after stating the facts, delivered the opinion of the court.
1. We need -not consider whether Mr. Heitshu and Mr. Bingham are necessary parties, because we are of the opinion that the plaintiff’s remedy, if any, was by a petition to the court in the cause in which the receiver was appointed, and not by an independent suit. The property which he seeks to subject to the payment of his claim is admitted to be in the rightful possession of the receivers. It is, therefore, in custodia legis, and the receiver’s possession, which is, in effect, the possession of the court, cannot be interfered with, either by strangers to the suit, parties thereto or persons claiming under them, or by other courts of co-ordinate jurisdiction. It cannot be seized under execution or attached, nor will the receiver be restrained in the discharge of his duties by the injunction : Smith, Rec. § 7 ; Van Rensselaer v. Emery, 9 How. Prac. 135. The plaintiff is claiming the fund in the hands of the receiver through one of the parties to the suit in which such receiver was appointed, and his right ought to be worked out in that suit. He seeks, in effect, to be subrogated to the rights of Heitshu in the original suit against Hawkins, and an order that the fund in the hands of the receiver be paid to him to apply on his judgment against Heitshu, and not to Heitshu direct; and this question, affecting as it does, the disposition and distribution of the funds in custodia legis, can be passed upon only by the court having the control thereof, and in which the rights of all claimants to the fund can be protected. In such case, manifestly, the proper practice is for a person claiming an equitable interest or title to the fund to file a petition in the original suit, setting up his rights, and have them determined therein : Gluck & B. Rec. 373 ; Smith, Rec. § 415 ; Columbian Book Co. v. De Golyer, 115 Mass. 67 ; Porter v. Kingman, 126 Mass. 141. *9The question here is one involving the distribution of property in the hands of a receiver holding it subject to the orders and directions of the court, and not the right of a party to intervene in a suit between other parties.
2. Nor is the order of the court authorizing this suit conclusive. It was made ex parte, and without notice to interested parties, and does not preclude the court from dismissing the complaint, after a hearing, on the ground that the plaintiff has mistaken his remedy. The decree of the court below is therefore affirmed. Affirmed.
