Mather v. Pratt — 4 U.S. 196

Majority

p. 196

Mather v. Pratt et al.

Syllabus

Assignment for the benefit of creditors.

Where there is an assignment for the benefit of such creditors of the assignors, as shall, -within a certain period, execute a general release to them, a creditor who has not executed the release, cannot maintain an action against the assignees.^[1]

This was an action brought by the plaintiff, as indorsee and holder of several promissory notes, made by Dorey & Bayhir, in favor of Joseph Mussi, against the defendants, to whom Dorey & Bayhir had assigned all their estate, in trust for the payment, pro rata, of such of their creditors, as should, within a certain period, execute a general release ; and the dividend of the non-assenting creditors was to be paid to them. The plaintiff had not executed the release ; and it was objected, that he could not sue the trustees, even for a dividend, in his own name, without performing the condition precedent.

M. Levy, for the plaintiff. Dallas, for the defendant.

The Court were unanimously, and clearly, of this opinion; and the plaintiff suffered a nonsuit.^[1]

(b) (b) After this nonsuit, the plaintiff issued a foreign attachment against Dorey & Bayhir, and attached the dividend in the hands of the defendants, which was, eventually, recovered.