Mather v. Pratt et al.

Mather v. Pratt et al. 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. 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. Where a voluntary assignment has been made for the benefit of such of the creditors of the assignor, as shall, within a specified time, execute a release of their debts, a creditor must release within the time specified, or he will not be entitled to a dividend, though he should execute a release, before any dividend has been declared. Cheever v. Imlay, 7 S. & R. 510. It is not sufficient, that an offer to release has been made, within the specified time, nor will the acceptance of the trust by an assignee, who is a creditor, entitle him to the benefit of it, if he has failed to execute the release within the time. Pearpoint v. Graham, 4 W. C. C. 232. But a release, executed after the specified time, will discharge the debt, where there is neither fraud nor mistake. Coe v. Hutton, 1 S. & R. 398. [MAJORITY] The Court were unanimously, and clearly, of this opinion; and the plaintiff suffered a nonsuit. 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.