Comfort Sands and others, appellants, against George Codwise and others, respondents, 2 Johns. 486

Tompkins, J. delivered the opinion of the court. On the refusal of Kihbe, to permit hid name to be used as complainant in the" court of chancery, the respondents acquired a right, as creditors of Sands, to proceed for themselves, and all such creditors as would contribute to the expenses of that suit. This right which became perfect by the conduct of the assignee, could not be devested by any subsequent chango 0f the assignee; the latter merely came into the place of the'former, and acquired no greater rights than he had.

But the assignee can be viewed in no other light than a trustee for all the creditors ; they are the persons beneficially interested. The appellants have no other concern with respect to proper parties, than that the final decree of the court may be conclusive and binding, whether for or against them. It cannot be doubted that they have that security, if the decree of this court be in their favour, because the assignee has no personal rights to be affected; for the creditors are the real persons, and their rights only are in litigation.

The authorities cited by the appellant’s counsel, are not analagous to the present case; they relate only to making persons, becoming interested, parties, in a court having original jurisdiction, and not to a case before a court of the last resort. It has been said, that the assignee ought to be a party to protect the interest of the creditors, who are not parties to this suit. It is a sufficient answer to say, that the respondents are the best representatives of the rights of the creditors; their own interest is inseparable from that of all concerned.

It would be oppressive, as respects the respondents, to admit a further procrastination of the cause, without the most solid and valid reasons. The decree only declares the sales made by Sands fraudulent, and directs the property to be sold, and the money brought into court, subject to such distribution as the ,chancellor shall direct. The rights of the creditors are, thérefore, not concluded, or prejudiced by Macomb's not being made a party.

There is weight also, in the argument urged by the respondents’ counsel, that if the appeal is to be arrested by a change of the assignee, it will always be in the power of a portion of the creditor?! to defeat a final determination. If the change of the assignee can prejudice the rights of the creditors, it will be produced by their own act, which ought not to be permitted to operate to the injury of the respondents. The motion must, therefore, be denied. M. Justice Spencer, on account of extreme sickness in his family, did not attend this session of the Court of Errors.