
    McLain v. Simington.
    A. assigned all his property to M. for the benefit of his creditors, having previously executed a mortgage on certain real estate to B., which real estate and certain personal property, the sherifE, at the suit of S., Lad seized in attachment, and was in possession of, at the date of the assignment. By agreement between the parties, M. converted the attached property into money, and held the proceeds to await the result of the attachment suit. The real estate was sold for less than the mortgage debt, and the attached personalty for less than the judgment subsequently recovered by S. In his account in the probate court, M. charged himself with the proceeds of the sale of the attached prop erty, and also other funds received by him as assignee; and credited himself with expenses paid in preserving and selling the attached property, and in resisting the attachment suit.
    
      Held, 1. It was proper for the assignee to account, in the probate court, for all moneys which came into his hands, as well the proceeds of tho attached property, as other funds.
    2. As against the proceeds of the attached property, expenses incurred in resisting the attachment suit were not iwoper allowances.
    3. Whether such expenses should be allowed the assignee out of other funds in his hands, depends on the fact whether they were reasonably and in good faith incurred for the benefit of the general creditors.
    4 The expenses in preserving and selling the attached property should be paid out of the proceeds of such property.
    5. The expenses (including commissions), of selling the mortgaged property should be paid out of the proceeds of the real estate so mortgaged.
    Error to the District Court of Morrow County.
    The questions in this case arise on exceptions to the report, of the assignee, filed in' the probate court.
    In July, 1877, Isaac T. McLain assigned all his property to plaintiff in error for the benefit of creditors, to be administered under the statute in such case made and provided.
    Previous to the assignment the assignor placed a mortgage for $500, on certain real estate in favor of William McLain; and B. W. Simington had seized the same parcel of real estate and certain personal property, including a board yard, in attachment, and the sheriff, by virtue of the writ of attachment, was in possession of the property seized at the date of the assignment.
    By a written contract between the attachment creditor, the assignee and assignor, the attached property was delivered to the assignee to be converted by him into money, and the proceeds held to await the event of the attachment suit. This suit was determined in favor of the attaching creditor. The attached property was sold by the assignee. The real estate was sold for less than the mortgage debt, and the balance of the attached property .for loss than the judgment recovered by the attaching creditor.
    In accounting in the probate court, the assignee charged himself with the proceeds of the sale of all the attached property, and also with other funds which came into his hands as assignee separately. Tie credited himself with certain expenses paid in preserving and selling the attached property, also certain expenses incurred and paid in defending and resisting the attachment suit. Exceptions were filed by the attaching creditor and other creditors, and on appeal to the court of common pleas, the exception to the matters of credit above-stated were sustained. In the district court, the judgment of the common pleas was affirmed.
    
      A. K. & J. C. Dunn and F. K. Dunn, for plaintiff in error.
    
      Dalrymple & Powell, for defendant in error.
   By the Court.

It was proper for the assignee to account in the probate court for all moneys which came into his hands, as well the proceeds of the attached property, as other funds.

As against the proceeds of the attached property, expenses incurred in resisting the attachment suit were not proper allowances.

"Whether such expenses should be allowed the assignee out of other funds in his hands, depends on the fact whether they wore reasonably and in good faith incurred for the benefit of the general creditors.

The expenses in preserving and selling the attached property should be paid out of the proceeds of such property.

The expenses (including commissions), of selling the mortgaged property should be paid out of the proceeds of the real estate so mortgaged.

Judgment reversed cmd cause remanded to court of common pleas.  