Page:Federal Reporter, 1st Series, Volume 9.djvu/296

HUNKER V. BING. 281 �proceeding to avoid it. Thereafter, in contemplation of law, there was neither assignaient nor assignee; neither trust, trust property, nor trustee. The assigned property reverted by operation of law to the assignors; it became liable to the attachments and executions of ereditors, and upon the appointment of the complainant as assignee in bankruptcy it became ipso facto vested in him, subject only to such liens as had in the mean time attached upon it. No claim to com- pensation in the character of "assignee" can therefore be allowed to the defendant; nor for the period of 30 days, during which the assignment was in force, (In re Croughwell, 17 N. B. E. 337,) can any claim be entertained for commissions, since the assignment subse- quently lapsed and became void through what must be held legally to have been the fault of the assignee himself in not filing "such a schedule as he could." �It does not follow, however, that all remuneration should be denied to the respondent. No claim under the void assignment, or for any- thing having reference to the void statutory proceeding, can be re- garded. But for other acts performed by the respondent, in the way of services and disbursements, which, considered independent of the assignment itself, were lawfully rendered, and were beneficiai to the general body of ereditors, or which would have been necessarily in- curred by the complainant as assignee in the care of the property, or in its conversion into money, allowance should be made. The ex- press assignment affords the defendant no protection. He must bear all the charges and disbursements pertaining to it, or to the defective inventory and schedules contained in his acoount. But, as it was not illegal for the debtors by paroi to put their property into the possession of the respondent as their factor or agent to sell it and distribute its proceeds among their ereditors, — though subject to be withdrawn by the debtors at any moment on payment of charges, and subject to the attacks of execution ereditors, or to proceedings in bankruptcy, — so the respondent may be regarded as having done what he did under an implied request to that effect, and to haye acquired thereby an equitable lien upon the property in his posses- sion for his necessary services and disbursements therein, which should be respected in bankruptcy so far as they have been necessary and beneficiai to the general ereditors, or such as the assignee in bankruptcy would otherwise have incurred. Shellington v. Howland, 53 N. Y. 371; Madison Ave. Bapt. Ch, v. Bapt. Ch. in Oliver St. 9 Jones & S. Supr. Ct. Eep. 369, 384; S. C. 73 N. Y. 82, 92 ; Platt v. Archer, supra. ��� �