The order was made on the petition of a creditor, and directed that a citation issue requiring the assignee to appear on a day named and render an account. It is objected that the order should have been for a citation to show cause, and not for a citation absolute in its terms.
An examination of the existing statute relating to assignments for the benefit of creditors, discloses some apparent inconsistencies in its provisions for calling the assignee to account, which may have been caused by successive amendments not carefully adjusted to portions of the former statutes left unrepealed. It was no doubt, the intention of the legislature in all the successive enactments, to provide that the assignee might be required in a proper case to render an account on the application of a creditor of the assigned estate; and this, independent of the final accounting or settlement of the accounts of the assignee.
The act of 1860 was repealed by the act of 1877. The latter statute (sec. 11) provides for a citation requiring the parties to show cause why an accounting and settlement should not be had, and that this may be required on the petition of a creditor (or of other parties mentioned) after the lapse of one year, etc. Section 12 of the same statute provides that the citation issued on the petition of a creditor may be addressed to and served upon the assignee alone, but that on the return of such citation the assignee may have a general citation issued to all the parties interested.
The act of 1878 amends section 11 of the act of 1877, and as amended that section now provides for a citation to be issued by the County Court to all parties interested, requiring them to appear and show cause why a settlement of the account of proceedings of the assignee should not be had, and if. no cause is shown, to attend the settlement of such account. The provisions of the section as to the persons by whom and the time within which a petition may be presented for such citation remain as in the act of 1877, and section 12 remains unchanged.
We have, then, by the act of 1877, as amended by that of 1878, a provision in berms for no other citation than one to all parties interested, requiring them to show cause why a settlement of the accounts of the assignee, should not be had ; and yet section 12 continues to provide that when the citation is issued on the petition of a creditor, it may be addressed to and served upon the assignee' alone. There is also the general provision in section 25 to the effect that the court may exercise the power of a court of equity in reference to the trust and all matters involved therein.
Upon the whole, then, we have no difficulty in concluding that, notwithstanding some confusion in its terms, the statute still provides, as it did in 1860, for requiring the assignee to account on the
This practice is also in harmony with that of courts of equity in the enforcement of trusts, in which a trustee can never be required to render an account at the suit of any person until he has had an opportunity to meet the allegation of such person that he is entitled to have an accounting.
Under the provisions of the statute and in conformity to the practice in analogous proceedings, as well as upon considerations of justice and convenience, we think that the order in this case, in the first instance, should have been for a citation requiring the assignee to show cause why he should not render an account.
The order appealed from is for that reason reversed, but as the question under the statute is a new one, the reversal is without costs to either party as against the other.
Order appealed from reversed.