
    IN EQUITY. Oliver K. Wright vs. Samuel Strong et al.
    The positive statement in an affidavit, that no execution upon the judgment, upon which a creditor’s hill is filed, has ever been returned, read in opposition to a motion for a reference to appoint a receiver, will defeat the motion.
    The Plaintiff upon the usual papers moved for a reference to appoint a receiver upon a creditor’s bill. The Defendants in opposition read an affidavit, in which it was stated positively, that no execution upon the judgment upon which the bill was founded had ever been returned.
    J. J. Tyler, for Plff.
    
    Barnes, for Defts.
    
   Harris, Justice.

This motion must be denied. The positive statement in the affidavit of the Defendant that no execution upon the judgment upon which the bill is filed has ever been returned, is a sufficient answer to the motion. If the statement is true—and for the purposes of this motion, it must be taken to be true—the Plaintiff has no right to take the Defendants’ property out of their hands, under proceedings for the appointment of a receiver. But as it is evident that there is some mistake or error on one side or the other in relation to the execution, the Plaintiff must have liberty to renew the motion, and the costs of this motion are to abide the event of the suit. In this way, the party who is eventually shown to be in the right, upon the question, will obtain his costs upon this motion.  