Maynard King versus Lyman Moore, 18 Pick. 376

Putnam J. delivered the opinion of the Court. If the bill ol sale of the 28th of February is established, the plaintiff should prevail ; otherwise not.

The plaintiff contends, that at the time when he took this bill of sale, his claim against Flagg remained in force ; that it was not to be cancelled until it should be paid, and therefore that he bad a right to take the bill of sale, and hold the property to his own use ; and that the new note which he caused to be delivered to the bank after the assignment, with intent to pay his liability for Flagg to the bank, gave him a right to take and hold the goods contained in the bill of sale. The new note, we think, may be laid out of the case.

It never was accepted or discounted by the bank ; and we cannot perceive, that it gave the plaintiff any new or greater rights against Flagg than he had before that negotiation was attempted. And we all think, that by a true construction of the assignment, the plaintiff accepted the property in full discharge of his claims against Flagg, including his liability to the bank, and his own debt. The assignment is not very skilfully drawn, but its general intent is very clear.

It was a full accord and satisfaction of all the demands which the creditors who became parties to it, had against Flagg, in consideration of the real and personal estate and choses in action which were particularly described and conveyed by Flagg to the creditors. One year was allowed to the trustees, to reduce the property to cash, and then they were to pay the creditors. The plaintiff himself is one of the trustees, holding funds more than sufficient to pay all the preferred creditors, among whom his name is to be found It is not for him to say that this debt has not been paid.

No action could have been maintained by him against Flagg within the year. By accepting the particular property conveyed, in discharge of his claims, according to the assignment, we all think, that he had no legal right to interfere with the attachment which the defendant caused to be made upon the property of Flagg other than that which was conveyed by the assignment. It follows, that the bill of sale, being without any valuable consideration, was of no validity ; and that the defendant’s attachment should be held valid.

The opinion of the whole Court is, that there should be judgment for the defendant, and for a return of the goods which were replevied.