In Massachusetts it was provided, by the statute of 1836, c. 238, § 7, that the supreme court or court of common pleas might, upon the application of the debtor, or of the assignees, or of any creditor or other person interested in the case, remove any assignee for any sufficient cause, and upon such removal, or upon the death or resignation of an assignee, appoint another in his place. In Rhode Island it is provided that an assignee may be removed by the supreme court on the application of a majority in interest of the creditors, on cause shown, and a new assignee appointed.1

§ 472. Powers of new Assignee.—Where an assignee has been appointed or substituted by the court in the place of another, as described in the present chapter, he succeeds to all the rights, powers and duties of his predecessor. In Pennsylvania it has been expressly provided by statute, that every assignee and trustee appointed by the court shall be liable to the same duties, shall have the same powers and authorities in relation to the trust, or to the further execution of the same, as the case may be, and shall be subject to the jurisdiction and control of the court in the same manner, to all intents and purposes, as his predecessor or predecessors in the trust. And that upon the appointment by the court of such assignee or trustee, and upon his giving security, if he shall be so required, all the trust estate and effects whatsoever shall, forthwith, and without any act or deed, pass to and be vested in such succeeding assignee or trustee. And similar provisions are found in the statutes of other States.1

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If a debtor makes an assignment of his property in trust.

it into execution in behalf of the parties interested. Sandf. Ch. 336.

'Pub. Stat. (1882), pp. 657, 658.

Suarez v. Pumpelly, 2

Act of June 14, 1836, § 25; Purdon's Dig. p. 805, pl. 25.

Id. § 26; Purdon's Dig. pl. 26.

Ohio, Act of April 16, 1874; Sayler's Stats. vol. 4, p. 3250, c. 2784; R. S.

(1880), § 6340; Iowa, Code (1880), p. 512, §

H. 1870), p. 117, § 19; R. S. (1881), § 1680;

p. 658.

2128; Indiana, Stat. of Ind. (G. & Rhode Island, Pub. Stats. (1882),

to pay creditors pro rata, one to whom the trustee assigns the property, with notice of the trust, must execute it.1

§ 473. Discharge of Assignee.-As we have already seen, provision is in some instances made by statute for the discharge of the assignee from his trust. Where no such statutory provisions exist, the assignee will be discharged from the duties and liabilities of his office in the same manner as other trustees are relieved of their trusts. "The dis

charge of a trustee upon the termination of the trust, or upon the appointment of another trustee, does not of itself release the trustee from responsibility for his past conduct, and the cestui que trust may still inquire into his administration prior to his discharge, and may require him to account for all his transactions; therefore it is usual, upon the final settlement and transfer of the trust property to the parties entitled, to discharge the trustee by a formal release of all claims, executed by all the cestuis que trust who are sui juris."3

CHAPTER XLII.

PROCEEDINGS OF CREDITORS.-COMING IN UNDER THE ASSIGN

MENT.

§ 474. A voluntary assignment being in its nature a mode and instrument of provision for creditors, and deriv ing its validity from the sufficiency or legality of such provision, the rights of creditors obviously form an essential element in any adequate view which can be taken of the law regulating this description of transfer, and of the practice established thereupon. These rights of creditors have already been alluded to, in the progress of this work, as the subject suggested. It has been found most convenient, however, to consider fully, first, how the trust for creditors is created on the part of the assignor, and secondly, how it is executed on the part of the assignee, before finally showing, under a distinct head, as it is now proposed to do, what are the rights of creditors, either under the assignment, or in opposition to it, or independently of it, and what proceedings it is competent for them to adopt for the enforce ment of such rights.

§ 475. Coming in under the Assignment. On receiving notice of the execution of an assignment, or becoming otherwise informed that such a transfer has been made, the creditors either accept of the provision made by it, or reject it as fraudulent or illegal, with the view of taking active measures to avoid it; or, in some cases, disregard it entirely, and proceed as though it had not been made.1 If they accept the assignment, they come in under it, and proceed to take such steps for obtaining its benefits as may be required of

It is optional with the creditors to treat the assignment as void, and disregard the claims of the trustee or assignee, or to hold him to an accountability for the trusts which he has voluntarily assumed. Geisse v. Beall, 3 Wis. 367.

them either by the provisions of the instrument, or by the general rules of law applicable to the case.

An executor holding a bond and mortgage of an assignor whose estate pays a dividend, has been held guilty of laches in not presenting his claim on the bond to the assignee.'

§ 476. What Creditors may come in.-Creditors are entitled to avail themselves of the benefit of an assignment, although it has been made without their knowledge or privity, and may compel the trustee to execute the trusts created by it. And they may come in if they choose, even under a fraudulent assignment.3 And even where they have already taken legal proceedings against the property of the debtor, which have proved unavailing, or where they have abandoned such proceedings, they may still claim under the assignment; and they are not precluded, in such cases, from receiving a dividend, nor from calling the assignee to account. The doctrine of election does not apply to such cases. But a creditor cannot hold an assignment good in part and bad in part; if he ratifies it at all, he must stand by it."

A married woman may prove her claim against the assigned estate of her husband, like any other creditor, it ap pearing that her claim was bona fide and upon good consid eration."

'Wilson v. Staats, 33 N. J. Eq. 524.

'Ward v. Lewis, 4 Pick. 518; New England Bank v. Lewis, 8 Id. 113; Pingree v. Comstock, 18 Id. 46; Wilde, J., Id. 50, 51; Shepherd v. McEvers, 4 Johns. Ch. 136; Ingram v. Kirkpatrick, 6 Ired. Eq. 452; Robertson v. Sublett, 6 Humph. 316.

Ames v. Blunt, 5 Paige, 13; Mills v. Argall, 6 Id. 577; Geisse v. Beall, 3 Wis. 367.

4 Jewett v. Woodward, 1 Edw. Ch. 105.

Where there was an agreement between a debtor and some of his creditors, whereby they were to forego the benefits of an assignment, it was held that if such agreement was valid, and he had so violated it as to absolve the other parties from their obligation, they could claim under the assignment, with the other creditors, and there would be no occasion for an equitable proceeding to vacate the agreement. Hatcher v. Winters, 71 Mo. 30; see Empey v. Sherwood, 12 Nev. 355.

Geisse v. Beall, ubi supra; Jefferie's Appeal, 33 Penn. St. 39; Frierson v. Branch, 30 Ark. 453.

An assignee, under the assignment act of South Carolina, by purchasing claims of creditors of the assigned estate, becomes entitled to the rights of such creditors against the agent.1

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§ 477. When to come in.--Where a specific time is prescribed by the assignment for creditors to come in and assent to it, as parties or otherwise, and they have had due notice of it, they must comply strictly with the condition, and cannot come in after the expiration of the time limited.2 It has been held, however, that they are not, in such case, absolutely excluded; but they can only claim the benefit of any surplus which may remain after satisfying the claims of those creditors who have complied with the terms of the assignment. In some States this is expressly provided by statute. Thus, in New Jersey, if any creditor shall not exhibit his claim within three months from the date of the assignment, he will be barred of a dividend, unless the estate prove sufficient, after the debts exhibited and allowed are fully satisfied, or unless he shall find some other estate not accounted for by the assignee before distribution, in which case he will be entitled to a ratable proportion therefrom. In Massachusetts it was provided, by the statute of 1836, c. 238, § 4, that all creditors should have a right to become parties to the assignment, provided they applied therefor before the final dividend was declared; but no cred itor, coming in after any dividend was declared, should be allowed to disturb it, but he should receive an equal portion with the other creditors, so far as the funds then remaining unappropriated in the hands of the assignees should be sufficient. And in Maine, creditors not becoming parties

1

McIntyre v. McClenaghan, 12 S. Ca. 185.

* Phoenix Bank v. Sullivan, 9 Pick. 410; Battles v. Fobes, 21 Id. 239; Dedham Bank v. Richards, 2 Metc. 105.

De Caters v. Le Ray de Chaumont, 2 Paige, 490, 493.

Rev. Stat. (ed. 1878), p. 40, § 20; see Vanderveer v. Conover, 16 N. J. L. 487. The posting of a claim on the last day for presentation is not a "presenting" or 'exhibiting" within the meaning of the statute, where it does not, in fact, reach the assignee on that day. Ellison v. Lindsley, 33 N. J. Eq. 258.