An assignee chosen at a meeting of creditors had promised to pay the claims of two creditors in full to procure their powers of attorney to vote at such meeting. The court refused to confirm the election. In re Haas et al., 8 N. B. R. 189; 11 Fed. Cas. 138.

In the absence of evidence of bad character or incompetency, the court will not interfere with the election of an assignee chosen by a majority of the creditors in number and value. In re Grant, 2 N. B. R. 106; 10 Fed. Cas. 973.

A receiver had been appointed under a state law for an insolvent bank. Subsequently, proceedings in bankruptcy were commenced, and the creditors elected the receiver trustee. They also elected a committee of creditors, one of whom was the president of a bank which claimed to be a preferred creditor. The court refused to confirm the election of the trustee or the committee, and appointed an assignee. In re Stuyvesant Bank, 5 Ben. 566; 23 Fed. Cas. 339.

It is the duty of the court of bankruptcy to see that the rights of creditors are protected in the choice of an assignee; and the court set aside the election of an assignee who had been a bookkeeper of the bankrupt, and when the bankrupt and his attorney seemed to control the action of the creditors. In re Wetmore et al., 16 N. B. R. 514; 29 Fed. Cas. 842.

Decision by register: "It has been uniformly held by the courts that they will not affirm the election or appointment of an assignee who is a relative of the bankrupt." In re Zinn, 4 N. B. R. 370; 40 How. Pr. 461; 30 Fed. Cas. 935.

The mere fact of the relationship in the ninth degree or less of the proposed trustee, on the part of the bankrupt or of the largest creditor, is no disqualification. In re Zinn, 4 Ben. 500; 4 N. B. R. 436; 30 Fed. Cas. 934 (1871).

Under the Act of 1867 the court had authority to approve or disapprove of the election of an assignee by the creditors; but it was held that this was a legal discretion, and where the choice was made by a large majority both in number and amount, the court could not refuse to confirm upon mere rumors of commercial dishonesty. In re Funkenstein et al., 1 Pac. Law Rep. 11; 9 Fed. Cas. 1004.

Several members of the family of one of the members of a bankrupt firm had proved claims against the estate. His son was elected assignee. The court refused to confirm the election. In re Bogart et al., 3 N. B. R. 651; 3 Fed. Cas. S03.

When there are no assets and no creditors have proved debts, an assignee should nevertheless be appointed. Anon., 1 N. B. R. 122; 1 Fed. Cas. 1012.

Judge Longyear, of the district court of Michigan, said that the Bankrupt Act of 1867 prescribed no particular manner of voting for assignee, and added: "It may be assumed, therefore, that any mode or manner of voting by which the choice of each creditor entitled to vote is clearly expressed is sufficient. It may no doubt be taken by ballot, or riva voce. It may be taken by calling the name of each creditor, or by calling upon

the person or persons representing creditors by power of attorney to name the choice of the creditor or creditors represented by him." In re Lake Superior Ship Canal R. I. Co., 7 N. B. R. 376; 14 Fed. Cas. 951. Judge Blatchford decided, under the Act of 1867, that when no creditor had proved his debt at the time fixed for the first meeting of creditors, the judge or register could appoint an assignee. In re Cogswell, 1 Ben. 388; 6 Fed. Cas. 11.

The bankrupt himself could be heard in objection to the appointment of an assignee under the Act of 1867. In re McGlyn, 2 Low. 127; 16 Fed. Cas. 122.

At the first meeting of creditors, the selection of a certain assignee was expressly opposed. The meeting was adjourned to a subsequent day, when, the opposing creditors not being present, the assignee first proposed was selected, and the register reported that he was chosen without opposition. The facts being presented to the court, it was held that the register erred in so reporting, and that he should have reported the facts, the adjourned meeting being but a continuance of the first meeting. In re Norton, 18 Fed. Cas. 416 (1873).

The court held that the appointment of an assignee by a register should be annulled, though no formal objection was made at the time by any of the creditors, but where there was shown to be an opposing interest. In re Pearson, 2 N. B. R. 477; 19 Fed. Cas. 65.

Held, under the Act of 1867, that a register cannot directly or indirectly interfere with the choice of the assignee by creditors. In re Smith, 2 Ben. 113; 22 Fed. Cas. 381.

Under the Act of 1800, Judge Cranch instructed the jury that where an assignee in bankruptcy was plaintiff, he must prove himself to be duly appointed by producing the original commission and the proceedings thereon, or a certified copy thereof and the original deed of assignment. Melver v. Moore, 1 Cranch C. C. 90; 16 Fed. Cas. 153 (1802).

Irregularity in the proof of a claim which did not affect the result of the election of assignee is not sufficient ground for setting the election aside. In re Jackson, 7 Biss. 280; 13 Fed. Cas. 191.

Creditors who have not been allowed to prove their claims so as to vote for assignee without fault of their own, may apply to the court, and on a proper showing the court will set aside the result and order a new election. In re Lake Superior Ship Canal R. I. Co., 7 N. B. R. 376; 14 Fed. Cas. 951.

Under the Act of 1867, an order to set aside the appointment of an assignee could only be made by the district judge, and upon notice. In re Stokes, 1 N. B. R. 489; 23 Fed. Cas. 134.

The court refused to sanction the election of a trustee, and a committee to supervise his action, under section 43 of the Act of 1867, which consisted of only two members, one of whom was the trustee himself. In re Stillwell, 2 N. B. R. 526; 23 Fed. Cas. 88.

Under the Act of 1867, even after an assignee has been duly appointed, a creditor may arrange by trust deed to have the assignee removed, and

in his stead to have trustees appointed to administer the bankrupt's estate. In re Jones, 2 N. B. R. 59; 13 Fed. Cas. 933.

The removal of an assignee by the district court will not be reviewed by the circuit court. In re Adler, 2 Woods, 571; 1 Fed. Cas. 176.

Where an application was made for the removal of an assignee the court ordered the register to employ counsel to represent the estate on the order to show cause. In re Price, 4 N. B. R. 406; 19 Fed. Cas. 1313. The assignee was clerk of the bankrupt's attorney and was charged by creditors with mismanagement of the estate. Under the circumstances of the case, the court removed him, and appointed a new assignee; but it appearing that the former assignee had acted in good faith, the costs of the proceedings were ordered to be paid out of the estate. In re Malory, 4 N. B. R. 153; 16 Fed. Cas. 546.

Where a new warrant is issued containing the names of creditors that have been added by an amended petition after the election of an assignee, the assignee should not be removed without an application, of which all the creditors should have notice. In re Perry, 1 N. B. R. 220; 19 Fed. Cas. 263.

An assignee who had permitted the bankrupt's real estate to be sold for taxes was removed, notwithstanding he had acted on the advice of counsel, and was ordered to pay from his own funds the costs of the petition for his removal. In re Morse, 7 N. B. R. 56; 17 Fed. Cas. 848.

The court refused to remove an assignee for involving the estate in needless litigation when it appeared that it was done on the advice of counsel. In re Blodget et al., 5 N. B. R. 472; 3 Fed. Cas. 716.

Where a resolution for the removal of an assignee was passed by the votes of parties whose claims the assignee was seeking to impeach, the court refused to remove him. In re Dewey, 1 Low. 490; 7 Fed. Cas. 572.

§ 47. Duties of Trustees.

DUTIES.

(a.) Trustees shall respectively (1.) Account for and pay over to the estates under their control all interest received by them upon property of such estates;

(2.) Collect and reduce to money the property of the estates for which they are trustees, under the direction of the court, and close up the estate as expeditiously as is compatible with the best interests of the parties in interest;

(3.) Deposit all money received by them in one of the designated depositories;

(4.) Disburse money only by check or draft on the depositories in which it has been deposited;

(5.) Furnish such information concerning the estates of which they are trustees and their administration as may be requested by parties in interest;

(6.) Keep regular accounts showing all amounts received and from what sources and all amounts expended and on what accounts; (7.) Lay before the final meeting of the creditors detailed statements of the administration of the estates;

(8.) Make final reports and file final accounts with the courts fifteen days before the days fixed for the final meetings of the creditors; (9.) Pay dividends within ten days after they are declared by the referees;

(10.) Report to the courts, in writing, the condition of the estates and the amounts of money on hand, and such other details as may be required by the courts, within the first month after their appointment and every two months thereafter, unless otherwise ordered by the courts; and

(11.) Set apart the bankrupt's exemptions and report the items and estimated value thereof to the court as soon as practicable after their appointment.

(b.) Whenever three trustees have been appointed for an estate, the concurrence of at least two of them shall be necessary to the validity of their every act concerning the administration of the estate.

An assignee in bankruptcy can recover money loaned by the bankrupt after the petition was filed and before adjudication. Crompton et al. v. Conkling, 9 Ben. 225; 6 Fed. Cas. 848.

An assignee in bankruptcy has the right to bring suit to protect the estate, notwithstanding the pendency of a creditor's suit brought in aid of the estate, in which suit a receiver has been appointed. Shainwald v. Davids, 69 Fed. Rep. 687.

An assignee in bankruptcy has a right to file a bill in chancery against all incumbrancers of the bankrupt's property, to test their validity, priority and amount. McLean v. LaFayette Bank et al., 3 McLean, 415, 587; 16 Fed. Cas. 258, 264 (1844-6).

The assignee, and not the bankrupt, is the proper party to bring a writ of error to a judgment against the latter when he has received his discharge pending the action. Knox v. Exchange Bank, 12 Wall. 379.

Under section 5198, R. S., a person who has paid usurious interest to a national bank, or his "legal representative," may recover back twice the amount of the interest so paid. Held, that an assignee in bankruptcy could maintain an action for that purpose. Markson v. First National Bank, 9 Chi. Leg. News, 108; 16 Fed. Cas. 768.

Where property was held by the defendant under claims in different rights, it was held that the proper remedy for an assignee in bankruptcy seeking to recover the same was a suit in the form of a creditor's bill, and that it was no objection to such proceeding that there were other cred

itors of the defendant. Stotesbury et al. v. Cadwallader et al., 31 Leg. Int. 229; 23 Fed. Cas. 176.

The marshal seized goods belonging to the bankrupt which were subsequently delivered to an alleged purchaser upon his giving a forthcoming bond. The alleged sale was set aside as fraudulent, and this decision was confirmed in the supreme court. The purchaser was insolvent. The court of bankruptcy decided that the assignee might proceed on one of the appeal bonds, or upon the forthcoming bond, without first enforcing the same against the estate of the purchaser, and that it was not necessary to resort to a plenary action. Storrs et al. v. Engle et al., 3 Hughes, 414; 23 Fed. Cas. 165.

The assignee sued a debtor on the common counts. The defendant set up that before the commencement of proceedings in bankruptcy, he had brought his suit against the bankrupts, and that the bankrupts had claimed by way of set-off the same money sued for by the assignee, and for the same cause of action, and that that suit was still pending. A demurrer to the plea was sustained. Miller v. Del., L. & W. R. Co., 17 Fed. Cas. 314.

After the filing of the petition, a note was given to the bankrupt for the payment of a book account, and deposited in bank for collection and paid at maturity. This was held, in an action brought by the assignee for the amount of the note, to discharge the maker. Galvin v. Boyd, 25 Fitz. L. J. 14; 9 Fed. Cas. 1140.

The court of bankruptcy made an assessment upon all the premium notes belonging to the bankrupt, a mutual insurance company. This was held not to be such an adjudication as to prevent the maker pleading a defense to the note when an action was brought upon it by the assignee. Lamb v. Lamb, 6 Biss. 420; 14 Fed. Cas. 1016.

The interests of creditors will be considered, notwithstanding the expense and delay of litigation to recover assets of the bankrupt. In re Rowe, 18 N. B. R. 429; 20 Fed. Cas. 1280.

The bankruptcy of an insurance company cannot be set up as a defense to an action on a note given for a premium, brought by the assignee in bankruptcy. Carey v. Nagle, 2 Biss. 244; 5 Fed. Cas. 60.

In this case the court decided under the Act of 1800 that on the death of an assignee in bankruptcy the right of action for a debt due the bankrupt vested in his executor. Richards v. Maryland I. Co., 8 Cranch, 94. The omission in a bill in equity by an assignee to allege that there had been an adjudication is not fatal when it sets up the filing of the petition, the appointment of the assignee and the assignment to him. Lakin v. First Nat. Bank, 13 Blatchf. 83; 14 Fed. Cas. 959.

An adjudication in bankruptcy is an essential prerequisite and condition precedent to the power of a register to make assignment of a bankrupt's estate. The adjudication must, therefore, be alleged in a suit by an assignee under such assignment brought to recover the property of the alleged bankrupt. Wright v. Johnson, 8 Blatchf. 150; 4 N. B. R. 626; 30 Fed. Cas. 678 (1871).