¶1While concurring in the conclusion of my associate, I do not assent to the first proposition contained in the opinion in this cause.
¶2In the case of the Receiver of Adams & Co. v. Roman et ah, decided at the January Term, 1856, the assignees declined to pay the funds of Adams & Co., in their hands, to the receiver, Naglee, on the ground that the funds had been attached by the creditors of that firm. This Court said : “ It is no answer to this to say that the fund has been attached by the garnishments of the creditors of Adams & Co.. It was not the subject of attachment. It was already in the hands of a receiver before any attachment issued. The receiver is the officer of the Court, and the fund in his hands is in Court in the custody of the law, and can only be disposed of by the order and direction of the Court; nor (as was contended at the bar) is its disposition subject to be affected by any action of the immediate parties to the suit.”
¶3The bill was filed for the purpose of seizing the assets of the partnership, and having them distributed to the creditors. This purpose, a Court of Chancery will carry out, without regard to *205any attempt on the part of the partners to evade or defeat it. It was the duty of the Court, as soon as this bill was filed and the property was under its control, to require all the creditors of Adams & Co. to appear, within a given time, before a master, to be appointed for the purpose, and have their claims audited under such rules and regulations as to notice, as would secure a fair hearing and a just account. Upon the report of the master, and its confirmation, the fund would then be distributed pro rata among the creditors whose claims were allowed.
¶4I see now no reason to doubt the correctness of the principle then announced. A fund in the possession of the receiver can only be distributed by order of the Court in whose custody it is, and no party can by adverse procedure acquire a lien on such funds.
¶5In this ease, however, it does not appear that the judgment of Adams & Co. v. Hastings, was ever reduced to possession by the receiver, and the receiver testifies that he exercised no control over it. Conceding then, that the order appointing a receiver operated as an assignment of the property of the insolvent firm, the assignment would not, under our statute operate to transfer any property which was not within a reasonable time, reduced to actual possession by the assignee.
¶6It is my misfortune to be compelled to differ
¶7from my Brothers in this case, and I shall briefly state the ground of my disagreement.
¶8The act concerning proceedings supplementary to execution, provides for two cases:
¶91. Where the debtor has property which he refuses to apply to the satisfaction of the judgment, in which case he is required to be summoned, and the Court or Judge is authorized to direct the appropriation of such property; and—
¶102. Where any person or corporation has property of or is indebted to the judgment-debtor; in which case the person holding said property, or the debtors of the judgment-debtor is required to be summoned.
¶11The affidavit of the parties sets forth, that Adams & Co. have property which they unjustly refuse to apply to the satisfaction of the affiant’s judgment.
¶12I am of opinion that a judgment is not property within the meaning of the act; it certainly was not at common law; it was but the evidence of indebtedness. Again, the act concerning proceedings supplementary to execution gives a new remedy, and by all rules of construction being in derogation of the common law, must be strictly pursued. It is no answer or argument that Hastings the debtor of the judgment-debtor does not complain in this cause. The symmetry of the act should be preserved, and in some future case it will be found necessary to a *206full adjustment of the rights of parties to adhere to the strict letter of the statute.