Emerson v. Wallace

The assignment was made on the 27th day of April, 1846.

On the 1st day of May, 1846, the trustee purchased of several of the creditors their demands against the defendant.

On the 31st day of August, 1846, the trustee process was served upon him.

Suppose the assignment was entirely invalid. It would then be as if no assignment had existed, and the rights of the parties would then be as they would have been without it. Then there would he nothing to hinder the trustee from purchasing any demands against the defendants, and in a bona fide purchase, at whatever discount, his rights would be protected.

Against any property in his hands he might offset such debts, and could not be charged as trustee. No subsequent attachment, by virtue of such process, could relate back and modify Ms rights. It would be the simple case of one who had property of the defendant in his hands, but who had claims against the defendant to a larger amount. In this case he has used his own money for the purchase, and not that of the defendant.

If, on the other hand, the assignment be valid, whatever dealings he may have had in this matter, and what*569ever may be tbe rights of tbe creditors wbo assented to tbe assignment, be will not be liable to tbe plaintiff. The assignment being valid, and be having assented to take upon bina tbe execution of tbe trust, be will have come under obligations to tbe pai-ties to tbe assignment, for it is with them that be has contracted.

Tbe plaintiff did not object to bis buying these claims.

Whether, by purchasing these claims, be can obtain a right to have dividends on them, as against the assenting creditors, is a question into which we need not inquire in this case.

Trustee discharged.