¶1The rights of*the parties depend on paper A. (See the substance of the document referred to, stated in the opinion at special term, Ante, 285.)
¶22. I think paper A. protects Lemuel Holmes for his debt, as well as Coffin, Holmes & Co. True, the recital refers to notes indorsed by Coffin, Holmes & Co., and the purpose of the assignment is declared to be to protect Coffin, Holmes & Co.; but when it comes to declare what they shall do with the proceeds of the assigned property, they are authorized to pay the Lemuel Holmes note of S700, and all expenses; and when said notes (which would include the Holmes note) shall have been fully paid, and said firm fully indemnified, then the sale and assignment to be void. They might have taken possession of all the books, and in such case would have had a right to retain and collect enough to pay and include the Holmes note. I cannot see that their omission to take possession is to defeat the assignment, or that the Holmes note was only to be paid in the event of their taking possession of the books. That would be too strict a construction of the agreement. They are trustees for Holmes as well as themselves.
¶33. Besides, the right to take possession of the books followed as a consequence of the assignment. It needed no express clause (except as to the debts which would thereafter accrue perhaps) to confer this power. It could never have been meant to depend upon the mere contingency of their obtaining possession of the books before the death of Coffin. The survivors, within the meaning of the contract, were just as much Coffin, Holmes & Co., as if Coffin himself had lived.
¶44. But they sought and obtained the aid of the court, when they had a right to do so, under the strict construction of the contract; that is, when the Hazard note (of Coffin, Holmes & Co.) was outstanding. The injunction was, therefore, proper; and the plaintiffs having, through the process of the court, obtained possession of the books, had a right to retain them till every debt secured by the assignment was discharged.
¶55. I know no reason why future debts (as between the parties) upon the books of Coffin, Holmes & Co. might not be assigned, as well as those already existing (Field a. Mayor, &c., of N. Y., 6 N. Y., 179) ; but however that'may be, there is a large amount of past assets of H. McArthur & Co.
¶66. It is no sound objection to a continuance of the injunction, or to a receiver, that Alger is abundantly able to pay. Here is an absolute right to the property. It belongs to the plaintiffs, unless the defendant will pay the deí)t. To say that he may keep the property for that reason, is to say that any rich man may keep his neighbor’s property, simply because he is able to respond. Indeed, it may be doubted whether the plaintiffs are not absolutely entitled to the possession of the assets, instead of putting them into the possession of a receiver.
¶77. I do not think the assignment covers paper indorsed by Powers and Holmes individually. They did not purport to indorse as survivors of the firm ; nor do they pretend to any express authority to do so. The assignment covers no other indorsements than those of Coffin, Holmes & Co., and these are not of that character. The payment of the latter notes would not have enabled Power and Holmes *476to. sue Coffin, Holmes & Co. for contribution. The original liability was not legally continued.
¶88. My impression, therefore, is, that the order at the special term should be reversed, and that the injunction should be reinstated and a receiver appointed, unless the defendant will execute an undertaking to the plaintiffs, with two sufficient sureties, to be approved by a justice of this court, to the effect that the defendant will, within ten days after notice of the judgment in this action, pay over to the plaintiffs the amount due and unpaid upon the Holmes note, unless the court shall finally decide that the plaintiffs are not entitled thereto. The costs of this appeal should abide the event of the action.