
    [Philadelphia,
    April 12th, 1836.]
    VANARSDALE against RICHARDS.
    Where an assignment has been made for the benefit of creditors, an action cannot be maintained by one of the creditors against the assignees, unti) the accounts of such assignees have been settled in the Common Pleas, and a decree made by that Court for distribution; and the rule is the same, whether the action is for money had and received, or upon averment of misconduct and mismanagement on the part of the defendants. i
    This was an action on the case brought by Aaron Vanarsdale to the use of William Stell, trustee of Hannah Vanarsdale, against Samuel Richards, who survived George Billington, assignee of Robert E. Gray.
    The declaration contained-counts for money had and received, work and labour, &c. and on an account stated, and a special count for mismanaging the trust estate, &c. to the prejudice of the plaintiff.
    The case was tried before Mr. Justice Kennedy, at a Court, of JVisi Prius held in Philadelphia, on the 10th of December, 1835.
    It appeared in evidence, that the plaintiff was a creditor of Robert E. Gray, who, on the 20th of August, 1818, made an assignment of all his estate and effects to Samuel Richards and George Billington, upon the usual trusts, viz. to sell, or otherwise dispose of the assigned estate, and distribute the proceeds among such creditors as should execute a release to the assignor. The plaintiff complied with the condition by executing a release within the required time. On the 1st of March, 1824, Richards and Billington conveyed the estate to Samuel N. Gray. In 1825, a citation was issued from the Court of Common Pleas, at the instance of the plaintiff, Vanarsdale, to Billington, the assignee: in .obedience to which he settled an account of his receipts and payments as assignee. It did not appear, that Richards had settled any accounts.
    Upon these facts, the learned Judge being of opinion, upon the authority of a case decided at the last term at Pittsburgh, that the action could not be maintained, the plaintiff’s counsel submitted to a nonsuit, with leave to move in bank to take it off.
    A motion having accordingly been made: Mr. Randall, for the plaintiff, admitted that the recent decisions of the Court, in Rush v. Good, (14 Serg. fy R. 230,) and Gray y. Bell, settled the-question, that assumpsit for money had and received, &c. would not lie against assignees, to recover a proportion of the fund, until a' settlement of their accounts had been duly made in the proper office; but he endeavoured to distinguish this case from those decided: the present action charging the defendants with tortious conduct in respect to' the sale of the property, &c. Mr. Randall' also cited a case of M‘Leod v. Latimer, (MS.) decided by this Court in 1826, where an action, by a creditor against assignees to recover a proportionate share of the fund, was sustained; although he admitted that the objection was not there taken.
    
    Mr. Tilghman and Mr. Peters, for the defendants, relied on the two cases above stated.
    
      
      
        Gray v. Bell, (MS.) This case will be reported by Mr. 'Waits in his 4th volume.
    
    
      
       Haying been favoured by Mr. Randall with a copy of the opinion of the Court in this case, 1 have inserted it, with some others, in an appendix to this volume. — Rep.
    
   Per Curiam.

The trust involved in this assignment, is peculiarly a subject of equitable cognizance; and though an actual want of chancery powers might compel us to sustain an action at law in the first instance, it does not follow, that a cestui que trust shall not be thrown on his equitable resources, where such have been provided for him. We consider the point to have been already decided.

Mr. Randall took nothing by his motion.  