sary parties, as the trustee represented all the interests of all parties.1 § 494. Pleadings.-The grounds of the assignee's liability must be distinctly charged in the bill, as he will be held to account only for such neglects or breaches of duty as are charged. A creditor's bill, filed by the beneficiaries, for the settlement of a deed of trust executed by the debtor, which required that the secured creditors should assent to its provisions within six months, must allege that the complainants assented to the deed.3 § 495. Defense. Where a suit is brought by creditors to enforce the trust against an assignee who has received the property of the debtor, he cannot set up fraud in making the assignment, as a defense to the suit, without showing that the fund has been recovered from him by the parties intended to be defrauded. It is no excuse for not accounting, that the assignment is fraudulent and void as against creditors. The fact that one or more of the creditors mentioned in an assignment allege a fraudulent preference in favor of other creditors, is no reason why a court of equity should refuse to hold the assignee to accountability. can the fact that the creditors or cestuis que trust named in an assignment have made arrangements in regard to the distribution of the estate different from that prescribed by the assignment be made available to the trustee in avoidance of his liabilities as such." Where a trustee in a deed for the benefit of creditors without distinction or preference, in answer to a bill filed to enforce the trust, set up demands to a specific amount, as due to him by the grantor at the Nor 1 Buck v. Pennybacker, 4 Leigh, 5. So in Maine, it has been held in case of an assignment of real estate, that it is not requisite, where a bill is filed against an assignee, to make the creditors parties. The assignee is supposed to represent and protect their interests. Johnson v. Candage, 31 Me. 28. 7 Seaman v. Stoughton, 3 Barb. Ch. 344. Geisse v. Beall, 3 Wis. 367, 383. See this case for forms of bill and answer. * Geisse v. Beall, 3 Wis. 367; Lahm v. Johnston, 32 Ohio St. 590. time of the execution of the deed; and after his death, the bill was revived against his administrator, who adopted the answer of his intestate, but subsequently filed a supplemental answer, insisting upon an additional claim, to which he alleged his intestate's estate was entitled, for money advanced and paid out by his intestate since the execution of the deed and the filing of his answer, on execution against the grantor, which created a lien superior to the deed of trust, it was held, 1, that payments on executions against the grantor, made by the trustee before the date of the deed, were not put in issue by the pleadings, and were properly disallowed; 2, that the answer of the trustee was an admission of the extent of the debt claimed by him at that time, and was conclusive until amended.1 § 496. Decree. Where all the effects of a trust estate have been converted into money, and the debt constituting a charge upon it is ascertained, the decree against the trus tee, who is himself a creditor, should be for the balance that remains after deducting the dividend to which he is entitled, and not for the entire sum found in his hands.2 § 497. Statutory Proceedings.-In New Jersey, it is provided by statute that the orphans' court of the proper county may, from time to time, if necessary, by citation and attachment, compel the assignee to proceed to the execution of the duties required by the act, until a final settlement and distribution.3 In Pennsylvania, the Court of Common Pleas of the proper county is the appropriate tribunal in which creditors may proceed to have the accounts of the assignee settled. The course is to cite the assignee, after the expiration of one year from the date of the assignment, to appear and exhibit, under oath or affirmation, the accounts of the trust, in such court, within a time specified.* 1 1 Harrison v. Mock, 16 Ala. 616. An unreasonable delay in the execution of the trust cannot be met by the fact that the assignee had a discretion as to the time and mode of sale, nor that the delay was advised by counsel. Hammond v. Stanton, 4 R. S. 65. 2 Harrison v. Mock, ubi supra. 4 Act of June 14, 1836, §§ 7, 8, et seq.; Purdon's Dig. p. 803; Whitney's Ap In Georgia, creditors of a common debtor cannot enjoin by injunction other creditors from prosecuting garnishment proceedings against trustees of the debtor, under deeds conveying his property for the benefit of his creditors generally or of certain preferred creditors.1 § 498. Action for Dividend.-Where the trust has been so far executed that the distributive shares of the creditors have been ascertained by the assignee, and a dividend declared, an action will lie against him to recover such share or dividend, in favor of a creditor from whom it is withheld; and such action may be either in the form of a bill in equity, or action at law for money had and received.* But such an action will not lie in cases where a release is required of creditors, until a release has been executed; 5 nor, in Pennsylvania, until the assignee's accounts have been settled in the proper court, and a decree made for distribution; nor will the assignee be compelled by mandamus to pay a percentage when the amount depends upon the construction of the deed." 6 § 499. Interest, when Recoverable.-Besides the amount of his share or dividend, the creditor from whom it is withheld will be entitled to recover interest from the assignee in all cases where the latter has unreasonably delayed to pay it over, or has neglected to inform the creditor of the dividend.8 The general rule is that trustees of every descrip peal, 22 Penn. St. 500. See further, as to the proceedings in this State and others, ante, Chap. XXXIX. 'Nat'l Bank v. Printup, 63 Ga. 570; the garnishment proceeding being an adequate remedy under § 3541 of the code. As to the right of a creditor to bring an action against the assignee as garnishee, see Smith v. Millett, 11 R. I. 528. 2 ' Rush v. Good, 14 S. & R. 226; McLemore v. Nuckolls, 1 Ala. Sel. Cas. 591. Ward v. Lewis, 4 Pick. 518; Keyes v. Brush, 2 Paige, 311. McCrea v. Purmort, 16 Wend. 460; Cowen, J., Id. 465; New York Ins. Co. v. Roulet, 24 Wend. 505; Fitch v. Workman, 9 Metc. 517. * Mather v. Pratt, 4 Dall. 224; Bank of Penn. v. Gratz, 1 Browne (Penn.), Appx. 69. 8 • Van Arsdale v. Richards, 1 Whart. 402; Gray v. Bell, 4 Watts, 410. 'Hulse v. Marshall, 9 Mo. App. 148. Gray v. Thompson, 1 Johns. Ch. 82; Minuse v. Cox, 5 Id. 441; Lomax v. tion, neglecting to apprise those interested in the trust fund of the amount due to them, and to offer payment in a reasonable time, are chargeable with interest, and a demand by legatees, heirs, or creditors, is not necessary. In a case in New York, where an assignee, after having converted the assigned property into money, retained it in his hands for several years without making distribution, and a creditor filed a bill against him, he was decreed to pay the amount of the debt, with interest from the time he received the money, and with the costs of suit. 8 § 500. Actions in other cases.—If an assignee violates his trust, to the injury of a particular cestui que trust, the latter has his separate remedy in equity. So, if there be a breach of the assignee's covenants to the injury of any one covenantee, he may maintain an action at law, without joining the other covenantees.* In those States where bonds are required of assignees, they are sometimes declared to inure to the use and benefit of all the creditors, or persons interested in the assignment.5 In Missouri, any person injured by breach of the condition of an assignee's bond, may sue thereon in the name of the State, for his use." In New York any action brought upon an assignee's bond may be prosecuted by a party in interest by leave of the court; and all moneys realized thereon must be applied by direction of the county judge, in satisfaction of the debts of the assignor, in the same manner as the same ought to have been applied by the assignee.' Pendleton, 3 Call, 538; Estate of Merrick, 1 Ashm. 305; Bedell v. Janney, 9 Ill. 193; and see Lindsey v. Platner, 23 Miss. 576. 1 Estate of Merrick, 1 Ashm. 305; Clark v. Craig, 29 Mich. 398; Rosenberg v. Moore, 11 Md. 376. 'Gray v. Thompson, 1 Johns. Ch. 82. 3 Dimmock v. Bixby, 20 Pick. 368. 'Id. ibid. See Dorr v. Gibboney, 3 Hughes, 382. Pennsylvania act of June 14, 1836, § 6; Purdon's Dig. (Brightley, 10th ed.) p. 1416, pl. 6. 1 Stats. of Mo. (Wagner, 1870), p. 152, § 10; R. S. (1879), § 368. 'Laws of 1877, c. 466, § 9; 3 R. S. (7th ed.) p. 2278, § 9. CHAPTER XLV. PROCEEDINGS OF CREDITORS IN OPPOSITION TO THE ASSIGNMENT AND IN AVOIDANCE OF IT. Having considered the proceedings on the part of the creditors of the assignor, in cases where they accept of the provisions of the assignment, and elect to enforce the trust against the assignee, it remains to consider the nature and course of their proceedings where they repudiate the assignment, and refuse to come in under it. In cases of apparent fraud or obvious illegality, the course is sometimes adopted of treating the assignment as a nullity, and proceeding as though it had not been made. But the usual course taken by creditors, where an assignment has been made which is regarded as fraudulent and void as against them, is to assail it by hostile proceedings in courts of competent jurisdiction, for the express purpose of having it judicially declared to be void, and set aside for their benefit. § 501. Treating the Assignment as a Nullity.-The right to treat an assignment as a nullity, in certain cases, is, in some States, expressly given to creditors by statute. Thus, in Delaware, if an assignment is made with preferences, contrary to the statute, it is absolutely void, and the estate, goods, chattels, or effects, contained in such assignment, are declared to be liable to be taken in execution or attached for the payment of the debts of the assignor, in the same manner and to as full an effect as if no such assignment had been made. In other States, the same right is recognized by decisions of the courts. In Illinois, if an as 1 Laws of Delaware (ed. 1829), pp. 140, 141; Rev. Code of Del. (ed. 1874), p. 785, c. 132, § 4. |