 1st Series, Volume 9.djvu/559

544 FEDKBAIi BEFOBTEB. �had the right to set aside the judgment and recover the property, (Glenny v. Langdon, 98 U. S. 20 ; Trimhle v. Woodhead, 102 U. S. 647; Moyer y.Dewey, 103 U. S. 301,) and that the plaintiflfs in the creditors' bill had not acquired any lien which could then prevail against the assignee. Johnson v. Eogers, 15 N. B. E. 1. �In the case last cited, Wallace, J., reviewed the adjudications in this state as to the effect of a creditors' bill in secnring a lien where no receiver has been appointed, and pointed out that by the law of this state such a lien does not prevail as against purchasers or other execution creditors levying upon goods or chattels, but is effective upon choses in action or equitable interests not subject to levy and sale on execution; and he held that an assignee in bankruptcy, representing the general creditors, is entitled to stand in the situa- tion of an execution creditor as respects goods and chattels subject to execution. �That the plaintiffs in the creditors' bill enjoined in this case ob- tained by the commencement of that suit an equitable lien as against the defendants themselves, upon the goods or their proceeds, is plain. Laurence v. Bank of the liepublic, 35 N. Y. 320, 323; Lansing v. Easton, 7 Paige, 364; Storm v. Waddell, 2 Sandf . Ch. 494 ; Sedgwick v. Menck, 1 N. B. E. 675. A portion of the proceeds, also, were doubt- less equitable assets, not subject to levy and sale on execution against Charles Pitts, and have been all the while subject to the equitable lien acquired by filing the creditors' bill against him and Henry. Law- rence Y. Bank of the Repuhlic, 35 N.Y. 321. The right of the assignee in bankruptcy to recover so much as remained of the property originally transferred to Henry Pitts could only be enforced by a suit instituted for that purpose under section 5046 or section 5129. In re Pitts, 8 Fed. Ebp. 263; Cragin v. Thompson, 12 N. B. E. 81; Sparhawk v. Drexel, Id. 450; In re Biesenthal, 15 N. B. E. 228. His right to main- tain such a suit is subject, however, to the two years' limitation pre- scribed by section 5057, {Bailey v. Glover, 21 Wall. 342,) which is to be computed from the time of discovering the fraud. The assignee in this case had knowledge of all the matters alleged in the creditors' bill in 1878, and has been notified of the proceedings on these motions since the firet motion in November, 1878, now three years ago. He has not instituted any suit on behalf of the creditors to recover the property, and, though having notice of this motion, states no inten- tion or desire of doing so, and his time for doing so has expired. So long as his right to maintain such an action existed, and so long as the equitable lien of the plaintifs in the creditors' suit upon the goods ��� �