From tlie bill, plea and exhibits in this case, it appears that one Philip A. Doyle, being then in insolvent circumstances, on the thirtieth day of December, A. D, 1863, executed his deed of assignment to one James Doyle, conveying all his estate and effects in trust, for the benefit of all his creditors, with certain preferences in favor of the plaintiffs in this bill. All the goods, chattels and effects so conveyed, were, by the said James Doyle, converted into money for the purposes of the trust. After such conversion, the said James Doyle was removed as.trustee, and the respondent Peekham was appointed in his stead. The moneys realized from the sale and conversion of the property by said Doyle, were paid to and received by the respondent as assignee, as the trust fund, to be by him administered. Of the moneys in the hands of said Doyle, and paid over to the respondent, was the sum of about fifteen hundred dollars, the proceeds of the sale of certain personal property, namely, liquors, obtained by Philip A. Doyle of William Hall fraudulently, so that the property therein never vested in said Philip A. Doyle, or passed from the said Hall, but which were nevertheless sold by the said James Doyle, as part of the trust property.

After the receipt of the money by the respondent Peekham, William Hall commenced an action against him for the same, as money had and received to his, the said Hall’s, use, and as the proceeds of his, the said Hall’s, own goods.

Upon trial of the case, judgment was given, that the said Hall recover and have the moneys claimed, and that the proceeds of said goods were the proper moneys of the said Hall, received by said Peekham to his use, and not to the uses of the assignment, and, in effect, that the money was not, nor were the goods before conversion, the property of Philip A. Doyle, the assignor.

The respondent is now liable to, and proposes to pay the money so received in satisfaction of, the judgment against him, and to pay the plaintiffs, who are preferred creditors of the assignor, the residue of the fund received by him from the former assignee, or the net balance remaining in his hands.

*25 The prayer of the plaintiffs’ bill is, however, that the respondent may be restrained from paying the money to Hall in pursuance oí the judgment and in satisfaction of it, a,nd compelled to distribute the same among the plaintiffs as such preferred creditors.

It is quite apparent, that if the prayer of the bill is granted, namely, to distribute this sum among the plaintiffs, the respondent stands in no enviable position, and that the plaintiffs will have succeeded in obtaining from the hands of the respondent assignee, what they could not do from any rightful estate of their debtor, legal or equitable.

The judgment is against Peckham, the assignee, personally, and must be paid by him personally, and at all events he cannot defend himself now by saying or setting up what is suggested in the argument for the plaintiffs, that this judgment is but the ascertainment of the debt of Hall against the assignor Doyle. The suit is not against Doyle, and could not be, he never having had the money of the plaintiff Hall. He was not indebted to Hall. The suit is only maintainable because the transaction by which the goods were obtained passed no property in the goods, and therefore created no debt against Doyle, to be ascertained by judgment.

Both because no suit was brought against Doyle, and because there was in fact no sale, and no debt against Doyle, Hall could not be entitled to any dividend out of the trust funds, either by preference or otherwise.

The judgment of the court in the case of Hall against Peck-ham, defended faithfully by the assignee and aided in that defence by the plaintiffs, has established that the amount recovered by. Hall never was the money or property of Doyle, the assignor, nor was it the proceeds of any property of his, and so never constituted any part of the trust funds.

The trust property is therefore by so much less, which becomes applicable, under the trust of the assignment, to the payment of the claim of the plaintiffs.

Bill dismissed with costs.