Page:Federal Reporter, 1st Series, Volume 9.djvu/110

 PLATT V. MEAD. 95 �payment of the consideration by Mead, the recovery of judgment, and return of execution unsatisfied. �It is tlrged on the part of the defendants that the assignee could net maintain such an action as the present upon the claim of Little- field alone, or for the benefit of a single crediter, but only such actions as affect the whole body of creditors. Without considering the sound- ness of this objection as a general proposition, it is enough to say that a recovery in this action, even upon Littlefield's claim alone, would enure to the benefit of the whole body of creditors; for it would by so much relieTO the other assets in the assignee's hands from Little- field's share therein, and by so much increase the dividends to the general creditors. And the assignee bas as plain a right to relieve his estate from what -would otherwise be a charge upon it, by com- pelling the payment of a provable debt out of any independent fund which is equitably liable for its payment, as he bas to collect in any claim to assets for a similar amount. The result to the general Creditors is the same, and they are equally and alike interested in bothi The assignee, in prosecuting this suit upon Littlefield's claim alone, would act, not for the sake of the benefit to Littlefield, but for the sake of and for the benefit of the creditors generally. �Similar relief, in cases of double bankruptcy, is granted to an assignee upon the same principle of relieving his estate from a charge equitably payable out of another fund, even though it sometimes accidentally results in giving a preference out of another estate to a creditor who, in his own right, had no claim to such a preference. Ex parte Waring^ 19 Ves. 345; Ex parte Ackroyd, 3 De G., F. & J. 726 ; Powles v. Hargraves, 3 De G., M. & G. 430, 458 ; In re Barnerd, L. B. 19 Eq. Cas. 1, (10 Ch. App. 198;) City Bank y. Luckie, L. E. 5 Ch. App. 773. �As to the claims of subsequent creditors, it is objected that the assignee, although representing them, stands preciseiy in their shoes at the'time of the bankruptcy, and can maintain no action based upon their claims which they themselves were not then in a situation to bring ; and that as no judgment was ever recovered or execution issued upon their demanda, no action based on these claims to reach the debtor's equitable assets can now be maintained by the assignee. This objection was considered and is fully answered in the case of Soutliard v. Benner, 72 N. Y. 424, where it was held that the assignee, without judgment or execution, may maintain any such suit in be- half of creditors to reach property fraudulently disposed of, as they ��� �