Small v. Sproat

Shaw, C. J. The plaintiffs brought their action against Charles Richmond and summoned the present defendants as his trustees. After judgment against the principal, default of the trustees, and execution returned unsatisfied, this writ of scire facias is brought to charge the trustees ; and the question arises on their answer. They answer, that on the 12th of April 1837, Messrs. Crocker & Richmond made an assignment to W. A. F. Sproat, F. Baylies and G. A. Crocker, pursuant to St. 1836, c. 238. By force of this statute, the assignment was good and effectual against any attachment or execution to be made or levied after the assignment, notwithstanding the creditors had not accepted by becoming parties to it before the attachment. Shattuck v. Freeman, 1 Met. 10. In this respect the statute changed the law which was before in force on this subject. The property stood bound in the hands of the assignees, not only for the debts of all those who had become parties, but of all those creditors who might become parties before a final dividend. But the plaintiffs contend, that although the law may now be so, yet that if there be any surplus in the hands of the trustees, after retaining enough to pay all the debts of the assignor, that surplus is a sum due to the assignor and may be reached by a trustee process. It may be well doubted whether on such an attachment the assignee shall be obliged to state his entire account in a court of law, on each trustee suit, and at the instance of each attaching creditor, in order to show whether there is any surplus, instead [305] of rendering an account, once for all, as trustee, in a court of equity. But it is not necessary to decide this question, and the court have not placed the right of the trustees to be discharged on that ground, because it appears by their answers that there was no surplus in their hands. The assignees did not proceed to convert the property into money and make dividends to the creditors, in the usual form ; but they state, that by mutual consent of all parties interested, they did appropriate the property, from time to time, to the compromise, satisfaction and discharge of the debts of the assignors. The assignees, the debtors and the creditors, were the only persons who had the beneficial interest in the assigned property, and the power of disposal over it. Whether this would be a good execution of the trust, to all purposes, or not, we can have no doubt that it was perfectly good as against all those who assented. It proves that the property has been appropriated to the payment of the debts ; and what is more material to the present case, it proves that there was no surplus of property in the hands of the assignees, beyond what was necessary to satisfy the debts of the creditors claiming under the assignment, and therefore that there was no surplus, after satisfying the purposes of the assignment, to be reached by the trustee process Defendants discharged.