New-York tribune. [volume] (New-York [N.Y.]) 1841-1842, 1841-09-21
III.

| necessarily be construed as yei1a5le only by the
;a-'y aggreved.
These authorities clearly establish tina, the avas
OF the assigned property are not TO De treated rs
the assets OF the deceased debter and dlstroutaoe
as such. They are neither legal nor equitable as
sets. HIS representatives have nothing 10 do Win
MN. Hence the question as TO the right OF a sin-
gle judgement creditor 10 Sic BIZ. on bis own be-
half alone, and get preference for himself even
over elder judgements stands upon the same loot
ing as his right when his debtor Is living. As TO
this, there IS no question Whatever = regards per
,onal property. whether the same was originally
eyiable a, law or not. think the true foundation
OF this rule Is the statute. which authorizes the
payment of the debt demanded by the bill out OF
the property discovered, whether liable originally 10
an execution or not. I'hi'e IS. Corning : Paige
jG.) is leading case upon this point a TO equta-
bic asses which cannot be sold on an execution al
law and in numerous cases mas the same rule been
applied property the subject OF fraudulent as
-ignn.cnt. PUrageis -. Egan & Page GID X :
striking example OF this, where the bill was on be-
halj OF the complainant and al other creditors who
should come in, 81 20 set aside fraudulent sale
of goods; and some other judgement Creditors
lad sigacd stipulation to come in and contribute
to the expenses of the suit. Yet because they had
not taken out execution upon their judgements The
in full He also observed that parties entitled 10
come in mus, kave been entitled to file abil. them
selves and that had they been in the situation TO
avail themselves of the decree. they all would have
been paid according to the priorites OF their re-
spcctive executions liens upSn the property OF
the debtor said to defraud them.
In tho present case il Is the clear result of the
views taken that the Complainant could have filed
the bill on bis own account alone. This he orsi-
naly did, and the clause IN question was invested
in consequence OF suggestion Of the Court, ent-
tied to every respect
The question now is how to dispose Of the record
If it remains unchanged these must &c reference
10 n master to ascertain what other judgements
are in force, and call the creditors before him.
state il also TO be a clear rule that the clause IN
question produces no equality among the creditors
coming in under the decree. and the ComPai-
naut. 1t means, on 5ehalf Of himsey and all Gre
ditors rho sbouId come an according 10 their ie-
gal or equitable prioraties. The cases in which
upon such bill, by simple contract, creditors sPe-
cialty creditors have swept the whole estate, and
the allowance of costs even has been disputed, show
this very clearly.
1t is also determined that where a bill bya single
complaints; ought TO have been flied on behalf OF
class. liberty will be given TO amend even al the
hearing by inserting this clause. Johnson V.
Compton "A Simons, AZ. } BiscOe V. pFar7ad, Aag.
I, 1888. { Daaels Pract. 400
think can allow the Complainant to amend
bv striking oul the cassc. No one 1t Is stated has
yct come in and stipulated contribute to the suit
No right can be acquired by any one under the de-
cree until he does come in. The Complainant has
the entire puwcr Owe, his bill to dismiss it until de-
cree and as this CONTROLS absolute no one can have
been ,eiutcd with the prospect of proftng by this
suit. and have therefore neglected to proceed hrt-
self. Tho Complainant had the right to proceed
against this property at his risk and for his own
benefit as view the case, and it would be hard it
this error should drive him to new BILL or perhaps
cause him to lose the benefit of his perseverance
before any actual right has been vested in another,
by reason OF that error.
Liberty given TO amend, and an account
against the assignee directed.