(v) 1 his seems naturally to follow from their character as trustees. The general doctrine is clear (see the chapter on Trustees, vol. i. of this work), that when the trustee has used trust funds for his own benefit, he shall be held liable to account for the profits accruing to him from the same, and pay them over to the cestui que trust. If he refuse to account, and if the

1 The assignee in bankruptcy of an insurance company can waive no conditions in a policy, but they must be complied with by the policy-holder after as well as before bankruptcy. In re Firemen's Ins Co 3 Bissell, 462. - K.

2 A secret agreement by a bankrupt in fraud of creditors to pay his assignee's debt in full, if he will assent to his discharge, is illegal at common law and contrary to the bankrupt act of 1867. Blasdel v. Fowle, 120 Mass 447. Where a creditor assented to a discharge, after having sold his proved debt for more than its value to a brother of the bankrupt, the presumption is very strong that the payment for the debt was made in behalf of the bankrupt. Re Whitney & Munson, 2 Lowell, 455 - K.

It is one of the earliest duties of assignees to take possession and charge, without any delay, of the effects of the insolvent And they would not only be responsible for any injury to this property while in their possession, if caused by their own default, but for any injury caused by a faulty delay in taking possession, (y)

An assignee has, however, a certain discretion in this matter. He is not bound to accept and receive what might prove to be a damnosa hereditas, or anything of that kind. If the insolvent has, for example, leasehold property, the assignee may take it into his possession. But if it be encumbered with charges and obligations, he takes it cum onere, and must fulfil all these * obligations; and if these would make it cost more than it is worth, so that taking it would diminish rather than enlarge the funds to which the creditors look, he may, as their trustee, refuse to take it. (z) But then other parties, who have these charges negligence and refusal is continued for a long period, he will be charged compound interest on the sum in his hands; and we see not why this same doctrine may not apply in case of bankrupt's assignees. Barney v. Saunders, 16 How. 535; Rowan v. Kirkpatrick, 14 111. 1; Jones v. Foxall, 15 Beav. 388; 13 Eng. L. & Eq. 140; Schieffelin v. Stewart, 1 Johns. On. 620; Boynton v. Dyer, 18 Pick, l,and numerous other cases, cited page * 122, of the first volume, note (f).

(x) The cases cited in the three previous notes seem to establish this.

(y) This doctrine is laid down in all the text-books on this subject, and seems nowhere contradicted by the authorities. And provision is made for the purpose of enabling him to take possession, in the sections already referred to.

(z) In Smith v. Gordon, 6 Law He-porter, 313, Ware, J., said: " By the bankrupt act, all the property and rights of property of the bankrupt, by force of the decree of bankruptcy, pass to the assignee by operation of law, and become vested in him as soon as he is appointed. But, though the legal title passes, he is not bound to take possession of all. It is perfectly well settled with respect to leasehold estates, under the English bankrupt laws, that the assignee is not and obligations against the debtor, may come in as creditors, if their claims are of a kind to be proved, and take their dividend: Neither can the assignee select or divide what he may thus take, if it be entire in itself. He cannot take it so far as it is good, and reject it as far as it is bad, but must do one or the other, alto-gether. (a) Indeed, it is a universal rule, that the assignee rep-resents the insolvent, so far as to be subject to all the equities against him which attach to any effects in * the assignee's hands, (b) So he must make restitution of, or bound to take the lease, and. charge the estate with the payment of rent. The rent may be greater than the value of the lease, and thus the estate may be burdened instead of being benefited by taking the lease, and in such a case the damnosa hereditas may be abandoned by the assignee. I have had occasion to consider this question in another case, and 1 came to the conclusion that this doctrine equally holds under our bank-rapt law. Ex parte Whitman, December, 1842. And I take the principle to be a general one, that the assignee is not, at least ordinarily, bound to take into his possession property which will be a burden instead of a benefit to the estate. If the assignee elects a right not to take, the property remains in the bankrupt, and no one has a right to dispute his possession His possessory title is good against all the world but his assignees. Thus, in this case, if the assignee elected not to take the right of the bankrupt and charge the estate with the costs of a suit in equity, the issue of which was uncertain, the right, whatsoever it was, remained in the bankrupt, and might be pursued by any creditor who had not proved under the bankruptcy." Nias v. Adamson, 3 B. & Ald. 225; Wheeler v. Borman, 3 Camp. 340; Turner v. Richardson, 7 East, 335; Copeland v. Stephens. 1 B. & Ald. 593; Bourdillon v. Dal-ton, 1 Esp. 233; Ex parte Fuller, 2 Story, 327. And the cases allow him a reasonable time in which to consider and decide whether he will take or not. If the assignee refuse to take possession, the title remains in the bankrupt, with the same rights of defence of title, and the same-privilege to sue for damages to his possession, as if his remaining goods had not been distributed for the benefit of his creditors. Smith v. Gordon, above cited; Webb v. Fox, 7 T. R. 391; Fowler v. Down, 1 B. & P. 44; Turner v. Richardson, above cited. But if the assignee takes the property, he takes it cum onere, and is liable for covenants and encumbrances. Holford v. Hatch, Doug. 183; Corsbie v. Free, Craig. & P. 64; 1 age v. Way, 3 Beav. 2; Tierce v. Thornley, 2 Sim. 167. See also Bull.