Page:Federal Reporter, 1st Series, Volume 3.djvu/101

 94 FEDERAL REPORTER. �property, or the value thereof, as assets of the bankrupt." The assignee in bankruptcy is, therefore, authorized to ac- quire the title to the property transferred, or sue for its value, and for this purpose to adopt any appropriate remedy at hia election. But it cannot be doubted that he may affirm the transfer; and in practice this is usually done by filing a bill against the volantary assignee for an aecounting. And in such actions the volnntary assignee is usually protected in ail payments made for the benefit of the estate. Jones, As- signee, V. Kinney et al. 4 N. B. E. 649 ; In re Colin, 6 N. B. E. 879; Cragin v. Thompson, 12 N. B. E. 81. These cases, and many others that might be cited, proceed upon the theory that the assignaient is not void ab initio, even as against the assignee in bankruptcy, but voidable at his election. As ia stated in Belden v. Smith, 16 N. B. E. 302, until the general assignment shall bave been set aside as void as against the assignee in bankruptcy, the title remains in the voluntary assignee. �It is not necessary to decide that an assignee in bank- ruptcy does not manifest his election to treat the assignment as void until he brings suit against the voluntary assignee to have it declared void, and obtains a decree. It sufiices to hold that he does not do this by making claim to a part only of the assigned property. He must elect to treat it as void in toto, or not at ail. He cannot elect to consider it void as ter* the particular sum of money now involved, and valid as to overything else which the voluntary assignee claims under the assignment. Until he bas elected to treat the assign- ment as void, it is to be treated as valid ; and as the title of the voluntary assignee is flrst in time, he is entitled to the sum in controversy. �The case is to be considered as though the assignee in bankruptcy had brought an action to recover money owing to the assignors before be bas elected -whether he will treat the voluntary assignment as valid or as void. He cannot mani- fest bis election in this manner, nor can the assignment be thus declared void collaterally. �Judgment is ordered for the plaintiflf. ����