The question in the present case is upon the trustee’s answers. The trustee summoned was Nathaniel Morton, Esq., lately a member of this bar, now deceased. It appears by the answers that insolvency proceedings were formerly instituted against Coggeshall, the principal defendant, by process in invitum, under which he was declared insolvent, and Morton was duly chosen assignee. In this capacity various sums of money came into his hands, from the collection of the debts of the insolvent and the proceeds of property sold, and various sums of money were disbursed by him for necessary incidental expenses, principally costs of court in suits by or against'Coggeshall, and various services were performed. Subsequently, by a judgment of this court, the proceedings in insolvency were declared and adjudged void ab initia for irregularity, and all proceedings under them became, as far as then practicable, void and of no effect. The matter has been referred to an auditor, who has classified the various sums received and paid, as stated in the answers.
S. iZ. Townsend, for the plaintiff,cited Rev. Sts. c. 109, § 36; Bartlett v. Bramhall, 3 Gray, 257.
B. Sanford, for the trustee.Upon a view of the answers, as explained by the report, the court are of opinion:
1. That if, at the time of the insolvency of Coggeshall, Morton & Bennett had received money of his as attorneys, and had charges against him, the balance only, after deducting the charges, if anything, can be claimed as due to Coggeshall, for Which Morton’s representative can be charged under this process.
2. That of the charges by Morton, in his capacity as assignee, the proceedings having been set aside as irregular and void, all sums necessarily disbursed by the assignee for incidental expenses are to be allowed and deducted from the moneys which came into his hands.
3. All sums charged for services by himself, as assignee, or by Morton & Bennett, as attorneys and counsel for the assignee, are to be disallowed and not deducted. As the proceedings were subsequently declared void ab initia, Coggeshall was not personally responsible for any such expenses of carrying on such proceedings.
4. If Coggeshall was indebted to Morton on any other account, for moneys or services, professional or otherwise, it is the ordinary case of set-off, and may be deducted from the money in the hands of Morton, which, as the event has turned out, were held by him to the use of Coggeshall.
Unless the parties agree to the amount for which the trustee is chargeable upon the principles thus stated, the case will be recommitted to the auditor for a statement of the account on these grounds.