Page:Federal Reporter, 1st Series, Volume 8.djvu/432

418 FBDEBAL . BBPOETBE. �lapse of one j'ear from the date of the assignaient the county judge, upon the. petition of atoy crediter of the debtor, should have power to compel an aocounting; by the assignee, and to decree payment of sucb qreditor's proportional just part of the fund. An appeal lay from the decree of the county judge. . The fifth ^ection was as follows : �" Wienever any such assignee or assignees shall omit or refuse to perform any decree or order made against hito, her, or them, by a judge or court hav- ing jurisdiction, to compel- the payment of any debt out of such trust fund, such county judge or court may order the bond of such assignee or assignees to be prosecuted in the narae of the people by the district attorney of the county where the said bond is flled, and shall apply the moneys collected thereon in satisfaction of the debts of said debtor qr debtors in the same manner as the same ought to have been applied by such assignee or assignees." �Chief Justice Church, speaking for the court of appeals in People V. Chalmers, 60 N. Y. 154, says: �" ihis language (section 5) clearly refers to the order or decree provided for .n the fourth section to be made by the county judge on accounting, or by an appellate court upon the appeal fi-om such order or decree. The word ' judg- ment ' is not used ; and, as orders and decrees are specially provided for in the fourth section, it is presumed that the use of these woi-ds in the flfth section ref erred to such orders and decrees as the previous section authorized. How- ever this may be, it is quite evident, whatever court may make the order or decree, it must be one to enforce the duty of the assignee under the assign- ment." �The facts upon which the court based its decision were different from those in this case. In the Chalmers Case, sundry creditors of the insolvent debtor had obtained judgmepts upon their claims, and a decree declaring the assignment to be void as to the plaintiffs, and directing the assignee to pay to them the amount of their judgments ratably out of the assets in his hands. The suit was to subvert the assignment, which was virtually held to be void asto all the creditors. The amount of the judgments was more than the trust fund. Upon the assignee'e refusai to pay these judgments, suit was brought against the sureties upon their bond. In this case the assignment was not void as against creditors. It was valid when made, but by the decree in bankruptcy it became void as against the assignees in bank- ruptcy. By virtue of the assignment, a good title tO the assigned property passed to the assignee, subject to be defeated by an assignee in bankruptcy, provided the assignment was made within the re- spective periods, prior to the filing of the petition for an adjudication, specified in the bankrupt act in the case of voluntary or involuntarv ��� �