Page:Federal Reporter, 1st Series, Volume 9.djvu/293

 278 PEDBBAL BBPOBTER. �$1,700 paid for duties and froight, |450 for insurance, and a few hundred dollars for miscellaneous small items of expense. �The respondent's charge of $1,618.14, for "his commif?sions as assignee," was intended as a charge of 5 per cent, upon the gross col- lections; and his counsel, upon the argument, daims that su m as his legal right under a statute of the state of New York, passed May 22, 1878, (chapter 318, § 7,) declaring that assignees "shall receive foi their services a commission of 5 per centum on the whole sum which shall have corne into their hands." Prior to this act there was no statutory provision in this state fixing the compensation of assignees, but it had long been settled in practice that they were to be allowed the same rates as those prescribed by statute for executors and administrators," — Keiley, Ins. Assgts. (3d Ed.) 137; In re Scott, 53 How. Pr. 441 ; Meacham v. Sternes, 9 Paige, 398, 403 ; Barney v. Grif- fin, 2 Comst. 372, — -which in this case would amount to less than one- third of the new statutory allowance. The counsel for the complain- ant contends that the respondent is not entitled to the benefit of this statute, but is limited to the former rule, which was in force on Jan- uary 2, 1878, when he accepted the trust. �There is nothing in this statute intimating that it was intended to be reti-oactive, By the ordinary rule of construction it would not, therefore, apply to assignments previously made. The compensation of the assignee, as long fixed by practice, might fairly be deemed to be among the implied terms, both of the making and of the acceptance of the assignment. If the statute in question had materially reduced the compensation of assignees instead of increasing it, it would scarcely be contended that anything less than the clearest indications in the statute would justify its application to assignments already accepted and partly executed. And if a retroactive effect would not be given to such a statute to the prejudice of the assignee, it should not, I think, be applied retroactively to the prejudice of the assignor or of the creditors benefieially interested in the assignment. See MS. memoranda of Choate, 3., in Rutherford v. Clements, Deeember 29, 1880. I have not been referred to any adjudication on the siibject in the state courts, and it is not necessary to determine the question here, as there are other considerations in this case which rendei- this statute, as well as the application of any other fixed rule of compensation, inappli- cable. �The assignment bas been adjudged fraudaient and void as against the eomplainant, and its further execution by the defendant lawfully interrupted. The assignee in bankruptcy lawfally takes the estate ��� �