Page:Federal Reporter, 1st Series, Volume 4.djvu/335

 IiINDBB V. LEWIS, 321 �It is true that there ia this distinction in the facts between this case and the case of In re Biesenthal: that here no part of the asaigned property or of its proceeds, traced and identi- fied as Buch, in the form of a particular sum of money, ia shown tq be in the possession of the execution creditors, but the property bas been sold by the sheriff upon their procure-: ment, and the money bas, before the institution of bank- ruptcy proceedings, been paid to them and applied in part aat- isf action of their judgments, whereby its identity, as part of the assigned estate^ bas been wholly lost. It is true, also, thft^t, in levying their executions on this property as the prop- erty of the bankrupt, they haye not çlaimed under but in hos- tility to the assignment. But it does not foUow from these differences in the facts that the case of In re Biesenthal does not apply, nor that the complainant bas not properly made them parties defendant to this suit, or that he bas any rem- edy at law to tecover from them the proceeds of the assigned property received by them. A voluntary assignment, made within the time before bankruptcy limited by the bankrupt law, and in violation of its provisions, is^not, on that account, absolutely void. It is voidable only at the option of the as- signee in bankruptcy; and the proper and only way in which he can exercise that option is by a suit in equity to set it aside. Xt may be for the interest of creditors, and it may be his duty, not to exercise that option ; but, by neglecting to bring a suit for that purpose,to affirm it so far as he is concemed. If, therefore, this complainant bad brought no suit to set aside the assignment, the defendant's levies of execution could not be impeached by bim, and their title as against him wonld be perfect. He could not, therefore, without suit to set aside the assignment, maintain trespass or trover against them. �The answer would be complete that the assignment was voidable only, not void; that it had never been avoided; that for that purpose the state assignee must be made a party defendant ; that, if avoided, it must be avoided in whole and not in part; that the assignee could not, as to that particu- lar part of the property levied on, elect to avoid the assign- �ment, leaving it in full force as to ail the rest of the assigned v.4,no.4 — 21 ����