Page:Federal Reporter, 1st Series, Volume 9.djvu/295

280 FEDEEAIi EEPORTEB. �was issued, which -was served on the defendant on Mardi 12th ; au adjudication of bankruptcy was entered on May 31, 1878; the assign- aient to the plaintiff was made on August 9th ; and this suit com- menced on the thirty-arst of October following. In the mean time, during February and March, prior to the filing of the petition in bankruptcy, a judgment was recovered by the Eleventh Ward Bank against the assignors for about |8,000, upon which execution was issued to the sheriff, and several other judgments were recovered against them, upon which executions were also issued during the same period, all of which, by the law of this state, became liens upon any goods and chattels of the assignors, the legal title to which still re- mained in them. If the assignaient executed on January 2d had been a valid assignaient under the state law, these executions would not have attached, and upon the decree in this action setting aside the voluntary assignaient, the benefits of the decree, it is settled, would have enured only to the assignee in bankruptcy, and the exe- cution creditors would have remained without lien or preference as before. In re Biesenthal, 15 N. B. K. 228. But upon examination of the inventory and schedules by counsel for the judgment creditors, it was found that they were wholly wanting in any statement of the individual assets or liabilities of two of the three partners ; that they were verified by only one of them ; and that this one had stated noth- ing in regard to his individual assets or liabilities. Upon the ground of these defects in the schedules, this court, upon the petition of the Eleventh Ward Bank, adjudged the assignment void, under the state law, after the lapse of 30 days, to-wit, on February 1, 1878, and that all the execution creditors, between that date and the eleventh of March, when the petition in bankruptcy was filed, acquired valid legal liens upon the goods and chattels of the assignors. See opinion of Choate, J., In re Bear, filed December 23, 1879. These execution creditors have already withdrawn about $12,500 from the net pro- ceeds of the estate before mentioned, and other similar daims are still undecided; and the numerous petitions and litigations which have thus sprung from the invalidity of the assignment through the defective schedules have entailed large additional expenses, which are likely to leave but a small residue of the net proceeds of $21,313.07 for distribution among the general creditors. �Upon these facts it is clear that the defendant can have no legal or equitable daim to "commissions as assignee." The assignment became, after the lapse of 30 days, through the remissness of the assignee, not merely voidable, but void, without suit or other direct ��� �