In re Sharp

De Haven, J. Charles R. Allen, the petitioner herein, is the assignee in insolvency of one Sharp, an insolvent [578]debtor, and has given a bond for the faithful discharge of his duties as such assignee. On November 10, 1891, the court in which said insolvency proceeding was pending made an order settling the final account of said Allen, as such assignee, in which order a certain credit of $250, claimed in the account filed by him, was disallowed by the court, and as a part of the same order, directed him to pay over to the creditors of the insolvent the amount of money adjudged to be in his hands by such order, to wit, the sum of $3,662.86. Thereafter, the assignee perfected an appeal to this court from the order settling his account, and filed an undertaking for the payment of all damages and costs which might be awarded against him on the appeal not exceeding three hundred dollars.

The assignee having failed to distribute the money belonging to the estate of the insolvent, as required by the order before referred to, was cited to appear before the judge of the superior court, and show cause why he should not be punished as for a contempt of court.

This is an application for an order of this court directing a stay of all proceedings under and in execution of the order settling the account of said assignee, pending the decision of this court on the appeal therefrom.

1. The petitioner is entitled to the order which he asks. By section 67 of the Insolvent Act of 1880, it is provided that an appeal may be taken from an order settling the account of an assignee, and it is further provided: “ The notice, undertaking, and procedure on appeal shall conform to the general laws of this state regulating appeals in civil cases, except that -&hen the assignee has given an official undertaking, and appeal[s] from a judgment or order in insolvency, his official undertaking stands in the place of an undertaking on appeal, and the sureties therein are liable On such undertaking.”

Under this section the bond of the assignee operates as an undertaking on appeal, when the assignee appeals from any judgment or order in the insolvency proceedings, and also has the effect to stay proceedings [579]