N. P. 159; Parker v. Webb, 3 Salk. 5;

Harley v. King, 5 Tyrw. 692; Luxmore r. Rohson, 1 B & Ald. 584; Demarest v.

Willard, 8 Couen, 206; Taylor v. Shum,

1 B. & P. 21; Armstrong v. Wheeler, 9 Cowen, 88, Bac. Abr. tit. Cor. But not if he abandons the possession, for the lialility is only as perdurable as the possession. Valliant v. Dodemede, 2 Atk. 546; 1 itcher v. Torey, 12 Mod. 23 , Armstrong v. Wheeler, above cited; Onslow v. Corrie. 2 Madd. 330; Wilkins v. Fry,

2 Rofe, 371; Taylor v. Shim, 1 B. & P. 21; Eaton v. Jacques, Doug. 456.

(a) See cases cited in the preceding note.

(b) In Ex parte Newhall, 2 Story, 360, Story, J., said: " I take the clear rule in bankruptcy to be, that the assignee takes the property and rights of property of the bankrupt, subject to all the rights and equities of third persons, which are attached to it in the hands of the bankrupt." And the language of Erskine, L. Ch., in Ex parte Hanson, 12 Yes. 346, is equally unqualified: "There is a clear principle which decides this case, that assignees in bankruptcy take subject to all equities attaching upon the bankrupt; and as the condition of the bankrupts, if they had continued solvent, would, as between them and these persons, be such as I have represented, that must be the condition of the assignees." Ex parte Herbert, 13 Ves. 188; Mitford v. Mitford, 9 Ves. 100; Pope v. Onslow, 2 Vern.286; Brown v Heathcote, 1 Atk. 160, 162; Scott v. Surnam, Willes, 402; Leslie v. Guthrie. 1 Bing. N. C 697; Fletcher v. Morey, 2 Story, 555; Mitchell r. Wins-low, id. 630; Humphreys v. Blight, if trover be brought, refund in damages for, any property he has taken as the insolvent's to which some one else has a better title, (c)

1Wash. C. C. 44; Stouffer v. Coleman, 1 Yeates, 399; In the matter of Mc-Lellan, 6 Law Reporter, 440; Talcott v. Dudley, 4 Scam. 427. See also Er parte Marsh, 1 Atk. 159; Ex parte Butler, id.

Assignees must act jointly, neither having the power of both; nor can either or both delegate their power, or substitute others as assignees, (d) But the estate of the debtor, and the powers of assignees, vest in the survivors and survivor, when the number of assignees is reduced by death or otherwise, (e) They may employ attorneys or agents to act for them in all matters in which their own personal action * is not necessary; (f) and their liability for the acts of their agents would be determined by the general principles of the law of agency, (g) They may sue

213; Clopham v. Gallant, 1 Com. Dig. 533; Howard v. Jem met. 3 Burr. 1369; Winch v. Keely, 1 T. R. 619; Grant v. Mills, 2 Ves. & B. 309; In the matter of Muggridge, 5 Law Reporter, 351; Ex parte Cope land, 3 Deacon & Ch. 199; Ex parte Prescott, 1 Mont & A. 316; Ex parte Flower, 2 id. 224; Ex parte Plant, 4 Deacon & Ch. 160; Griswold v. McMillan, 11 111. 591; Strong v. Clawson, 5 Gilman, 346. The assignee takes only the bankrupt's beneficial interest. Ontario Bank v. Mumford, 2 Barb. Ch. 596. The rule above stated is liable to no exception whatever, except in case of fraud, which "vitiates everything," and which, where it exists, prevents the operation of every general rule. Story, J., in the cases cited from 2 Story. The right always exists in the assignees of defeating any conveyance made by the bankrupt in fraud of his creditors or of the bankrupt laws. Williams v. Vermeule, 4 Sandf Ch 388.

(c) It seems that no authority under a decree in bankruptcy to take possession of the goods of A, would make a party the less a wrong-doer who should, under the color of that authority, seize the goods or estate of B; and assignees are to use great diligence in avoiding the seizing of property of persons other than the Bankrupt; for in the case of Ex parte Cowan, 3 B. & Ald. 123, it appeared that the assignees had seized as the property of the bankrupt a farm belonging to A B, and had kept it for a lone time, and mismanaged it, and that the Lord Chancellor had referred it to a Master to take the account between A and B and the assignees in respect of such property and of its mismanagement, and afterwards, upon his report, had ordered a certain sum to be paid to A B by the assignees, the commission having been previously suspended. This was a motion for a prohibition to the Lord Chancellor In support of the motion, the following authorities were relied on: Davy's Case, 1 Lord Raymond, 531; Ex parte Rowton. 17 Ves. 426; Eyre v. Jackson, 1 Chan. Rep. 229; Brymer v. Atkins, 1 H. Bl. 164; Ex parte Earl of Litchfield, 1 Atk. 88 But the court held, that the chancellor had not exceeded his jurisdiction in making the assignees personally liable, beyond the funds in their hands, for such mismanagement. In the matter of Chenev. 5 Law Reporter, 19.

(d) Williams v. Walsbv, 4 Esp. «•; Lord Lovelace's case, Sir w. Jones, 268; Can v. Reed, 3 Atk. 695. See Smith v. Jameson, 1 Esp. 114; Bristow v. Eastman, id. 172.

(e) Section 18.

(f) This would seem to follow as a right incident to their character as trustees.

(g) It has been held, that if an assignee employs an agent in the conduct and management of the bankrupt s property, who misapplies and embezzles any part of the effects, the assignee will be liable to make it good, unless he had consulted the body of the creditors, who are his cestui que trust, in the appointment of such agent. In the matter of Earl of Litchfield, 1 Atk. 87. But it is clear that when the assignees employ a person, either from necessity or conformity to the general usage of mankind, they are not then liable for losses, or for the default of such agents Thus, where an assignee employed a broker to sell a quantity of tobacco, and the broker received the money, and in ten days failed without having paid it over, the assignee in this case was held not bound to make it good. Ex parte Belchier, Ambl. 218; Belchier v. Parsons, 1 Kenyon. 44. See Ex parte Wilkinson, Buck, 197: Deacon on Bankruptcy, 339. In Belchier v. Parsons, above cited, the duty and right of assignees in in their own name, on the contracts or choses in action of the insolvent, which they take for the creditors. (h)l this matter are well set forth: " I am of opinion that there are no grounds to make Mrs. Parsons answerable in this cause for any more of the money than what she actually received. Were it once to be laid down, as a rule in this court, that an assignee, or trustee, should be answerable in all events for the people they employ, no man in his senses would ever undertake those offices. In the case of executors and administrators, the common law does, in most cases, consider the persons receiving by their directions only as the hands by which they receive; and this court, likewise, to preserve some consistency with the common law, does confine them to stricter rules, and what is a devastavit at law, must be so here. But iff the case of trustees, and assignees particularly, who are acting immediately under the authority of this court, it has always admitted of greater latitude; nay, in the former cage, this court, and sometimes even the courts of law, have dispensed with that rigor. In cases of this kind, it is not to be expected that the assignees will themselves attend the disposition of the bankrupt's effects, and less so still in the present case, from the sin of the person whom the creditors have thought proper to choose assignee, nor would it indeed be for the benefit of the creditors, if they did. Brokers, and such sort of people, being more conversant with the effects to be disposed of, are better judges of their value, and more capable of disposing of them to advantage."