
    [Philadelphia,
    December 29,1824]
    GRAY and another against HILL and another.
    IN ERROR.
    By an assignment under the insolvent acts of 1729 — 30, and 17P8, the debtors es>' ■ tate in fend passes to the trustees though their assent does not appeal-.
    An assignment by trustees appointed under an act of assembly, made after the act has expired passes the estate and the assignees may maintain ejectment.
    This was an ejectment brought by David Gray and George Heberton against John Hill and Mary Miller, tried before Gibson, J. át Nisi Prius, in November last, for a house and lot of ground in Spruce street, in the city of Philadelphia. The declaration was filed generally against both defendants, and there was a general plea of not guilty. Mrs. Miller died on the 4th March, 1819, and her death was suggested in the record. It was proved on the trial, that Hill was in possession of a two story house and stable in the rear of the lot; the remaining part of the property, being a distinct messuage and lot, was in possession of the heirs of Alexander Miller. It was admitted that Alexander Miller on the 6th day of December, 1800, had title to the premises, and that on the 6th day of December of the same year he filed his petition in the Court of Common Pleas, of Philadelphia county, praying for thebenefitofthe insolvent laws then ih force, to wit, the act of the 4th April, 1798. On the 20th December, 1800, he was discharged by the court, having madé an assignment to Charles Browne and Alexander Elmslie, in trust, for the use of his creditors, by a short indorsement on his petition. On thé 26th April, 1814, Browne and Elmslie signed a paper, which on the 21st Jamiary, 1815, was filed in the Court of Common Pleas, setting forth, that they had never acted as trustees of A. Miller, and declined doing so; and on the 21st January, 1815, Gray and Heberton,- creditors of Miller, filed a petition in the same court of Common Pleas, setting forth that Browne and Elmslie had never acted as assignees, and praying the court to appoint others in their place. On the same day, Heberton and Gray, the plaintiffs in this ejectment, were appointed by the'court, in the room of Browne and Elmslie. On the 24th June, 1817, the court approved of Philip Justice as security for the assignees, and fixed the bail at 3900 dollars. On the 26th June, 1817, the bond of the assignees and surety was filed. On the 4th of December,' 1817, the court dii’eeted A. Elmslie, who survived Browne, to assign his interest in the estate of Miller to Heberton and Gray, which was accordingly done on the same day.
    A verdict was rendered in favour of the plaintiff for the part of the lot in the possession of Hill, subject to the opinion of the court.
    
      King, for the defendant now contended.
    I. That no title passed to the first trustees Browne and Elms-lie, because they never accepted the trust, nor assented to it. Jackson v. Dunlap, 1 Johns. Cas. 114. Jackson v. Phillips, 12 Johns. 418. Harrison v. Trustees of Phillips’ Academy, 12. Mass. Rep. 456, are authorities to show, that an estate does not pass to the grantee unless he assent to the deed, and that without such assent there can be no legal delivery of the deed. Where there arises a presumption of assent, it is destroyed by proof of dissent. Wilt v. Franklin, 1 Binn. 503. In the present case all the proof shows a dissent by the assignees at all times to their appointment. Another reason why the title did not pass, is, that the assignees did not give bonds according to the 3d section of the act of 1798.
    9. On the 21st January, 1815, when the.Court of Common Pleas appointed the plaintiffs trustees in the room of Elmslie and Browne, the act of 4th April, 179S, had expired. This law was originally limited to the 1st May, 1801. Read’s Dig. 176. 8 Car. 4’ Bio. 441. On the 26th March, ’1808, it was revived for one year, and then suffered to expire. 8 Car. 4’ Bio. 1808. -Proceedings, though begun, cannot be carried on under an act of assembly which has expired, unless there be a special provision made. The principle is the same in relation to an expired as to a repealed statute, in which case, the point has often been decided. - Road in Hatfield Township, Montgomery County, 4 Yeates, 392. United States v. Passmore, 4 Dall. 373. United States v. Schooner Peggy, 1 Cranch, 103. Yeaton v. United States, 5 Cranch, 282. United States v. The Herald, 6 Cranch, 203. Schooner Rachael v. The United States, 6 Cranch, 329. 7 Wheat. 550, Miller’s Case, 1 W. Bl. 451. 3 Burr. 1456, is express, that no proceedings can be pursued under a repealed insolvent act, though begun before the repeal, Unless by special exception.
    
      J. M. Read, contra.
    1. The estate certainly passed to the first assignees, for it is clear that it did not remain in the insolvent. In Young v. Willing, 2 Dall. 276, it was held, that an insolvent after being discharged, cannot maintain a suit in his own name. In Willis v. Row, 3 Yeates, 520, the trustees did not give bond, and the insolvent brought an ejectment in his own name, but was nonsuited. To the same effect is the case of Kennedy v. Innis, 5 Serg. & Rawle, 
      394. That a refusal to act does not prevent the assigned estate from vesting in the trustees of an insolvent, is clear from the case of Cooper v. Henderson, 6 Binn. 189, where it was determined, that the Court of Common Pleas in such case may appoint new trustees, and compel those first appointed to assign to them.
    2. The estate which was vested in the first trustees they might assign to others. This is not the case of a repealed but of an expired statute: but even the repeal of a statute does not take away vested civil rights. Bedford v. Shilling, 4 Serg. & Rawle, 401. Hatfield Road 4 Yeates 392. Commonwealth v. Duane, 1 Binn. 608. Here the legal estate was vested in.the first trustees: the equitable estate was in the creditors. This legal estate passed by their assignment to the second trustees, the plaintiffs,' and the creditors have never objected. In equity, ■ a trustee who refuses the trust may be compelled by the Chancellor to assign. 2 Com. Dig. Chancezy, 4 if. 6.
   The opinion of the court was delivered by

Gibson, J.

The original act of 1729 — 30, provides, that the estate of the insolvent debtor shall be vested in the assignees by the mere act of executing the assignment; and álthough this provision is not repeated in the act of 1798, under which the proceedings before us took place, there can be little doubt that the variance, in this particular, from the original act, was accidental. On executing the assignment, the person of the insolvent debtor is discharged ; and this is in consideration of his having surrendered his estate to his creditors. But if the estate should not vest in the assignees by the mere act of executing the conveyance, it would necessarily remain in the debtor himself, wherever the assignees should refuse to accept of the trust; and thus the debtor would have all the benefit intended to be extended to him, without the creditors having the benefit of the security intended to be provided for them, as the debtor might, the next moment, dispose of his effects in a way which would put them beyond their reach. It must be' obvious, therefore, that it would be inconsistent with the security of the creditors, which we must suppose to have been a cardinal object with the legislature, to treat the assent of the assignees to the grant, as a circumstance in anywise material. In all the cases cited, the grantee was beneficially interested; but here, independently of their interest as .creditors, the assignees had no interest in the trust, they were merely the instruments of the court in passing the estate to the creditors. Of what importance then can their, assent be to the efficacy of the assignment? If, in consequence of the assignees having neglected to execute the requisite bond, and enter upon the execution of the trust, the title did not vest in them, it has consequently remained all the while in the debtor or his heirs, and thus been subject to his disposition for a period of twenty-three years: a proposition too extravagant to be seriously urged. By the assignment, therefore, it is clear, that the legal estate passed to the assignees; and it is equally clear, that by their conveyance, it passed to the plaintiffs, subject to the trusts declared in the original assignment; which is all that is necessary to enable them to support this ejectment. This being the only point in the defence, relied on, the plaintiffs are entitled to judgment.

Judgment'for plaintiffs.  