¶1It appears by the agreed statement .of facts, that the indenture of trust, entered into by the defendants and Booth, the claimant, for the benefit of the defendants’ creditors, was not assented to or executed by any of the creditors at the time it was made; that, after Booth had given notice of his acceptance of the trust, a portion of the creditors presented their claims, thereby assenting to the indenture ; and that Booth had paid out all the assets that had come into his hands.
¶2While, therefore, it appears that all the assets in the hands of Booth were exhausted by the creditors who had assented to the indenture, it does not appear that the claims of the creditors assenting were sufficient to exhaust the sum in the hands of the trustee in this action, which Booth contends he is entitled to receive. In other words, the agreed statement fails to show that the sum held by this trustee is necessary to pay the creditors who have elected to come in under the indenture of trust. For aught that appears, the assets actually received by Booth were sufficient to pay the claims of all the creditors assenting.
¶3It was said in Everett v. Walcott, 15 Pick. 94, 97: “ Where the debts of the assenting creditors amount to less than the trust fund, the assignment is held good pro tanto, and the residue of the assigned property is liable to attachment, either in the hands of the assignees, or, if uncollected, in the hands of the debtors of the assignors, or, if it remains in its original situation, by actual seizure.” In the case at bar, the plaintiffs did not assent to the assignment to Booth. Admitting that the money in the hands of Walsh, the trustee, is a portion of the property assigned to Booth by the indenture, yet, in the absence of proof that a sufficient number of creditors have assented to exhaust this sum, it is liable to be taken on trustee process.
¶4As this is decisive of the case, we have not considered the other question raised by the parties and argued at the bar, touch? ing the validity of the assignment, as against this plaintiff.
¶5Trustee charged.