The Providence news. (Providence [R.I.]) 1891-1906, 1897-12-20

length with the contention OF the counsel
r the complainant that the transaction
whereby the Sears Commercial Company
obtained security FOR its claim against
the National kuDber Company was abso-
lutely void and it Is held that none of the
cases cited can be held to sustain the ar
current.
In regard TO tina second contention that,
evan At the preferences was not absolutely
void, tho ass gnee could not abandon the
right To avoii n preference, that is. that
/ q had no power of election and that an
assignee for the benefit Of creditors is as
the name implies, n trustee for the credi-
tors, bound tn preserve their rights and
ard their interests, and as such trustee
ia has no more power TO surrender or
abandon the rights of his certuisQue
trustent than any other trustee, the Ian
guage OF the opinion is:
As to the correotness Of the general
proposition contained in this argument of
course there can be no question. An
assigned Is in "a general sense a trustee fer
the creditors, and Is bound' to exercise the
utmost diligence and good faith in tho
discharge of tine duties devolved uDon
him and is at all times amenable To the
court for any misconduct in connection
Herewith. But at the same time he has
certain powers conferred upon him by
statute, which powers he alone can sxer-
else; among which Is the power TO avoid
"A preference which power rests wholly
upon tho statute. The statute gives to
the assignee powers superior to those
either of the asslgnor hinsel or of his
creditors, for independently of the statute
preferences are good against either.
That is 20 say, ns argued by the counsel
for the respondent, neither the property
conveyed in preference, nor the right of
action to avoid preference, rs vested by
our statute in Uhe creditors, buj both are
IL. fr.VRa -
given new right OF action which, but
for the assignment would exist in the
creditor
III the assignee should refuse 10 dis
charge his plain duty in regard To setting
aside preference he could either b0 com
PEELED 10 DO so ur else removed from his
trust and another person appointed in his
place: so that creditors are fully pro-
tected In their rights. In other words. as
well said by the complsinant's counsel.
the assignee cannot act ss he pleases, but
Is subject to the control of the court at
the petition or suit OF the creditors.
After dealing with the relations be-
tween assignee and creditors ana debtors
the language Of the opinion is: 1t Is TO
be observed in the case at bar that no
creditors ere before US. complaining OF the
conduct of the assigned ard 10 one IL
quest ioning either his entire good faith or
mis- good judgment in tho management
and disposition of the assigned estate. Ho
is before It's, seeking by this bill To- avoid
a preference which while not alleged io
have been fraudulonty made Inv the AS
signor. yet was within the Inhibition Of
the statute; and ia our previous opinion
we have given the reasons why this can
not now ue done. Upon re-eXamiua-
tion uf the questions submitted aud "a
careful consideration OF the elaborate
briefs of counsel. We see no reason to
modify our former decision, and the pc
titiun for reargunent must therefore bo
denied.