This action was brought to recover the value of a part of the same stock of goods which passed to the appellee, as assignee, under an assignment made by P. R. Turner & Co., which has been considered at the present term in the case of Schoolher, Bernstein & Co. v. Hutchins, assignee.
The facts bearing on the validity of the assignment, the right of "the appellee to maintain this action, and upon the measure of damages, are identical in the two cases, except that the bond of the assignee was executed, approved and filed before the goods were seized under the attachment sued, out by L. & H. Blum, which is made the basis of this action.
The first, second, third, seventh, eighth and tenth assignments of *322error present the same questions which were considered in the case before referred to, and it is, therefore, unnecessary to repeat in this opinion the reasons which induce us to hold that these assignments present no error.
There was no error in the ruling of the court which excluded the evidence offered to show what the goods which were seized subsequently brought when sold by the sheriff. The goods were seized on •July 5, 1883, and were not sold until September 17, following, and there was evidence tending to show that during this interval, by reason of the negligent manner in which the goods were taken care of, they depreciated in value to the extent of thirty or forty per cent. When sold, the goods were bought by L. & H. Blum, for $2,500, and they at once sold them for $2,600 to Hutchins, who stated that he would have paid $3,500 for them. Such evidence would have been misleading.
There was no issue made by the pleadings, as to whether the notice to creditors to present their claims had been given, nor as to whether creditors had established their claims, as required by the statute, and, therefore, no proof made upon these subjects; but, as more time than would be requisite for those purposes, if statutory diligence was used, had elapsed before the trial, the following charge was asked:
“In this case, plaintiff sues as the assignee of P. R. Turner & Co., and as the assignee of P. R. Turner, W. B. Moore and J. E. Peters, 'under a deed of assignment executed July 4, 1883, for the benefit of such of the creditors of said firm and individuals as should accept said assignment. Hnder the law, the time within which the creditors could accept the assignment, had long since expired, and there is no evidence in this case showing that any of the creditors of the assignors have ever accepted the assignment. In the absence of such acceptance by any of such creditors, the plaintiff herein becomes a trustee of the firm; and individuals, considered as such, cannot recover in this action against defendants, and the jury are, therefore, instructed that plaintiff cannot recover in this cause, and that a verdict should be returned for defendants."
We are of the opinion that it was not necessary for the plaintiff to make proof that claims had been established in an action in which the assignee was but asserting his right to the fund to which the assignment gave him the legal title; for, as against him, a trespasser, even though he be a creditor of the assignor, and entitled, upon compliance with the requirements of the law, to take under the assignment, cannot be heard to assert a claim or right to appropriate the trust property to his own use. The right of the plaintiff to recover was fixed by the facts «existing at the time the action was brought, and so tested, there can be *323no question as to Ms rigM to recover without proof that a single creditor had presented and established his claim as the statute requires.
The law provides how such creditors, as do not consent to take under an assignment, may reach such funds as may remain in the hands of the assignee, after the purposes of the trust have been carried out by him, so far as they can be, and if this manner be not exclusive, it certainly would be necessary for a creditor, who claims the right to take from the assignee any part of the trust fund otherwise than through its regular admimstration under the statute, to plead and prove the facts wMch may authorize him, to take or hold any part of the trust estate.
The legal title to the entire estate vested in the assignee. For a violation of the right growing out of tMs an action lies, and if any creditor has an equitable claim or legal right against the assigned property, which he seeks to assert otherwise than as the statute contemplates, he must plead and prove the facts on which such claim or right is founded. It cannot be presumed that an assignee, who takes under an assignment made under the statute, holds simply as a trustee for the benefit of an assignor, or assignors, and that he and the estate he so holds may be treated as though no other relation existed. The testimony of the witness, Hutchins, standing alone, would not have been proper evidence of the value of the goods at the time of seizure, but, taken in connection with that of the "witnesses Williamson and 'Turner, was admissible, and might be looked to to ascertain the value -of the goods.
The entire evidence shows, with all reasonable certainty, that the ¡goods were worth, when seized, fully as much as the estimate put upon them by the jury. Language used by counsel for plaintiff in argument was improper, but there is no reason to believe, looMng to the whole case, that it influenced the jury, for the verdict seems to us not excessive, and, under the facts not controverted, the plaintiff was entitled to a judgment.
There is no error in the judgment and it will be affirmed,
Affirmed.
[Opinion delivered May 25, 1886.]