c- 1 (JortipU ICatu ^rlynnl Slibtary KFISIS.AMs"""'™™'""-"'""^ The American Insolvency reports; contalnl 3 1924 019 204 522 The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019204522 THE AMERICAN Insolvency Reports; CONTAINIWa FULL REPORTS OF ALL THE MOST IMPOETANT DECISIONS UNDER THE INSOLVENT LAWS OF VARIOUS STATES. PROM JANUABY, 1878, to JANUAEY, 1883. RICHARD M. BRUNO, OF THE NEW YORK BAB. VOLUME I. NEW YOEK: H. CAMPBELL and COMPANY, 140 AND 142 Nassau Street. 1883. Sntered, according to Act of Confess, iu the year 1R83, hy H. CAMPBELL & CO., iu the Office of the Librarian of OongresR, at WaRhington. Tsow's Pbinting and Booebinuing Co., 201-iil8 East 2'u>e\fth Street, NEW TOItK. TABLE OF CASES REPORTED. A Adee v. Bigler 848 Alberts, Evans et si. v 330 Allen, Stiauss & Co. , In re 405 Anthony et al. v. Stype 271 Armstrong, Admr., et al. T. Croft et al 359 B Bailey, Assignee, In re 368 Baker V. Palmer 67 Bartlett V. Blaine 53 Barton, Sheriff, Kingman v 88 Bassett v. Fahey 174 Bastian, Macungie SaTings Bank V 484 Battey, Tennent v 133 Bean et al. , Bennie, Assignee, et aO. T 430 BeU V. Lamprey 10 Benham, Sheriff. Worthy, As- signee, V 145 Bennett, Assignee, t. Ellison 36 Benson, In re 301 Berg, Wilson v 169 Bergen t. Snedeker et al 341 Bigler, Adee v 348 Blaine, Bartlett v 53 Blatt et al., Rhoads v. . . , 45 Boese, Beceiver, i. Locke et aL 309, 336 Bostwick, Assignee, t. Burnett. . 118 Boyd et al. v. Smith 466 Brady, In re 103 Breeseetal., Carr et al. v. .855, 379 Brookenbrough's exrx. et al. v. Brockenbrongh's admr. et al . . 233 Brennaaetal. T. Willsonetal. .. . 77 Bryce et al., /n r« 186 Bnderus, Weeks et al. v 38 Baffnm et al., Hanscom v 39 Burnett, Bostwick, Assignee, v. . 118 Burrows v. Keaya 140 Bush T. U. S 487 C Campbell, Laird v 804 Carr et al. v. Breese et al. . .355, 879 Case, Stamp v 336 Chalfont v. Grant 351 Chambersburg Woolen Go. et al., Converseville Co. v 166 Charlton, Klauber, Assignee, v. . 383 Chicago Building Society, Haas v. 301 Churohm, Assignee, v. Whipple et al 6 Clark v. Stanton 80 Cohn et al., Jra re 331 Coine, Assignee, v. Weaver, Sher- iff 392 Comfort, Trustee, v. Patterson . . 241 Converseville Co. v. Chambers- burg Woolen Co. et al 166 Cornish, Fowler v 184 Cowan v. Mann 862 Croft et al., Armstrong, Admr., et al. V 359' Crouse et al. v. Frothingham et al. 441 Currier, In re 97. D Davis, AssigTiee, y. Howell, As- signee 85T Dobschutz et al. , Mueller, Exr. , v.. 69. Donahue et al., Stephenstm's exrs. V 319* Donaldson, Keevil et al. v U53- Drake et al., Holland et aL v 20 Dunham, Seymour et al., Assign- ees, V 386' Dnrr et al. v. Kelly et al. . . .^ .. . 431 E Barle et al., Solinger v. Sear Ellison, Bennett, Assignee, v 26.' Evana et al. t. Alberts WO' IV TABLE OF CASES. REPORTED. F Fahey, Bassett v 174 Famam, In re 137 Finok et al., ira r«. , 411 First National Bank of Newark t. Holmes et al 150 Fitzgerald, In re 100 Flaurand et al., Lowenstein et al. V , 479 Forkner, Assignee, v. Shafer et al. 16 Fowle et al., Whitcomb et al. v. . 160 Fowler, /rare 319 Fowler V. Cornish., 184 Francis v. Rankin 52 Frazier v. Truax, Assignee 453 Frothingham et al., Crouae et al. V 441 Fuller v. Steiglitz, Assignee 191 G Gage, Steams, Exr. , v 333 Gibbs V. Patton 253 Ginther et al., Assignees, v. Rich- mond 346 Goldsmith, Mellen et al. 7 298 Goodman v. Niblack 368 Grant, Chalfont v 251 Greene, Assignee, v. The National Security Bank 120 H >Haas v. The Chicago Building So- ciety 201 Haines, Price v 137 Halstead, Steiulein, Assignee, v. 474 Hanscom v. Buffum et al 39 Hard v. MiUigan 339 Hawks, Assignee, V, Pretzlaff... 389 Healey et al., Schiele et al. v. . . . 417 Herbst & Buehler's Appeal 234 Holland et al. v. Brake et al 80 Holt, In re 18 Holmes et al., FirsB National Bank of Newark v 150 Horsfall, In re 156, 350 Howard National Bank v. King et al 461 Howell, Assignee, Davis, As- signee, V 357 Howell et al., Assignees, v. Teel et al 130 Hulbuit et al., In re 454 J Johnson, Lahn et al. v 1 Jones V. Syeir et al 289 Jordan et al., Assignees, v. Shar- iook..... 48 K Keays, Burrows v 140 Keevil et al. v. Donaldson 153 Kelly et al., Durr et aL v. 431 King, In re 351 King et al., Howard National Bank V 461 Kingman v. Barton, Sheriff ..:... 88 Kingon, Pillsbnry, Assignee, v.. 274 Klauber, Assignee, V. Charlton.. 283 Kuykendall, Nimmo v 106 L Lahn et al. v. Johnson 1 Laird V. Campbell 304 Lamar Ins. Co. v. Moore 63 Lamprey, BeU v 10 Leahy, In re 163 Leipziger, Inr^e 147 Lester, Paine v 91 Lewenthal et al.. In re 99 Lewis, In re 353 Locke et a)., Boese, Recr., v. .309, 336 Longmire et al., Slnith et al v. . 434 Lowenstein et aL t. Flaurand et al 479 M McCloskey v. Stewart .*!, , 468 McConnell v. Sherwood, Sheriff. 400 Macungie Savgs. Bk. v. Bastian. 484 McGovem, Rockwell v 59 Mann, Cowan v 363 Marquand, Assignee, In re 216 Martin et al.. Assignees, v. PUls- bury et al 43 Mellen et al. v. Goldsmith 298 Miller, Assignee, v. Mulford, As- signee •. 393 MiUigan, Hard v 329 Moore, In re .". 95 Moore, Lamar Ins. Co. v 62 Mueller, Exr., v. Dobschutzet al. 69 Mulford, Assignee, Miller, As- signee, T 293 Mumper, Admrx., v. Rushmore, Sheriff 164 N National Security Bank, Greene, Assignee, v , 130 Niblack, Goodman v 368 Nimmo v. Kuykendall 106 o Oakley, Assignee, In re sg TABLK OF CASES REPORTED. P Palmer, Baker V 67 Paine v. Lester 91 Parsons v. Rhodes 354 Patterson, Comfort, Trustee, v. . 341 Patton, Gibba v 253 Pillsbury et al., Martin et al., As- signees, V 42 Pillsbury, Assignee, t. Kingon. . . 274 Piatt, Assignee, Stewart et al. v. 308 Praim, Sheriff, BiGhmond, As- signee V 427 PretzlaS, Hawks, Assignee, v. , . 889 Price V. Haines 137 E Rankin, Francis v ,. . . . 53 Ransom, In re 73 Raymond, Assignee, Iti re 445 Rennie, Assignee, et al. y. Bean et al 420 Rhoads v. Blatt et al 45 Rhodes, Parsons v 354 Richmond, Ginther et al. As- signees, V 246 Richmond, Assignee, v. Praim, SherifE ; 427 Rider, In re 397 Risley v. Smith, Assignee ....... 381 Rookw*ll V. MoGdvern 59 Rosenthal, Talcott v 367 Rushmore, Sheriff, Mumper, Admrx., v 164 s Schiele et al. v. Healy et al 417 Seymour, Wood worth e(jal. v 376 Seymour et aL, Assignees, v. Dunham 386 Shafer et al., Forkner, Assignee, V ^ 16 Sharlock, Jordan et al.. As- signees, V 48 Shaw et al.. Assignees, In re.... 244 Sherwood, Sheriff, McConneUv. 400 Shipman, Assignee, In re 413 Smith, Boyd et al. v 466 Smith et al. t. Long^ire et al. . 424 Smith, Assignee, Risley v 381 Smith V. Tighe et al 844 Smith, Tim et al. v 466 Snedeker et al. , Bergen v 341 Solinger v. Earle et al 363 Stamp V. Case , 226 Stanton, Clark v 80 Steams, Exr., v. Gage 333 Steiglitz, Assignee, Fuller v..... 191 Steinlein, Assignee, v. Halstead. 474 Stephenson's exrs. v. Donahue et al 319 Stewart, MoCloskey v 468 Stewart et al. v. Piatt, Assignee. 308 Stockbridge, In re 393 Stype, Anthony v 271 Syer et al. , Jones v 389 T Talcott v. Rosenthal 367 Tee! et al., Howell et al.. As- signees, V 130 Tennentv. Battey 133 Tighe etal., Smith v 344 Timetal. v. Smith 466 Truax, Assignee, Frazier v 453 True,/ftr« 108 U XJ. S., Bush T 487 W Wainwright et aJ. , Wallace et aJ. V. 110 Wallace et al. v. Wainwright et al. 110 Ward & Peloubet, In re 339 Weaver, Sheriff, Coine, As- signee, V 393 Weeks et al. v. Bndems 38 Weinboltz, In re 65 Whipple et al., Churchill, As- signee, V 6 Whitcomb et al. v. Fowle et al. . 160 Willson et al., Brennan et al. v. . 77 Wilson V. Berg 169 Woodworth et al. v. Seymour. . . 376 Worthy, Assignee, v. Benham, Sheriff 145 TABLE OF CASES CITED. A Adams t. DaTidson, 10 N. Y., 309 396 Adams V. Houghton, 3 Abb., N.S., 46 480 Adams y. Sodarmel, 19 Ind., 339. 196 Agra Bank v. Hoffman, 34 Ii. J. Oh., 385 122 Aldrich t. Campbell, 4 Gray, 284.... 124, 192 American Exchange Bank T. Julves, 7 Md., 380 291 Anderson t. Roberts, 18 Johns., 515 186 Andriot, 2 Daly, 28 321 Angell T. Bosenburg, 12 Mich., 841 285 Anon. -7. Gelpcke, 5 Hun, 245. . . 396 Anstey v. Harden, IB. & P., 124,..- 300 Astor V. Turner, 11 Paige, 436. . 302 Atkinson v. Derby, 7 H. & N., 934 364 B Baboock v. Booth, 2 Hill, 181. . . 448 Babcock v. Eokleir, 24 N. Y., 628. 385 Bailey, 58 How., 446 412 Baker v. Bliss, 39 N. Y., 70 337 Baldwin t. Johnson, Saxt., 441. . . 280 Baldwin v. Tynes, 19 Abb. Pr., 32 480 Ball V. Loomis, 29 N. Y., 413. ... 165 Banfield v. Whipple, 14 Allen, 13. 31 Bank of Augusta v. Erie, 13 Pet., 591 198 Bank of Mt. Joy v. Gish, 13 P. F. Smith, 13 , 121 Bank of Northern liiberties y. Jones, 6 Wright, 541 131 Bank of U. S. y. Housman, 6 Paige, 536 384 Bank of Utica y. Card, 7 Ohio, 170 189 Barbour y. Byerson, 16 Abb., 366. 424 Bardwelly. Perry, 19 Vfe., 393.. 359 Barney y. Baltimore City, 6 Wall, 380 375 Barney y. Griffin, 3 N. Y., 365. 345, 455 Barrett y. The Alton & S. K. R. OB., 13 111., 504 63 Bassett y. Marshall, 9 Mass., 313. 389 Bate y. Jordan, 11 N. Y., 337. 444, 448 Bayard y. Hoffman, 4 Johns. Ch., 450 276 Bayley v. Clark, 2 Browne, 276. . 366 Bean v. Bullitt, 7 P. P. Smith, 331 112 Beard y.' Kimbkil', 11 N.' H.','47i '. 138 Beardsley Scythe Co. y. Foster, 36 N.Y., 561 349 Beastou y. Farmers' Bank, 12 Pet., 133 489 Beokwithv. Union Bank, 9 N. Y., 311 196 Beekman y. Gibbs, 8 Paige, 511 . 343 Beeler y. Turnpike Co., 3 Harris, 163 50 Bell y. Fleming, 1 Beas., 14, 490. 131 Bell V. Lamprey, 53 N. H., 41. , 13 Bell y. Kewman, 5 S. & R., 78. . 859 Bellows y. Patridge, 19 Barb., 176 74 Benedict y. Huntington, 33 N.Y., 319 348, 394 Bennett y. Chapin, 8 Sandf., 673. 455 Bennett y. Cook, 43 N. Y., 537 ; 3Am., 737 13 Berkey y. Judd, 33 Minn., 287. . 34 Berry y. Arthur, 1 Green, 308. . . 39 Bigelow y. Polger, 2 Mete, 255. 49, 192 Bills y. Stanton, 69 lU. , 51 107 Blabon y. Lewis, 3 PhUa., 454 . . 113 Black's Appeal, 44 Pa, St., 503.. 359 Blakesley's Appeal, 7 Barr, 449. . 171 Blancke y. Rogers, ll C. E. Ctireen, 568 297 Vlll TABLE OP CASES CITED. Blight V. Schenck, 10 Barr, 285.. 152 Bockes V. Lansing, 74 N.T., 437. 344 Boese v. King, 78 N. Y., 471. . . . 462 Bolton V. Lawrence, 9 Wend., 435 ; 456 Bond V. Ward, 7 Mass., 123 440 Borland v. Mayo, 8 Ala., 104 487 Bosler v. Exchange Bank, 4 Barr, 32... 50,131 Bostwiok V. Bumett,18 Alb. L. J., 418 213 Bowman v. Bell, 14 Sim., 392. . . 204 Boyd V. Hind, 1 H. & N., 938, . . 306 Bradley v. Angel, 3 N. T. , 475. . . 44 Bradley V.Gregory, 2 Camp., 363. 300 Brady, 8 Hun., 437; 69 N. T., 215 325 Braiuerd v. Dunning, 30 N. Y., 311 ...394 Brazblow v. Brooks, 3 Head, 194. 125 Breed v. Lyman, 4 Allen, 170... 14 Brennan v. Willeou, 1 Am. Ins., 77: 4 Abb. N. C, 379: 71 N. Y., 502 129, 377, 424 Briggs V. Davis, 20 N. Y., 15 ; 21 ■ N. Y., 574.... 79 Brigham V. Tillinghaat, 15 Barb., 618 74 Brigham v. Tillinghasfc, 13 N. Y., 315 36, 405 BrinokerhofE v. Wemple, 1 Wend. , 470 79 Britton v. Lorenz, 45 N. Y. 51. 7, 432, 480 Brooks V. Marbury, 11 Wheat. , 78. 34 Brown v. Bisst, 1 Zab., 46 358 Brown v. Chase, Walker Ch., 43. 203 Brown v. Force,'? B. Mon., 357. 437 Brown V. Heathcote, 1 Atk. , 160. 313 Brown v. Smith, 7 B. Mon., 361. 437 Brown v. Staokpole, 9 N. H., 478. 301 Browne v. Bradley, 5 Abb., 141. 428 BrowneUv. Curtiss, 10 Paige, 210. 186, 277, 448 Browning v. Hart, 6 Ba,rb., 91. . . 186 BuUymore v. Cooper, 2 Lans. ,71. 428 BuUymore v. Cooper, 46 N. Y., 236 427 Bunch, 12 Wend., 380 455 Burtis V. Dodge, 1 Barb. Ch., 77. 456 Butler T. Lee, 3 Keyes, 70 456 Butler V. Ehodes, 1 Esp., 836. . . 301 C Cairns V. Chabert, 9 Paige, 160.. 455 Callaman v. Shaw, 19 la., 183. . . 303 Cammack v. Johnson, 1 Green Ch.,163 358 Camp V. Grant, 81 Conn. , 41 . . . . 359 CampbeU v. The Brie E. Co., 46 Barb., 540 -• lO» Campbell v. Woodworth, 34 N. Y., 304 345,394,455 Canal & Walker Streets, 18 N. Y.,406 105 Carpenter v. Koe, 10 N. Y., 327. ^ 257, 383 Carr v. Bank, 16 Wis., 50 388 Carraharan v. HIart, 21 Pa. St., 435 435 Carver's Appeal, 36 Leg. Int., 331. 236 Case V. Phelps, 39 N. Y., 164. 357, 382 Caskie v. Webster, 7 WalL, 131.. 464 Catlm V. Grissler, 57 N. Y., 363. 456 Chafifees v. Eisk. 13 Harris, 433. 113 Chamberlain v. West Transp..Co., 44 N. Y., 305 455" Chandler v. Bunn, Lalor, 169 311 Chase v. James, 16 Hun, 14 246 Chautauqua Co. Bk. v. Elsley, 19 N. Y., 369 34S Cheever V. The E. & B. E. E. Co., 39 Vt., 654 202 Choate V. Hathaway, 73 IlL, 518. 107 Chouteau v. Suydam, 21 N. Y., 179 395 Churchill v. Whipple, 41 Wis. , 611. 286 Claflin V. Maglaughlin, 15 P. P. Smith, 492 118 Clark V. Brooks, 1 Abb. Ct. of App. Dec, 35.5 456 Clark V. Iselin, 31 WaU., 360. ... 317 Clark V. Stanton, 1 Am. Ins. , 61 ; 3N. W. Eep.,28 89 Clarke v. Hawkins, 5 E. I., 219. . 135 Cockshott V. Bennett, 3 T. E., 763 : 363 Coine v. Weaver, 1 Am. Ins., 393. 401 Colyerv. Craig, 11 B. Mon., 73.. 44 Comrs. of Central Park, 50 N. Y., 493 105 Concord v. Atlantic Ins. Co., 1 Pet., 438 489 Conrad v. Bank, 1 Binn., 64 121 Cookv. Kelley, 14Abb., 466. .466, 480 Cook V. Tullis, 18 Wall., 333 313 Cortelyou v. Hathaway, 3 Stookt., 41 304 Cowan V. Stokes, 26 How., 84 . . 96 Cram v. Mitchell, 1 Sandf. Ch., 351 285 Cramond v. Bank of TJ. S., 1 Binn., 64 50 Crawford v. Austin, 34 Md., 49. . 33 Crawford v. Kirsky, 55 Ala., 383. 435 Crowe V. Picken, 4 Ves., 97 79 Crofut V. Brandt, 58 "N. Y., 106.. 456 Crosby v. Hillyer, 34 Wend., 280. 481 TABLE OF CASES CITED. IX Oroton Ins. Co., 3 Barb. Ch.,642. 896 Crowder, 3 Vern., 706 358 Crugerv. Halliday, 11 Paige, 314 78 Crumbauoh v. Kugler, 3 Ohio St. , 373 230 Curren, 8 Daly, 133 456 Currie v. Hart, 3 Saudf. Ch., 353. 385 Cartis y. HoUingsliead, 3 C. E. Green 358 Cuylerv. McCartney, 40 N. Y., 231 396 D Dale V. AUen, 4 Green!., 537 289 Dana T. Lull, 17 Vt., 390. 31 DarroW v.Bruff, 36 How. Pr., 479. 480 DarviU v. Terry, 6 H. & N. , 807 . . 31 Davidson v. Little, 10 Harris, 345. 47 Davis, 3N. B. R., 893 409 Deckert v. PUbert, 3 W. & S., 454 31 Deming V. Colt, 3 Sandf., 384 ; 3 Id., 393 31 Denman v. Boylston Bank, 5 Cush., 194 124 DePeyster. 4 Sandf. Ch., 511... 455 Dewey v. Moyer, 73 N. T., 70. . . 445 Dickerson v. Benham, 30 How., 343 373 DinkerhofE v. Ahlborn, 2 Abb. N. C.,73 101 Dole V. Olmstead, 41 111., 344. . . 183 Donaldson v. FarweU, 93 U. S., 631 313 Donaldson v. Wood, 33 Wend., 395 455 Dorsheimer v. Busher, 7 S. & R. , 9 193 Doty V. Brown, 4 N. Y., 71 377 Dow V. Platner, 16 N. Y., 563 . .74, 395 Downing v. Marshall, 37 N. Y., 380..: 456 Drake v. Rogers, 6 Mo., 317 31 Dreisbach v. Becker, lO Casey, 153 113 DnflEy v. Duncan, 35 N. Y., 187. 245, 455 Dundas v. Bowler, 3 McLean, 397. 198 Dunlap V. Hawkins, 59 N. Y., 343. 882 Duulevy v. Tallmadge, 32 N. Y., 457 349 Dunlop v. Rogers, 47 N. H., 281. 93 Dyer v. Clark, 5 Met., 562 280 E Earl V. Halaey, 1 MoCart., 333. .. 297 Eastman r. Bennett, 6 Wis., 333. 388 Edwards v. Coombe', L. B., 7 C. P., 519 149 Edwards y. Hancher, L. R., 1 C. P.D.,111 149 Ely V. Cooke, 28 N. Y., 365 61 Emanuel v. Bird, 19 Ala., 596. . . 359 Embry v. Robinson, 7 Humph., 444 267 Bngelbert v. Blanjot. 3 Whart., 340 112, 377 Eriokson v. Quinn, 15 Abb., N. S. , 166 •.... 344 Erwin v. XT. S., 97 XJ. S., 393. ... 371 Estabrook v. Messersmith, 18 Wis., 551 186, 391 Bstes T. Wilcox, 07 N. Y., 264. . . 350 Evans v. Chapin, 20 How. Pr., 389 424 Eyster y. Gaff. 91 U. S., 531 346 F Fairchild v. Gwynne, 16 Abb., 33. 431 Fallon's Appeal, 6 Wright, 235. . . 114 Farmers' & Mech. Bank's Appeal, 12 Wright, 57 50, 131 Farnam, 75 N. Y., 187 424 Farringtou v. Hogdou, 119 Mass., 453 .- 301 FellowsT. Stevens, 34 Wend., 394. 301 Finch v. Houghton, 19 Wis., 150. 303 Finney v. Finney, 4 Harris, 380. 113 Fisher v. Murray, 1 E. D. Smith, 841 31, 480 Flanigan v. Wetherill, 5 Whart., 285 113 Fletcher v. Morey, 3 Story, 555. . 409 FoUett y. Buyer, 4 Ohio St., 591 . 192 Fogarty y. Trust Co., 25 P. F. Smith, 135 121 Fort Stanwix Bk. v. Leggett, 51 N. Y., 553 444 Fowler, 5 Daly, 548 351 Fox's Appeal, 37 Leg. Int., 333. . 487 Fox v. Adams, 5 Green!., 245. . . 93 Francklyn v. Sprague, 10 Hun, 589 167 Frantz y. Brown, 1 Pen. & W., 357 133 Frazier y. Erie Bank, 8 W. & S., 18 131 Frederick y. Clark, 5 Wis.', 191. . 388 Freeman v. Pope, L. B., 5 Ch. App., 538 321 Pulton's Estate, 1 P. P. Smith, 304 50, 121 Funnell v. Nesbitt, 16 B. Men., 351 195 G Gardner v. Gardner, 7 Paige, 113. 449 Gardner y. Lewis, 7 Gill, 377 301 TABLE OP CASES CITED. Gamona v. Knight, 5 B. & C. , 671. 153 Ganetsonv. Brown, 2 Dutch., 438. 27b' Gasherie v. Apple, 14 Abb,, 64. . . 273 Gay V. Ide, 6 Cal., 99 204 Geery's Appeal, 43 Conn., 289 213 Geery v. Geery, 63 N. Y., 252. . . 161 Gere v. Murray, 6 Minn., 305 38 German Am. Bk. v. Morris Enn Coal Co., 68 N. Y., 585 455 Germantown R. Co. v. Fitler, 10 P. F. Smith, 181 485 Gibson V. Warden, 14 WaU., 244. 312 Giufcher v. Richmond, 1 Am. Ins., 246; 18 Hun, 232 395 Glendon Iron Co. v. Uhler, 25 P. P. Smith, 4G7 172 Good V. Cheaeman, 22 E. C. L., 91 806 Goodwin v. Mix, 38 111., 115 183 Gormley v. Potter, 29 Ohio St., 597 220 Goucelier v. Foret, Minor, 13 . . . 85 Granger v. Granger, 6 Ohio, 35 . . 195 Graves v. Hull, 27 Miss. , 419 ... . 125 Graydou v. Church, 7 Mich., 50. . 144 Greenleaf v. Edes, 2 Minn., 264 . 36 Greeuleaf v. Munford, 50 Barb., 543 109 Grover v. Wakeman, 11 Wend., 187 36, 155, 401 Gnillarder v. Howell, 35 K. T., 657 191, 464 sGuerin v. Hunt, 6 Minn. , 375. .34, 285 H Haas V. O'Brien, 66 N. Y., 597. 212, 3^9, 346, 378; 409 Hale v. Sweet, 40 N. Y., 97 428 Hall V. Hall, 2 McCord Ch., 269. 359 Halstead /. Halstead, 55 N. Y., 442 342 Hankey v. Smith, 3 T. R., 507 . . 123 Hanson's estate, 12 Yes., 348 122 Hardoaatle v. Fishsr, 24 Mo., 70. 180 Hardman v. Bowen, 39 N. Y., 196 7,421,478, 480 Hare v. Wallace, Am. Jjea. Cas., 802 167 Hark v. Gladwell, 49 Wis., 172 . , 478 Harris v; Burwell, 65 N. C, 584. 43 Harris v. Whitogmb, 4 Gray, 433. 289 Harrison v. Sterry, 5 Cranch, 289. 21 Hartshorn v. Eames, 31 Me., 93. 81 Haskins v. Aloott, 13 Ohio St., 210 5 Hasten v. Castner, 29 N. J. Eq., 536 261 Havemeyerv. Loob, 5 Abb. N. C, 838 456 Hawes v. Leader, Cro. Jac, 270. 275 Hawkins' Appeal, 24 Conn., 548. 213 Hayes v. Heyer, 3 Sandf., 284. . . 21 Henderson's Appeal, 7 Casey, 502. 112 Heushaw v. Wells, 9 Humph., 568 203 Herman, 53 How. Pr., 377 410 Higgins V. Pitt, 4 Exoh., 313 365 Hildreth v. Ellice, 1 Caines, 192. . 456 Hillyer v. Rosenberg, 11 Abb., N. S.,402 439 Hitchcock V. St. John, 1 HofE., 511 ;-l Hardy, 87 23 Hogan T. Hutton, Spenc. ,82 39 H^lbird v. Anderson, 5 T. E., 935 31 HoUisteV Bk.' 'v.' Vail',' '15 N.' Y.*. 593 456 Holmes v. Remsen, 4 Johns Ch., 460 93 Houe V. Henriquez, 13 Wend., 240 404 Hone v.' Woolsey, 2 Ed. Ch., 289. 163 Hooley V. Gieve, 82 N. Y., 625.. 474 Hopkins V. Langton, 30 Wis., 379. 486 Hosack V. Rogers, 11 Paige, 603. 293 Hosford V. Merwin, 5 Barb., 51.. 443 House V. MuUId, 22 Wall. ,42 376 Howell V. Ripley, 10 Paige, 48. . . 206 Howell v. Teel, 2 Stew. Eq., 490. 360 HowBon V. Hancock, 8 T. R., 575. 364 Hoyt V. Thompson, 19 N. Y., 207. 93 Hubbell v. Carpenter, 1 Seld., . 171 72 Hudson v. Maze, 4 IlL, 578. 155 Hughes V. Ellison, 5 Mo., 463 ... 21 Hutchinson V. Brown, 33 Wis., 465 7,286, 478. Hyde v. Olds, 12 Ohio St., 591. . 23 Hyman v. Kelley, 1 Nev., 179. . . 202 I Ingraham v. Geyer, 13 Mass., 146 93,191, 200 Innes v. Lansing, 7 Paige, 583. . . 161 Ireland v. Potter, 25 How., 173.. 245 Irwin v. Keen, 3 Whart., 347 377 J Jackson T. Mitchell, ISVes., 581. 366 Jackson V. Post, 15 Wend., 588.. 384 Jacobs V. Remsen, 36 N. Y., 668. 245, 455 Jay V. Slack, 1 South ., 77 39 Jeffreys v. Agra Bank, L. R., 2 Eq. Cas., 674 131 Jencks v. Alexander, 11 Paiffe. 619 : ^,'382 TABLE OP CASES CITED. XI Jenkins v. Fowler, 12 Harris, 308; 4 Casey, 176 173 Jerome v. MoOarter, 94 XT. S., 739 313, 346 Jewett V. Woodward, 1 Ed. Ch,, 195 404, 455 Johnson v. Herring, 10 Wriffht, 415 : 153 Jones V. Yates, 9 B. & C, 583 . . 391 Jordan v. Natl. S. & L. Bank, 74 N. Y.,467 388 Jordan y. Sbarlock, 1 Am. Ins., 48 ; 3 Norris, 368 135, 486 Juliand v. Eathbone, 39 N. T., 869 7, 78, 90, 129, 146, 378 Jnlves V. American Ezohange Bk., llMd.,173 391 K Kanaghan v. Taylor, 7 Ohio St., 134 199 Keep V. Lord, 3 Duer, 78 136 KeUy v. Crapo, 45 N. Y., 86. . . . . 93 Kemp V. Cumley, 3 Duer, 1 21 Kendig v. Dean, 97 TJ. S. 423 .. . 376 Kensley v. Cole, 16 M. & W. , 128. 73 Keir T. Blodgett, 48 N. Y., 63. 5G, 369 King V. Johnson, 5 Harr., 31 ... . 93 King V. Talbot, 40 N. Y., 76. . . . 395 King V. West, 10 How. Pr., 383 . 343 Kirby v. Ingersoll, Har. Ch., 173. 31 Kixby V. Sohoonmaker, 3 Baib. Oh., 46 : 418 Klaaber t. Charlton, 1 Am. Ins., 283 ; 45 Wis., 600. 1 . .284, 478 Klinckv. Kelly, 63 Barb., 623. . . 165 Kranse V. Beltel, SRawle, 199.. 128 Kyle V. Kyle, 67 N. Y., 400 449 L La Chevelier v. Lynch, Dong., 170 191 Lament v. Cheshire, 65 N. Y., 80. 344 Lane v. Lutz, 1 Keyes, 303 313 Lanningv. Streeter, 57 Barb., 83. 109 Lawrence t. Bank of the Bepub- lic, 35 N. Y., 330 109 Lawrence y. Dayis, 3 McLean, 177 198 Lazell V. Powell, Thomp. Cas., 198 253 Leach y. Kelsey, 7 Barb., 466. . . 186 Lederer v. K. E. Co., 38 Wis., 354 289 Leicester y. Bose, 4 East, 372.. . . 363 levy, 1 Abb. N. C, 177 446 Lewis V. Stout, 23 Wis., 235 478 Lindsay y. Jackson, 2 Paige, 581. 44, 388 Linford v. Linford, 4 Dutch., 113. 858 Livermore y. Ehoades, 27 How. Pr., 506 273 Liyiugstou y. Meldrnm, 19 N. Y., 440 343 Lloyd y. Bennett, 8 c! & P.',"i34. 158 Lockwood y. Beckwith, 6 Mich., 168 126 Lynch y. Crary, 52 N. Y., 181. . . 426 Lytle, 14 N. B. R., 457 410 M Maas y. O'Brien, 14 Hun, 95 101 McCabe y. Grey, 20 Cal., 509. .. . 43 McClung y. Johnson, 2 L. & Eq. B.,78 254 HcConnack's Appeal, 55 Pa. St., 253 359 McCune v. House, 8 Ohio, 144. . . 199 McDonald y. Blaok, 30 Ohio, 196. 195 MoBlwain y. Willis, 9 Wend., 548. 109, 349 McGlone v. Prosser, 31 Wis., 273. 7 McWhorter y. Benson, Hopk. Ch., 28 455 Malcolm y. Hodges, 8 Md., 418. . 391 Maltbiev. Hotohkiss, 38Conn.,80. 313 Mann y. Pentz, 3 Corns., 432 485 Many y. Scott, 1 Mod., 183 831 Marburyy. Brooks, 7 Wheat.,'556. 84 Marks' Appeal, 4 Noi-ris, 381 173 Marr v. Bank of West Tenn., 4 Cold., 471 343 Marry. Dungan, 11 S. & R., 75. 122 Martin V. Knnzmuller, 87 N. Y., 396 -.44, 194 Marvin v. Smith, 46 N. Y., 571 . . 79 Matlack v. James, 2 Beas., 136. 380, 358 Maughlin y. Tyler, 47 Md., 545. . 391 Mayer y. Hellman, 91 U. S., 496. 314, 339, 346, 410 Meacham y. Stemes, 9 Paige, 398. 244, 455 Meoh. & Traders' Bk. y. Dakin, 51 N. Y.,519; 8 Hun, 431 426 Meech y. Allen, 17 N. Y., 300. . . 133 Mellon's Appeal, 8 Casey, 121. . . . 151 Mendel y. Durbin, 26 Wis., 390. . 477 Metcall v. Van Brunt, 87 Barb., 621 162 MiUer y. Mackenzie, 13 N. B. R., 496 ; 3 W. Dig., 305 149 Miller y. Mackenzie, 3 Stew., 391. 276 Miller y. Receiver of Franklin Bk., 1 Paige, 444 343 Miller v. WUson, 15 Ohio, 108. ... 230 Xll TABLE OF CASES CITED. Milliken v. Dart, 26 Hun, 24 467 Mills V. Argall, 6 Paige, 577 162 Milne v. Moreton, 6 Binn. , 361 . . 93 Mims V. Armstrong, 31 Md., 87. . 139 Miners' Xatl. Bk., 7 P. F. Smith, 193 113 Mitchell V. Winslow, 3 Story, 630. 312 Mittuight V. Smith, 2 C. E. Green, 259 358 Morgan V. Bank of North America, 8S. &K.,72 133, 193 Morgan v. Skidmore, 55 Barb., 263 359 Morris v. Ward, 33 N. Y., 587. . . . 61 Morris v. Wheeler, 45 N. Y., 708. 456 Morrow v. Bright, 20 Mo., 299. . . 125 Morse v. Huntington, 40 Vt., 468. 73 Mosely v. Williamson, 5 Heisk, 278 243 Moses V. Thomas, 3 Dutch., 124. . 131 MuUen v. Wilson, 44 Pa., 413. 257, 384 Murphy's Appeal, 2 Pittsb. , 371 . . 113 Murray, 6 Paige, 304 416 Murray v. Snow, 37 la., 410 301 Murray v. Williamson, 3 Biou., 135 50, 133 MurriU v. Neill, 8 How., 414 359 Mutual Life Ins. Co. v. Bowen, 47 Barb., 618 343 Myers v. Davis,33 N. Y. , 489 . . 131, 193 Myers v. Bstel, 48 Miss., 373 203 Myers v. Kinzie, 36 JIL , 36 176 N National Bk. of Baltimore v. Sack- ett, 3 Daly, 395 480 National Bk. of Metropolis v. Sprague, 5 0.E. areen,13..183, 360 NelUs V. Clark, 4 Hill, 424 364 Newell V. Van Praagh, L. R., 9 0. P., 90 149 N. Y. 0. R. R. V. Marvin, 11 N. Y., 276 105 Nicholas, 15 Hun, 317 250 Nichols V. Kribs, 10 Wis., 76 393 Nichols V. MoEwen, 17 N. Y., 23. 245,455 Nicholson v. Leavitt, 6 N. Y., 510 36, 353, 405 Norman v. Thompson, 4 Bxoh., 755 300 Nye V. Van Husan, 6 Mich., 329. 139 o Onkley, 1 Am. Ins., 56 269 Ocean Bk. v. Oloott, 46 N. Y., 12. 847, 349 Ogden V. Murray, 39 N. Y., 203, 345, 455 Ogden V. Prentice, 33 Barb., 160. 196 O'Hara v. Jones, 46 111., 388. . :. 183 Oliver V. Townes, 14 Martin, 93. 199 Osborne v. Moss, 7 Johns., 161. 375, 448 P Paddleford v. Thaoher, 48 Vt., 574 301 Page V. Smith. 34 Wis. ,368 7 Palmer V. Meyers, 43 Barb., 509. 480 Parker v. Muggridge, 3 Story, 334 409 Parsons v. Bowdoin, 17 Wend., 14 456 Partridge v. Stokes, 66 Barb., 586 357 Pearpoint v. Crraham, 4 Wash., CO., 332 ; 31 Peck V. Jenness, 7 How., 613 409 Penniman v. Cole, 8 Met., 496. . 43 People V. Holbrook, 13 Johns., 90. 143 People V. Kent, 1 Doug., 43 143 People V. Smith, 45 N. Y, 783.. 483 People V. White,' 14 How. Pr., 600.... 324 People ex rel. Gelsten v. Brooks, 40 How. Pr., 165 103 Peters v. Sloan, 3 Veru., 438 133 Phillips V. Wooster, 36 N. Y., 413 384 Poorman v. Goswiler, 3 Watts, 69 50 Porter v. Clark, 13 How. Pr., 107. 448 Potter V. Brown, 5 East, 131 92 Powers V. Green, 14 111., 387 107 Price V. Barker, 4 Ell. & Bl. , 760. 73 Produce Bk. v. Morton, 53 How. Pr.,157 146 E Randolph v. Daly, 1 C. E. Green, 313 133, 360 Rapalje v. Stewart, 37 N. Y., 310. 349 Read v. Robinson, 6 W. & S. , 339. 152 Receivers v. Patterson Gas Co., 3 Zab., 238 134 Reginav. Piokerly, 9 C. &P., 134. 288 Reiohwald v. Gaylord, 73 lU., 503 107 Reiley v. Johnson, 33 Wis. , 379 . 393 Rex V. Rivera, 7C. & P., 177 388 Rex V. Smith, 1 Stark., 343 288 Rhoads v. Blatt, 16 N. B. R., 33. 138 Riches v. Evans, 9 C. & P., 640 . 82 Roberta v. Carter, 38 N. Y., 107. 196 TABLE 01? CASES CITED. XIU Robinson v. Gould, 11 Cush., 57. 366 Robinson v. Gregory, 29 Barb., 560 3.3 Rockwell V. Brown, 54 N. Y , 310 63 Rose V. Hart, 2 Smith Lead. Cas. , 293 197 Ruckerv. Robinson, 38 Mo., 154. 78 Rundlet v. Doll, 10 N. H., 458. . . 138 S Sands v. Codwise, 4 Johns. , 586 . 444 Savage v. Murphy. 34 N. Y., 508 ■ 257,883 Sawyer v. Hoag, 17 Wall., 610.. 486 Sawyer V. Turpin, 91 TJ. S., 114. 317 Sohafer v. Reilly, 60 N. Y., 01 . . 343 Sohell, 53 N. Y., 363 245 Schenok v. Dart, 22 N. Y., 420. . 455 Scott V. Coleman, 5 Litt. (Ky.l 349 138 ScuU V. Alter, 1 H.irr., 147 358 Sea Ins. Co. v. Stebbins, 8 Paige, 565 202 Shand v. Hanley, 71 N. Y., 310 257,388 Shaw, 18 Hun, 195 455 Shears v. Sorhinger, 10 Abb., N. S.,287 214 Sheldon v. Dodge, 4 Den., 217. .. 453 Sheldon V. Smith, 28 Barb., 593. 22 Shepard v. Trowgood, 1 T. & R., 380 74 Shepardson'a Appeal, 36 Conn., 33 313 Shepherd v. McBvers, 4 Johns. Ch., 136 78 Shields v. Barrow, 17 How., 130. 375 Shumway v. Bntler, 8 Pick., 443. 440 Shurts V. Howell, 30 K J. Bq., 418 261 Singerly v. t'ox. 25 P. F. Smith. 50 Smith V. Acker, 23 Wend., 653. . 313 Smith V. Bromley, 2 Doug., 696. 364 Smith T. Cuff, 6 M. & S., 160. . . 364 Smith V. Pelton, 43 N. Y., 419. . 388 Smith V. Johnson, 26 P. F. Smith, 191 172 Smith V. Mitchell, 12 Mich., 180. 139 Smith V. St. Louis Life Ins. Go. , 3Tenn. Ch., 737 242 Sortwell V. Jewett, 9 Ohio, 180. . 198 Southard v. Benner, 73 N. Y., 424 333 Speed v. May, 17 Pa. St.., 91 ... 464 Spencer v. Armstrong, 12 Heisk. , 707 361 Spofford V. Kirk, 97 U. S., 484. . . 371 Staats v. Bristow, 73 N. Y., 364. 333 Stair V. York City Bank, 5 P. F. Smith, 308 121 State ex yel. Cothren v. Lean, 9 Wis., 293 477 Steinman v. Magnus, 2 Camp., 124 306 Stewart v. Anderson, 6 Oranoh, 303 192 Stewart v. McMinn, 5 W. & S., 100 7 Storm V. Davenport, 1 Sandf. Ch.,135 277 Striker v. Mott, 28 N. Y., 82. . . . 62 Sttiker v. Stiles, 14 Pet., 323. .. 62 Stuart V. Commonwealth, 8 ■ Watts,74 50 Swartwout v. Curtis, 4 N. Y., 415.. 456 Syracuse, &c., R. R. Co. v. Col- lins, 1 Abb. N. C. 47 ; 57 N. Y., 641 78,139 T Taloott V. Rosenthal, 1 Am. Ins. 367; 22 Hun, 573 467 Taylor v. Cornelius, '10 P. F. Smith, 187 112 Taylor v. Jones, 42 N. H., 25. . . 440 Thatcher v. Candee, 4 Abb. Ct. App. Dec, 387 79 Thomas v. Davies, 11 Beav., 29. 205 Thompson v. Dougherty, 12 S. & R.,448 277 Thompson v. Hintgen, 11 Wis., 112 392 Thornton V. Davenport, 1 Scam., 296 53, 107 Thrasher v. Bently, 59 N. Y. , 649 ; 1 Abb. N. C, 39. .78, 139, 146, 213, 329, 346, 410, 434 Thurberv. Blanck, 50 K Y., 80. 426 Tilson v. Terwilliger, 56 N. Y., 273 396 Tilton v. Beeober, 59 N. Y., 176.. 456 Tomlinson's Appeal, 36 Leg. Int. , 354 226 Tompkins v. Hyatt, 19 N. Y., 584 456 Townsend v. Morrell, 10 Wend., 578 320 Townsend v. Steams, 33 N. Y., 309 348,894 Tripp V. Garey, 7 Greenl., 266. . . 289 Tubb V. Williams, 7 Humph., 36r 262 Tunno v. Trezevant, 3 Dessans., 264 369 Turner v. Jayoox, 40 N. Y., 470. 419 xtv TABLE OF CASES CITED. Twelves v, WiUiams, 3 Whart., 493 151 IT U. S. V. Canal Bank, 3 Story, 81. 490 TJ. S. v. Fisher, 3 Cranch, 390. . . 489 TJ. S. T. Gillis, 95 17. S., 407. . . . 371 U. S. V. Hool, 3 Cranch, 90 489 TJ. S. V. McLeUan, 3 Sumn., 350. 490 Upton V. Hubbard, 28 Conn., 274 93 VaJlanoe v. Miners' Life Ins. Co., eWright, 441 117 Van Alstyne v. Cook, 25 N. Y., 489 163 Van Buren v. Chenango Ins. Co., 12 Barb., 671 455 Vanderveer v. Conover. 1 How., 487 131 Van Dyke v. Christ, 7 W. & S., 373 151,277 Van Eeuren v. McLaughlin, 6 C. E. Green, 163 278 Van Vleet v. Slauson, 45 Barb., 317 434 Van Wyck v. Seward, 6 Faige, 62 384 Veiley v. Hoag, 24 Vt, 46 73 Villamy v. Noble, 3 Meriv., 621. 123 Von Hein v. Elkus, 8 Hun, 516.. 146 w Wade v. Wade, 2 Tenn. Leg. E., 10. 254 Wagstafl V. Lowerre, 23 Barb., 309 245,455 Wakeman v. Grover, 4 Faige, 33 36, 155,401 Walker v. McKay, 2 Met. (Ky.), 294 196 Warner v. Gouverneur's exrs., 1 Barb., 86 202 Watchman, The, Ware, 333 93 Watson, 69 N. Y., 536 393 Watson, 2 E. D. Smith, 439 334 Watson V. Bagaley, 3. Jones, 164. 114 Wayne v. Sands, 1 Freem., 351.. 366 Webb V. Eoff, 9 Ohio St., 430. .. . 320 Weinboltz, 1 Am. Ins., 65 269 Weinhaus, 5 Abb. N. C, 355 456 Welles v. March, 30 N. Y., 344. . 480 Wells V. Stewart, 3 Barb., 40 136, 196 Westoo'tt v. Gmin, 4 Duer, 107. . . 318 Wetmore v. Parker, 53 N. Y., 450 456 White V. Smith, 77 IlL , 354 64 Whittlesey v. Frantz, 74 N. Y., 456 138 Wiggins T. Armstrong, 2 Johns. Oh., 144 349 Wild V. Bergen, 16 Hun, 128. ... 356 WUder v. Keeler, 3 Pa%e, 167. . . 359 WUkes V. Ferris, 5 Johns., 335.. 138 WiUiams v. Ins. Co., 9 How. Pr., 365 7 Williamson v. Brown, 15 N. Y., 354 337 Williamson v. Brown, 3 Keyes, 486 192 Willink v. Vanderveer, 1 Barb., 599 443 Willis V. Henderson, 4 Scam., 13 183 WilHts V. White, 25 N. T., 577. . 93 WiUson V. Pearson, 30 HI., 81. 108, 176 Wilson V. Britton, 26 Barb.. 563. 273 Wilson V. Robertson, 31 N. Y., 587 419 Winsor v. MoLellan, 2 Story, 492 313 Wisham v. Lippincott, 1 Stockt., 353 13P,360 Woddrop v. Price, 3 Dessaus., 203 359 Wolverhampton Bk. v. Marston, 7H.&N.,148 33 Wood v. Dammer, 3 Mason, 308. . 485 Wood v. Dixie, 4 Q. B., 893 31 Wood V. Roberts, 3 E. C. L., 411 ; 3 Stark, 417 300, 306 Worman v. Woolfersberger's exrs., 7 Harris, 59 171 Woven Tape Skirt Co., 85 N. Y., 506 455 Wright V. Vernon, 3 Drew, 112. . 205 Yeatman v. Savings Inst., 95 TJ. S.,764 312, 346 York Co. Bk. v. Carter, 3 Wright, 446 117 Young V. Heermans, 66 N. Y.. 374 443 THE AMERIOAJS" INSOLVENCY REPORTS. VOLUME I. STTPBEME COURT COMMISSION— OHIO. Mat 15, 1878. An assignment for the benefit of creditors devotes all the property covered by it to the creditors who have their claims allowed pursuant to the act regxUating the administration of assignments, to the exclusion of those who do not. In an action brought by a creditor whose claim has been duly allowed, on an assignee's bond for a failure to account for any of the property assigned, the amount of recovery cannot be limited to an amount proportionate to the whole amount of the claims of all the creditors, including those not allowed as required by the statute, but the amount of recovery must be controlled by the proportionate amount of his claim to the whole amount of those only which have been presented and allowed pursuant to the statute. JOHN LAEJSr et al. v. WILLIAM JOHNSON. Eeeok to the Court of Common Pleas of Stark County reserved in the District Court. The original action was brought by William Johnson against John Lahn, U. K. Feather and H. E. Wise, in the Court of Common Pleas of Stark County, on a b^nd for fifty thousand .dollars given by Lahn as assignee of Nixon & Co., with the other defendants as his sureties, conditioned that -the said Lahn should well and truly, and according to law, perform all and singular the duties devolved upon him in the acceptance of the trust, and truly and correctly account for and pay over all moneys that came to his hands as such assignee. The assignee entered ixpon the discharge of his duties VOL. I. — 1 THE AMERICAN- INSOLVENCY REPORTS. Lahu et aL v. Johnson. April 20, ISTl, and received a large amoimt of property under the assignment. On the 2d day of September, 1871, the plain- tiff presented his claim of one thousand one hundred dollars against the assignors, duly verified by his oath, to the assignee for allowance, but the same was rejected by the assignee. He therefore brought suit against the assignee for its allowance, pursuant to the statute, and the court ordered the assignee' to allow the claim as a Ya,lid one against the assets of Nixon & Co., in his hands. After more than eight months had elapsed from the time of the acceptance of the trust by the assignee, the plaintiff demanded payment, which was refused by the assignee. The plaintiff thereupon caused a citation to be issued by the Pro- bate Court to compel him. to settle and account for the assets in his hands as such trustee, which he neglected and refused to do. The assignee having transferred all the assets back to the assignors, the plaintiff brought this suit on the bond. According to the inventory filed by the assignee, the assets of Kixon &. Co. that came to his hands amounted to seventy- seven thousand two hundred and fifty-two dollars and tliirty-two cents, and the debts amounted to two hundred and thirty-eight thousand and ninety-eight dollars and two cents, as shown by the books of the company. Only about forty thousand dollars of the debts were presented to the assignee for allowance pursu- ant to the statute. As to the disposition of the property, the assignee testified on the trial as follows : " On the 13th day of July, A. D. 1871, about three months after I was appointed trustee, the creditors, who represented at least two hundred and thirty-six thousand dollars of the in- debtedness of Nixon & Co., came to me in person and exhibited to me their claims, and requested me to reconvey and redeliver to said Nixon & Co. the property and effects included in their assignment, and gave me written releases from all liabilities or damages on account of their claims, if I would so redeliver to said company the property assigned by them. As there, were only two thousand doUare of debts against said company not so THE AMERICAN INSOLVENCY REPOUTS. Lahn et al. T. Johnson, represented, and as Mxon & Co. agreed to protect me against any liabilities on their account, I consented to and did, on the said 13th of July, reconvey and redeliver to said company all the property assigned by them, except four hundred dollars, the costs of the administration." On cross-examination of the witness defendants offered to prove that legal and valid debts of Nixon & Co., amounting to one hundred and ninety-eight thousand dollars over and above the forty thousand dollars which had been presented to the trustee, duly sworn to according to law, and which existed at the time of the assignment of Nixon & Co., were presented to the trustee by the bona fide creditors of Nixon & Co. before the time had expired in which creditors had to present their claims, verified according to law, under an arrangement they had made with Nixon & Co. to have the assignment vacated and the prop- erty reconveyed to Nixon & Co., but did not propose to show that said one hundred and ninety-eight thousand dollars, or any part thereof, had been verified according to law, and admitted that they were not ; whereupon the plaintiff objected to the admission of said testimony, which objection was sustained by the court ; to which opinion of the court the defendants ex- cepted. Defendants also, on cross-examination of said witness, offered to prove that the assets of said Nixon & Co. in the hands of the assignee would not have paid over thirty cents on the dollar of the indebtedness of said company had the trustee gone on and executed the assignment and settled up the estate, and had the creditors presented their claims verified according to law ; whereupon the plaintiff objected to the admission of said testi- mony, which objection was sustained by the court, to which ruling of the court the defendants excepted. And thereupon the defendants offered to prove that the assets of Nixon & Co. in the hands of the assignee would not pay thirty cents on a dollar of the indebtedness of Nixon & Co., whereupon the plaintiff objected to the admission of said testimony, which objection was sustained by the court, to which ruling of the court the defendants excepted. THE AMERICAN INSOLVENCY REPORTS. Lahn et al. v. Johnson. Whereupon defendants asked the court to charge the jury that, in ascertaining the amount due the plaintiff, they must find the value of the assets assigned to Nixon & Co., and the amount of indebtedness of the company, and that the plaintiff will be entitled to recover only his pro rata share of assets, which the court refused to charge ; but the court did charge the jury that in arriving at the amount of damages they should find the aggregate amount of the debts of Nixon & Co., that they had been presented and filed with the defendant Lahn as assignee, with an affidavit made and filed therewith setting forth that the said claim or claims were just and lawful, and showing what collateral or personal security, if any, claimants had or held for the same, or that he had no security whatever ; then find the amount of assets in the hands of, or that came to the hands of, the defendant Lahn, as assignee of Nixon & Co. ; then find the amount that defendant could have paid upon each of said claims presented as aforesaid ; and that they should con- sider no claim, except it was filed and sworn to as stated, as entitled to participate in the distribution of said assets or fund ; and that the amount, so found due on plaintiff's claim, would be the amount of his damages in this action, to which refusal and charge defendants excepted. The jury returned a verdict in favor of the plaintiff for the full amount of his claim, upon which judgment was rendered. Thereupon defendants prosecuted their petition in error in the District Court to reverse the judgment, on the ground that the Common Pleas erred in its rulings in regard to the admission of testimony and in its charge to the jury. The case was re- sei-ved in the District Court for decision in the Supreme Court. Day, J. — The right of the plaintiff below to recover is not disputed. The controversy relates to the amount of the re- covery. It is conceded that the assignee neglected and refused to account for any of the trust property as required by the con- dition of his bond. The statute provides that "any person injured by misconduct or neglect of duty of the assignee in regard to -said trust may bring an action thereon, ii^ his own THE AMERICAN INSOLVENCY REPORTS. Iiahn et al. y. Johnaon. name, against the assignee and his sureties, to recover the amount to which he may be entitled by reason of delinquency." The question then is, how shall the amount be arrived at to which the plaintiff was entitled by reason of the delinquency of the assignee ? The amount of the assignors' indebtedness greatly exceeded that of their assets ; but the amount of the assets in the hands of the assignee exceeded that of all the claims w^hich were presented to and allowed by him when he transferred all the trust property back to the assignors. This action of the assignee, it was true, was in compliance with^ the request of a large majority of the creditors, but so far as shown by the record, was not consented to by the plaintiff. It is claimed in behalf of defendants below, that the plain- tiff was entitled to recover so much only as he would have re- ceived if the trust property in the hands of the assignee had been distributed to all the creditors of the assignor in propor- tion to th^ir respective claims. This position can be sustained only upon the assumption that an assignee is bound to dis- tribute the assets pro rata among all the creditors, whether their claims are presented and allowed as rec[uired by the statute or not, and that the creditors whose claims are so pre- sented and allowed acquire no rights superior to those who do not conform to the requirements of the law. This claim is untenable. In RashiTisv. Alcott (13 Ohio St., 210) it was held that the " assignment devotes all the property covered by it to the creditors presenting their claims in pursuance of the statute," that the act in relation to assignments " regulates the administration of the assets assigned and points out the mode in which a participation therein may, and indeed must, be sought," and that " if a creditor does not acquiesce, his claim and his remedies thereon still remain, save that he cannot appropriate the assigned property to its payment, except in the manner and proportions therein prescribed." This is un- doubtedly a correct exposition of the statute. The creditors, then, who proved their claims and had them allowed pursuant to the statute, and who did not release their right in the trust, ■were to the extent of their respective claims entitled to the THE AMERICAN INSOLVENCT EEPOETS. Chnxclull, Assignee, t. Whipple et al. property assigned, to the exclusion of those who did not ac- quiesce in the assignment, and have their claims allowed under the. law, and who had moreover relinquished whatever contin- gent right they might have had under the assignment, ' The several rulings of the court below were substantiaUj in accordance with this yiew of the case. Judgment affirmed. StrPEBMB COUET— WISCONSIN. January Tebu^ 1877. Under the statute of Wisconsin a voluntary assignment for the benefit of creditors is invalid, unless it be shown, by the affidavits of the sureties on the bond of the assignee, that they have property to the requisite amount within ihe State. CEUR CHILL, Assignee, v. WHIPPLE et al. Action to recover the value of a stock of boots and shoes alleged to have been wrongfully taken by the defendants from the possession of the plaintiff, and unlawfully converted to their own use. Cobban & Dunn, with a view to insolvency, executed to the plaintiff, as assignee, a voluntary assignment for the benefit of their creditors of all their property not exempt by law from seizure upon attachment or execution. By virtue of such assignment the plaintiff took possession of the assigned prop- erty, including the goods in controversy. The assignment was executed, and a copy thereof filed in the proper office, in at- tempted compliance with the statute. (Laws of 1858, Chap. 64, Sec. 1 ; E. S., 411 ; Tay. Stats., 843.) The defendant Eichard- son, who was then the under-sheriff of the county where the goods were, seized the goods by virtue of a writ of attachment duly issued at the suit of a creditor of Cobban & Dunn, in au action by such creditor against that firm. This is the takinw complained of. The defendant Whipple was then the sheriff THE AMERICAN INSOLVENCY REPORTS. Churchill, Assignee, v. Whipple et al. of such county. A bond in the form prescribed by the statute, with two sureties, was also executed and filed in the proper office. Each of the sureties made an affidavit that " he is a freeholder and resident of the city Eau Claire, in the State of Wisconsin, and is worth the sum of two thousand five hundred dollars over and above all his liabilities, in property not exempt by law." No aflidavit of the sureties that their property was within- this State was presented to the Court Commissioner, who is named in the bond as obligee. The commissioner in- dorsed upon the bond his approval thereof, both as to form and sufficiency of sureties. Upon the foregoing facts, which are not disputed, the Court directed the jury to find for the defendants, and the plaintiff appealed from a judgment for the defendants entered pursuant to the verdict. Henry M. Hayden, for the appellant, contended : 1. That the assignment was not void for failing to state on its face that the assignee, was a resident of this State, the statute not re- quiring that fact to appear in that manner. 2. That it was- not void because the affidavits of the sureties do not show on their face that their property, to the amount required, is in this State; that the essential thing of which the. statute speaks is, that the officer who takes the bond shall be satisfied of that fact ; that such officer acts judicially in determining the su^^ci- ency of the bond, and has exclusive authority and jurisdiction to determine that question ; and such sufficiency, when so de- termined, includes the proper location of the property. {Hut- chinson V. Brown, 33 Wis., 465.) L. M. Vilas, for the respondent, held that no voluntary as- signment for the benefit of creditors, not made in strict com- pliance with the statute in that behalf, can be held valid as against creditors. [Harchian v. Bowm, 39 N. Y., 196 ; JuUancL V. Rathhone, id., 369 ; Britton v. Lorens, 45 id., 51 ; Williams V. Ins. Co., 9 How. Pr., 365 ; Stewart v. McMinn, 5 W. & S., 100 ; McOlone v. Frosser, 21 Wis., 273 ; Pac/e v. Smith, 24 id., 368; Sedgw. Stat, and Con. Law (2d ed.), 93); that as the THE AMERICAIT INSOLVENCY REPORTS. Churchill, Afisignee, v. Whipple et at. statute requires the assignee's bond to be executed and delivered to a county judge or court commissioner who is not a creditor of the assignor, the fact so required should appear from the bond itself (by the assignor's or commissioner's certificate an- nexed to the bond and assignment), or at least should have been shown at the trial of this action by some other competent proof ; and that the assignment here was invalid under Chap. 64, Laws of 1858, because the officer did not certify that he was satisfied by the affidavits of the sureties that their property within this State was worth the amount specified in the bond, and because, in fact, the affidavits did not show such to be the case. {Hutchinson v. Brown, 33 Wis., 465.) Lton, J. — The statute which must control the determination of this appeal (Laws of 1858, Chap. 64, Sec. 1) is as follows: " All voluntary assignments or transfers whatever, of any real estate, chattfels real, goods or chattels, rights, credits, mon- eys, or effects, hereafter made within this State, for the benefit of creditors, or with a view to insolvency, shall be void as against the creditors of the person making the same, unless the assignee or assignees shall be residents of tliis State, and shall, before taking possession of the property assigned, and before taking upon himself, or themselves, the several trusts conferred upon him or them by the instrument of assignment conveying, and assigning such property or appointing such assignee, exe- cute and deliver to the county judge or court commissioner of the county in which such assignor, or some one of the assignors, at the time of the execution of such instrument of assignment shall reside, not .being a creditor of such assignor, a bond in such sum, not less than the whole amount of the nominal value of the assets of such assignor, which value shall be ascertained by the oath of one or more witnesses, and of the assignor, with two more sufficient sureties, freeholders of this State, who shall eash testify as to his responsibility, and by several affidavits satisfy the officer taking such bond that the property of such sureties (being within this State) is worth in the aggregate the sum specified therein." The balance of the section prescribes THE AMERICAN INSOLVENCY REPORTS. '9 Churchill, Assignee, v. Whipple et al. the condition of the bond. The case turns upon the question of the validity of the assignment as against creditors of the as- signors. If this is valid the judgment is wrong and must be, reversed ; if invalid as to such creditors, the judgment should be aflBrraed. It is not denied that if, in the execution of the assignment, there was a failure to comply with any requirement of the above statute, the assignment is void. There was no affidavit of the sureties presented to the court commissioner taking the bond that they had property in this State worth in the aggregate the sum specified in the bond. If, therefore, the statute requires that fact be shown by the several affidavits of the sureties, the assignment is void, and the judgment should not be disturbed. Notwithstanding the very ingenious argument of the learned counsel for the plaintiff in support of the opposite view, it seems very clear to our minds that the statute requires such fact to be shown by affidavits of the sureties, and that in no other way can it be made to appear that they have the requisite property in this State. The plain meaning of the statute is, that the assignment shall be void unless the sureties shall satisfy the officer taking the bond that they have the requisite amount of property in this State, and that this can only be done by the affidavits of the sureties themselves. Without such affidavits the officer cannot be satisfied of the fact so as to give validity to the assignment. To hold otherwise would, it seems to us, be doing violence to the plain language of the statute, as well as to the manifest intention of the Legislature. The statute was enacted for the protection of the creditors of persons in failing circumstances who might see fit to make a voluntary assign- ment of their property for the benefit of their creditors. Its principal object and purpose is to secure the proper appropria- tion of the debtor's property towards the payment of his debts. Hence, the Legislature carefully provided that the assignee who takes the property and its proceeds shall give ample secu- rity for the performance of his trust, and to that end special precautions were prescribed to prevent the acceptance of irre- sponsible sureties. The affidavits of the sureties furnish the rO THE AMBRICASr INSOLVENCY REPORTS. Bell T. Lamprey. best evidence of the location of their property, if not of its value, and, if willfully false, perjury may be assigned upon them. Such afEdavits are valuable guaranties to the creditor of the sufficiency of the sureties, and it accords vi^ith the policy and purpose of the statute to require them to be made as con- ditions precedent to the validity of the assignment. In view of these considerations, we should be strongly inclined to con- strue the statute in the same way, even though its language was doubtful or ambiguous on the subject. For, in so far as the statute seeks to enforce the proper application of the trtist funds in the hands of the assignee, it is remedial, and should be liberally construed. The foregoing views are not in con- flict with the decision of this court in Hutchinson v. Brown (33 Wis., 465), although the learned counsel for the plaintiff relied greatly upon that case to sustain this assignment. There the assignment was attacked because the. affidavits failed to state that the property of the sureties was not exempt from seizure on execution, but the assignment was upheld on the express ground that the statute does not require that fact to appear in such affidavits, and hence, that a proper justification in that respect should be pi-esumed. Judgment affirmed. SUPERIOR COURT OF JUDICATURE— NEW HAMPSHIRE. August 10, 1876. Under the General Statutes of Massachusetts, a discharge in insolvency is a bar only as to debts contracted by the debtor within the State, and whUe an. inhabitant of the State. BELL V. LAMPREY. Assumpsit on a promissory note, of which the following is a copy : " I-Iaveehill, July 7, 1857. " Two months after date, I promise to pay to the order of Joseph Fitts eleven hundred dollars. Yalue received. "Indorsed, J. F. E P '' THE AMERICAN INSOLVENCY REPORTS. 11 Bell V. Lamprey. It was admitted that the plaintiff of record had no interest in the note, which had been indorsed to enable him to com- mence the suit in his own name, and that Joseph Fitts had been all the time a citizen of Massachusetts. The defense was, 1st, the statute of limitations ; 2d, a dis- charge under the Insolvent Law of Massachusetts. The facts in regard to the statute of limitations were, that the defendant was not openly and notoriously in the State of New Hamp- shire for the space of six years, during the time between the maturity of the note and the date of the writ ; also, that, reck- oning by the number of secular days in the year, he was so present more than six years during the same time ; also, that, reckoning by the number of business hours in a day, he was so present in the State more than six years. In^regard to the discharge in insolvency, it appeared that, at the time of making the note, which was made in Massachu- setts, the defendant was a citizen of New Hampshire ; that, at the titne of the commencement of the proceedings in insol- vency, and until his discharge, he was a citizen of Massachu- setts ; that the plaintiff had other notes against the defendant, which were proved in insolvency, but that the note in suit was not so proved. There being no assets, the defendant could not have his discharge without the written assent of a certaiin por- tion of his creditors. The plaintiff signed such assent. The assent was in the fqllowing terms: "The subscribers, cred- itors of the said insolvent debtor, whose claims have been proved and allowed against his estate, hereby signify their assent to his receiving his certificate of discharge." The cer- tificate of discharge purported to discharge the defendant from all his debts, which have or shall be proved against his estate, and which are founded on any contract made by him within the State, or to be performed within the same, made since the last day of July, 1838, and from all debts which are provable, as aforesaid, and which are founded on any contract made by him since that date, and due to any persons who are resident within the Commonwealth, being the day of the first publica^ tion of notice of the warrant for the seizure of the defendant's 12 THE AMERICAN- INSOLVENCY REPOETS. Bell V. Lamprey. estate. This certificate was substantially the same as that pro- vided by the original Insolvent Law of Massachusetts, passed in 1838, and corresponded substantially with that pa:rt of the Law of 1838 quoted below, which defined and determined the effect of the discharge. That law originally contained this clause : " The debtor shall be thereupon wholly and absolutely disicharged from all his debts, which shall at any time be actually proved against his estate, assigned as aforesaid, and from all debts which are provable under this act, and which are founded on any contract made by him after this act shall go into operation, if made within the Commonwealth, or to be performed within the same ; and from all debts which are provable as aforesaid, and which are founded on any contract made by him after this act shall go into operation, and due to any person who shall be resident within the OommonwSalth at the time of the first publication," etc. By Statute4855, Chap. 363, it was provided that " Ifo person shall hereafter take the benefit of the Insolvent Laws who was not, at the time the debts from which, he seeks to be discharged were contracted, an inhabitant of the State, and who is not also, at the time of instituting the proceedings for the purpose of taking the benefit of said acts, an inhabitant of this State." No change was made by this statute in the form of the cer- tificate, or in that part of the Statute of 1838 which declared the effect of a discharge, so that any person who conid bring himself within this statute so as to take the benefit of the In- solvent Laws would, if discharged, be as fully discha,rged as before that statute. By the General Statutes, enacted in 1859, Chapter 118, See. 17, it was provided that « Any inhabitant of this State, owing debts contracted while such inhabitant^' etc., " might apply," etc. By the same act, Sec. 76, it was provided that the debtor should be discharged -'from all debts provable under this chap- ter, and founded on any contract made by him subsequently to the last day of July, 1838, and while an inhabitant of this State, if made within this State, to be performed within the THE AMERICAN INSOLVENCY RBP0KT3. 13 Bell V. Lamptey. same, or due to any persoTi resident therein at the time of the first publication of the notice of the issuing of the warrant." The form of the certificate of discharge was not substan- tially altered. The defendant's proceedings in insolvency were commenced and completed under General Statutes of Massachusetts, Ch. lis ; and the question which arose was as to the effect of his discharge under this statute. The case was transferred by Rand, J., with the provision that for certain specified pur- poses, at the election of either party, the case should be dis- charged and the action stand for trial, otherwise judgment should be ordered in accordance with the finding of the-court on the statement of facts contained in the printed case. Marston, Small <& Wiggin, for the defendant. Hatch and Charles U. Bell, for the plaintiff. Gushing, J. — This case has been argued at great length and with great ability by the counsel on each side. In the view taken of the case, the points taken by counsel will become apr parent. Under the decision in this case, reported in 52 N. H., 41, on the Statute of Limitations, the only question which arises is as to the computation of time. The defendant contends that, as no service could be made on Sunday, the Sundays should not be taken into considera- tion in ascertaining the number of years during which he had been present in the State openly and notoriously, so that the year would consist of three hundred and thirteen days instead of three hundred and sixty-five, or of hours enough to make three hundred and sixty-five days of ten houi's each. In the case of Bennett v. Cook (43 E". Y., 537, 3 Am. E., 727), this very point was substantially decided. In that case the defendant, being resident in New Jersey, had for seven years done business in the city of New York for about the same length of time each day, and, except a very few days when absent from sickness or unavoidably detained, for upwards of 14 THE AMERICAN INSOLVENCY EXPORTS. Bell V. Lamprey. seven years. He went to New York City openly and publicly, had his office there with his name thereon, and had no other place of business. Daring all that time, however, he resided in Jersey City. Reckoning ten hours to the day, and omitting the Sundays, he would have made out the six years' presence in New York ; but it was held that the statute had not barred the claim. The principle of that decision, if I can understand it, is that the time necessary to bar the claim must bo six whol^ years of three hundred and sixty-five days in common years, and three hundred and sixty-six in leap years. I think the same principle determines this case, and that the action was not barred by the statute of limitations. It seems sufficiently clear also that, according to provisions of the Massachusetts Insolvent Law in force at the time of the defendant's proceed- ings in bankruptcy, the certificate did not bar this debt, because, although it might come within the terms of the certificate, it does not come within the terms of the statute limiting and determining the effect of the discharge. This section in the statute succeeds that in which the form of the certificate is enacted, and I think must be construed to control and limit the certificate . Against this view is cited the case of Breed v. Lyman (4 Allen, 170). This case was decided after the passage of Gen. Stats., Chap. 118 ; but, as I understand the case, on facts arising before, and the effect of which was determined under the statutes in existence at the time. ' As I understand that ease, it was objected that no person under tlie Statute of 1855 could take the benefit of the Insol- vent Laws, who was not, at the time all the debts from which he sought to be discharged were contracted, an inha'bitant of the State. It was held by the court that it was sufficient if soTtie of the debts were so contracted. The defendant having thus brought himself within the category of those who might apply, the effect of his discharge was governed by the law as it was when he commenced his proceedings, and the debt in suit was held to be barred. The court fortified its construction by referring to Sec. 16 THE AMERICAN nSTSOLVENCY REPORTS. ' 15 Bel] V. Lamprey. Chap. 118, Gen. Stats., which determined who might apply for the benefit of the law, but did not in any way allude to the effect of Section 76 upon the discharge. The case of Breed v. Lyman, therefore, cannot be cited as an authority on the effect of the discharge, under General Statutes, Chap. 118. The debt in suit was not a contract made while the defend- ant was an inhabitant of the State of Massachusetts, and is not embraced in Section 76 of the General Statutes 6f Massachu- setts, Chap. 118, and is not barred by the discharge. It is also said for the defendant that the plaintiff assented to his dis- charge ; but I cannot understand that the assent goes any fur- ther than the discharge. By its t&rms I do not understand that the subscribers recite that all their claims have been proved, but that they have some claims which have been proved and allowed ; and the assent must, I think, be understood to be limited to the legal effect of the discharge. It is also said that the plaintiff, by proving some claims, has come in Voluntarily to take the benefit of the act, and there- fore waived his right to object to the discharge of the claims not proved. I do not think that a party resident within the State, and subject to its process, can be said to come in volun- tarily. If he lived without the jurisdiction, where the process of the court could not run, it might with truth be said that, if he came in, he came in voluntarily ; and in such case he might well he held to have waived his objection.. It is also said that it would operate, as a fraud upon the other creditors to permit the plaintiff, after assenting to the discharge, to hold back a part of his claim, because it would lead them to suppose that he had assented to a complete dis- charge when he had not ; and that class of cases is citeji where it is held that creditors, parties to a compromise with a debtor, cannot lawfully stipulate for advantages over other creditors. I tl>ink, however, those cases do not apply,' because I think that all the creditors must be taken to have understood and signed the assent in its legal acceptation. The defendant's counsel, at the end of their last brief, sug- 16 THE AMERICAN INSOLVENOT REPORTS. Forkner, Assignee, v. Shafer et al. gest that the discharge in Breed v. Lyman was granted July 16, 1860, after the general statutes alluded to went into opera- tion. I think, .however, that the case of Breed v. Lyman assumes that the effect of the discharge must depend upon the law in force at the time the proceedings in insolvency were commenced. I have, therefore, not undertaken to investigate that ques- tion, though it certainly seems to me, on general principles, difficult so to construe these statutes as to make the insolvent's discharge less effective when it was granted than it would have been by law as existing at the time of his application. It is also objected by the plaintiff that, according to the defendant's constrnction of the statute, it would be not in accordance with the Constitution of the United States. That construction not having been adopted, the question of constitutionality does not arise. There should be judgment on the report of the referee for the plaintiff, unless the defendant elects a trial. Ladd and Smith, JJ., concurred. SUPREME COTTRT— INDIANA. ^ Mat Tbkm, 1877. Under the statnte of Indiana " providing for voluntary assignments " (1 R. S., 1876, p. 143), the title to the property assigned does not pass to the assignee until the assignment is duly recorded. The assignee cannot replevy personal property from an officer who holds the same by virtue of an execution levied prior to the recording of the assign- ment. FORKNER, Assignee, v. SEAFER et al. W. A. Biclcle and 8. A. ForJcner, for appellant. J. Taryan, J. L. Yanyan, B. Harrison, O. G. Hines and W. H. H. Miller, for appellees. Perkins, J. — Action to recover possession of personal prop-' erty, commenced on the 22d day of September, 1873. THE AMERICAN INSOLVENCY REPORTS. Forkner, Assignee, v. Shafer et al. Answer in two paragraphs : First, the general denial ; and second, that on the 2d day of August, 1873, two of the defen- dants, Paiily and Caldwell, recovered a judgment befoi-e the Mayor of Kichniond, Wayne County, Indiana, against Minnie Wedekind, for, etc. ; that, on the same day, an execution was duly issued thereon, and levied upon the goods sought to be recovered in this action, as the property of said Wedekind, by Shafer, the Marshal of liichmoud, and the co-defendant, in this suit, of Pauly and Caldwell. The plaintiff replied to this paragraph of answer, that said Wedekind, on the 1st day of August, 1873, made an assignment, under the Act of 1859 (1 R. S., 1876, p. 142), accompanied by a schedule, etc., of all her property, to the plaintiff, as assignee, for the benefit of all her creditors, which assignment was fijed on the said 1st day of August, 1873, in the clerk's ofiice of the Circuit Court of Wayne County, Indiana ; that possession of the property was taken by the assignee, of which defendants had notice, and that on the 5th day of August, 1873, the assign- ment was filed in the recorder's office of said county, and re- corded. The deed of assignment and schedule were made exhibits. A demurrer was sustained to this reply, and exception taken. A reply in denial of the second paragraph of answer was then filed. Trial; judgment for defendants. The evidence is not in the record. The only question presented is, upon the sustaining of the demurrer to the reply. We think the ruling on the demurrer was correct. The statute under which the assignment was made {supra), Section 2, declares that all assign ments under this act "shall, within ten days after the execu- tion thereof, be filed with the recoi'der of the county in which the assignor resides,, whose duty it shall be to record the same," etc., and that " no assignment under this act shall convey to the assignee any interest in the property so assigned until such assignment is recorded as provided for in this section." The assignment in this case was not recorded till the 5th of August, 1873, three days, after the pj-operty had been legally VOL. I. — 2 18 THE AMERICAN INSOLVENCY REPORTS. In re Holt. taken by the defendants on execution. Till such filing, the plaintiff, Forkner, acquired no title, and title subsequently ac- quired would not divest a prior legally acquired lien. It was within the power of the Legislature to fix the time when, and the conditions upon which, property assigned under the act in question should vest in the assignee. The Legislature has regulated these matters in no ambigu- ous language. There is no room for construction. The title acquired by the plaintiff on the 5th day of August was subject to the prior lien and right of possession of the defendants, and he could not, therefore, recover in this suit. Judgment affirmed with costs. SUPREME COURT— IOWA. December Term, 1876. Under the statute of Iowa, creditors who fail to file their claims with the assignee within three months after the first publication of the notice of assignment are not entitled to share pro rata in the first dividends. Matter of the assignment of HOLT. The notice of assignment was published first the 28th day of Janiiary, 1876. Notice was mailed to each creditor the 29th day of January, 1876. J. Gr. Abell filed a claim May 22d, 1876, and moved for an order that he be paid a "pro rata share. Other creditors who had filed claims vvithin three months from the date of first publication resisted said Abell's motion on the ground that his claim was filed more than three months after the date of first publication. The District Court sustained the motion. The other creditors appeal. ClMrk & Haddock, Baker <& Ball, Finch <& Matthews, for applts. Edmonds c& Younkin, for appellees. Adams, J.— By Section 2120 of the Code it is made the duty of the assignee, at the expiration of three months from THE AMERICAN INSOLVENCY REPORTS. 19 In re Holt. the time of first publishing notice, to report and tile with the clerk of the court a list, under oath, of all such creditors of the assignor as shall have claimed to be such, with a statement of their claims. By Section 2121 it is provided that any person interested may appear within three months after filing such report, and file with the clerk exceptions to the claim of any creditor. There is no provision requiring the assignee to make any other report within any specified time. On the iJther hand, it is provided by Section 2122 that, if no exceptions are filed, the court shall order the assignee to make, from time to time, fair and equal dividends among the creditors, in proportion to their claims. It is evident that this may be done before the expiration of three months from the last publication, if publi- cation be continued long enough, and we see no reason why the assets may not be exhausted before that time. It may be claimed that, conceding this to be so, the claimant who files his claim between the expiration of three months from the first publication and the expiration of three months from the last publication should share fro rata in such assets as are not ex- hausted. The answer to that is, that any one interested has three months to file exceptions to such claim after it has been reported by the assignee, and there is no provision as to when such report should be made. Those who file within three months from the first publication file in time to enable their claims to be embraced in the assignee's report, which must be made within a required time. Why should payment to them be delayed to enable others to share ^w rata whose claims are not filed soon enough to be reported ? Why, indeed, should a report be required before tlie claims are all in which are en- titled to share pro rata in the first dividends ? If Section 2126 stood alone we should be inclined to think that claims filed within three months from completed publication should par- ticipate in the first dividends; but we cannot put this con- struction upon that section consistently with the other sections "'to which we have referred. We think the District Court erred in sustaining the claimant's motion. Reversed. 20 THE AMERICAN INSOLVENCY REPORTS. Holland et al. v. Drake et al. SUPREME COURT— OHIO. December Tbkm, 1876. One member of an insolvent firm cannot, either before or after disaolution of the partnership, make a valid assignment of all its effects for the benefit of creditors against the will of a copartner, or without procuring his assent when present and accessible. If such other partner subsequently ratifies the assignment, the ratification relates back and takes effect from the time of executing the assignment ; but not so as to defeat the rights of third persons bona fide acquired in the meantime. JOBIf HOLLAND and, WILLIAM B. FETTIT, v. J.M.DRAEEetal. Teact and McKay were partners in the "grain and feed business," in the city of Cleveland, Tracy being the active and managing member. On the 13th of December, 1867, the firm then being insolvent, McKay caused a notice of the dissolution of the partnership to be published in the city papers; and afterwards, on the 20th of the same month, he executed to J. M. Drake, and filed in the Probate Court, a general assignment of the property and effects of the company, for the benefit of all its creditors. On the last-named day, but; subsequently to the execution and filing of the assignment, Holland and Pettitt caused part of the property so assigned to be seized upon an attachment issued in an action which they had lately brought against the firm, and in which they afterwards recovered judg- ment. Prior to the execution of the assignment Drake had consented to act as such assignee, but the assignment was not in fact delivered to him, or he made aware of its existence, tmtil some days after the levy of the attachment ; but, when notified thereof, he accepted the same, and qualified as such trustee. At the time McKay executed the assignment, his co- partner, Tracy, was in the city, bat was not consulted, and when informed by McKay of its execution, refused to assent, and he did not assent until some time after the levy of the at- tachment. By mutual agreement between the parties inter- THE AMBEICAN INSOLVENCY REPORTS. , 21, Holland et al. t. Drake et al. eeted, Holland and Pettitt, Drake and McKay, the attached property was then delivered by the sheriff to Drake, as as- signee, " to be sold by him instead of the sheriff," and the pro- ceeds to " stand in place of the property, and be applied in pay- ment of Pettitt and Plolland's judgment, in case the court should hold the attachment a good lien." * The assignee sold the property in pursuance of this agree- ment, and brought the money into the Pi'obate Court, and Hol- land and Pettitt filed their petition therein against Drake, McKay and Tracy, asking to have the money adjudged and paid to them, in preference of the other creditors. ' On hearing of this petition it was dismissed, the Probate Court holding that the assignment had precedence of the at- tachment, and that the fund should be distributed ^o rata among all the creditors. On proceedings in error this judg- ment was affirmed 'in the Common Pleas, and Holland and Pettitt, having iiled a petition in error in the District Court to reverse the judgment of affirmance, the case was reserved for decision here. Eatep c& Bwrke, for plaintiff in error. The important question in this case is, whether one partner, against the refusal of his copartner to join therein, can make a valid assignment of the partnership assets to a trustee of his own selection. We maintain he cannot, and refer to the following authori- ties :. Bnrrill on Assignments, 43-65 inclusive ; Harrison v. Sterry (5 Cr., 289) ; Fearjpomt v. Graham (4 Wash. C. C, 232) ; Deckert v. Filbert (3 W. & S., 454) ; Kirly v. Ingersoll. (Har. Ch., 172) ; Hughes v. Ellison (5 Mo., 463) ; Drake v. Jiogers (6 Mo., 317) ; Dana v. Lull (17 Vt., 390) ; Deming v. Colt (3 Sandf., 284 ; 2 ib., 292) ; Hayes v. Heyer (3 ib., 284) ; Kemp v. Ga/rnley (3 Duer, 1) ; Fisher v. Murray (1 E. D. Smith, 341). EhjaeU db Marvin, for Drake, The only objection that can be raised to sa;id assignment is 22 THE AMERICAN IITSOLVENCT EEPOBTS. Holland et al. t. Drake et al. that it is a fraud on the rights of the partners, inasmuch as it destroys the partnership. If this is a wrong, it certainly does not injure the creditors, and neither of the partners make any complaint. The partner who was not consulted is the only person who has a right to complain. No one else can, for he alone was injured. The court will sustain an assignment made by one partner for the benefit of all the creditors. (Burrill on Assignments, 42-44, 51.) No one but an absent partner can question the validity of an assignment executed by his copartner. It is not void "j>ej* se," but only voidable at the election of the absent partner. (4 Washington 0. C, 232 ; Sheldon v. Smith, 28 Barb., 593 ; 4 N. T. Digest, 191, 311). As to a subsequent ratification, see 5 Hill., 107 ; Story on Assign., Sees. 239-244. Admitting that one partner cannot in law make such an assignment, yet he might, in view of the fact that the firm was insolvent, file his bill in equity, asking that the firm property might be sold for the benefit of all the creditors. And if he has done what a court of equity would have done, then the court will sustain the act. Prentiss, JBaMwin c& Ford, for defendants in error. 1. This case, so far as the power of one partner, McKay, is concerned, to make a general assignment of all the personal property of a firm consisting of two partners, does not raise the abstract question of such a power in Ohio under our law forbidding preferences, and making a ratable and equal distri- bution ; but if it did, there is very much to be said in favor of such a power. But this case stands upon the following circum- stances, differing it from the mere abstract question : 1. The firm was insolvent. 2. An attachment had been got out. of course, for fraud, and that of Tracy, the partner who, it is claimed, did not join in the assignment. 3. Tracy was ap- plied to to join, and assented, but then expressed a wish to see his THE AMERICAN INSOLVENCY EEPOETS. 23 Holland et al. v. Drake et aL counsel about it, and after doing so declined, and subsequently deliberately assented again. He never objected to it, and his subsequent express ratification of it made it good from the be- ginning. 4, "Was it a lien or incumbrance plaintiffs" in error had, after the shei-iff gave up the property ? The attachment was gone ; if plaintiff had anything, it was an equity, so that a Court of Chancery could have enforced their remedy, and that court only, and the Probate Court could not — the expression lien or incumbrance referring to some plain legal right. It seems plaintiffs are unwilling to recognize the assignee as such, under this assignment, and place the attached property in his hands, giving up the attachment ; but they say they have an agreement from him that he will not do his duty, and administer the assignment as the law requires him to do, but do so for their exclusive benefit. No court of equity would ad- mit this as a good title for relief. Again, when the motion to dissolve the second attachment was declared for plaintiffs, they had no subsisting attachment, for it was already dissolved by their own act of giving up the property, and the refusal of the court to dissolve it, on the ground that Tracy was guilty of no fraud, would not give vitality to it. And now plaintiffs call on the Probate Court to require the assignee to violate his duty as such — go on and sell the attached property after the sheriff has surrendered it, and account to them for the whole of it, because he has promised to do so. Why did not they have the sheriff hold on to it if they had a good title ? "Why did they seek to entrap the assignee into an agreement contrary to his duty, and use him as their mere in- strument ? The contract and promise were void, against public policy, and against the spirit of the statute, and against the rights of the rest of the creditors. And there was no lien or incumbrance, and no remedy, unless to go into a court of equity and move there. Hyde v. Olds (12 Ohio St., 591) ; Story on Part., 322, 327, 328 ; HitoKcock v. St. John (1 Hoffm., 511 ; 1 Hardy, 87) ; Burrill on Assign., 51, 306, 340 ; SheUon. v. Smith (28 Barb., 593) ; Rohimon v Gregory (29 Barb., 560). 24 THE AMERICAN INSOLVENCY REPORTS. Holland et aL t. Drake et aL Welch, J. — The important question in the case is, whether one member of an insolvent firm, either before or after disso- lution of the partnership, can make a valid assignment of all its effects for the benefit of creditors against the will of a copartner, or without procuring his assent when present or accessible. Until this question is decided in the negative, it is unneces- sary to consider the questions whether this firm was dissolved by the published notice, and if so, whether such dissolution had the effect to lessen or take away the power to assign. The im- portant question is, did the power ever exist. The authorities and decisions on this subject are quite nu- merous, and are far from being uniform. It is deemed unne- cessary here to attempt a review of them, or to enter into or repeat the reasoning, pro and con, on which they assume to stand. The leading cases will be found enumerated and re- ferred to in Parsons on Partnership, 165 (notes 1, m, n, o), and Story on Partnership, Section 101, note 2. "We have exam- ined these cases with much care and consideration, and think the Weight of authority, as well as the .better reasoning, is with those who deny the validity of such an assignment. The power to make it is not within the contemplation of an ordinary part- nership contract. It is not a power to act as agent of the com- pany in carrying on its business and paying its debts, but a power to appoint an agent and to clothe him with all the pow- ers of the partners. If the power exists where there are only two partners, as in the present case, it must also be conceded where there are many. It is easy to see that in many such cases it might be exercised to the great injury and annoyance of the non-consenting members of the firm. It is often the case, especially in times of financial depression, that a firm, if forced into liquidation, and their effects sold under the ham- mer, would prove insolvent, whereas if suffered to struggle on they would become solvent and successful. In such cases a single member, without the concurrence of the creditors, could by the exercise of the power in question, bring it to an end, and place all its interests in the hands of a trustee of his own THE AMERICAN INSOLVENCY REPORTS. 25 Holland et al. v. Drake et al. Belecting ; or, by threatening to exercise the power, he could compel his co-partners to submit to unjust terms of forbearance. True, he might, in the absence of such a power, where the terms of the partnership did not forbid it, by a proceeding in equity, dissolve the firm and place its assets in the hands of a receiver. But in that case the receiver would be chosen and appointed by the court, and not by the partner, and the other members of the firm would be consulted and heard. We think the safer and juster rule is to require the assent of all the partners, either actually given or to be fairly implied from the situation of the parties, or from the manner of conducting the business of the firm. But it is claimed that the assignment took effect from the date of its execution by McKay, because its subsequent ap- proval by Tracy related back and took effect from the date of its execution, which was prior to the attachment. As between the partners, and as between them and third persons who ac- quired. no new rights in the meantime, this is undoubtedly true. Such is the well-settled law in all cases of volunteer agencies. It is equally well-settled, however, that it cannot have effect so as to defeat the rights of third persons honafide acquired in the meantime. A contrary rule of law would be calculated to work manifest injustice. Take the present case for an exam- ple. Holland and Pettitt levied their attachment while the assignment remaitied in abeyance. It might never be con- firmed by Tracy. With him alone rested the power to give it effect or to defeat it. If Holland and Pettitt dismissed their attachment, Tracy might fail to affirm the assignment, and they would lose their lien if they persisted in their attachment pro- ceedings. Tracy might aflSrm the assignment and they would be left to pay their costs. They would thus be placed completely within Tracy's power, and their rights be made to depend on his will or caprice. - Such is not the law. The as- signment took effect from the date' of its execution, but not so as to affect the rights acquired by the intervening attachment. The question, therefore, whether the assignment is to be re- 26 THE AMERICAN INSOLVENCY REPORTS. Bennett, Assignee, v. Ellison. garded as taking effect from the time when it was delivered to the Probate Court, or from the time of its actual acceptance by the assignee, becomes immaterial. It is enough that the attach- ment was levied before the confirmation by Tracy. It is also claimed that the lien of the attachment was lost by the agreement under which the property was delivered to the assignee by the sheriff. "We are of opinion that the parties are estopped by their agreement from setting up any such defense. The property was given into the hands of the assignee on the faith of the agreement. But for the agreement it woulii have been retained and sold by the sheriff. To allow this defense would be to aid the de- fendants in practicing a fraud upon the plaiiitiffs. A further claim made by the defendants in error is that the proper parties were not before the court ; that the credi- tors of the firm, as well as the assignee, should have been made parties defendant. "We think otherwise. The assignee, like an executor or administrator, is an officer recognized by the law, and whose duties and qualifications are regulated by law, and he fully represents the creditors in such cases. The judgment of the Common Pleas and Probate Courts must be reversed, and the cause remanded to the Probate Court for further proceedings. SUPREME COURT— MINNESOTA. Decbmber 15, 1876. A general assignment, executed with the intent and for the purpose of thereby efieoting a compromiBe with the creditors of the assignor, is void. It is not necessary, in order to enable the creditors to avoid the assignment, that the assignee should have had knowledge of the assignor's fraudulent intent. ELIRU M. BENNETT, Assignee, v. JAMES A. ELLI80N. The plaintiff, as assignee of one James P. McClelland, for the benefit of creditors, brought thig action to recover the value THE AMERICAN INSOLVENCY EBPOETS. 27 Bennett, Assignee, v, Ellison. of a large amount of personal property, taken from the plain- tiff's possession and sold by tiie defendant, as sheriff, by virtue of certain executions against the property of McClelland. In his answer the defendant assailed the assignment as made with intent to hinder, delay, and defraud the assignor's creditors. At the trial, in the District Court for Olmsted County, before Mitchell, J., the defendant introduced evidence tending to prove that, shortly before the assignment, McClelland being insolvent, and largely indebted to various persons — among others, to the firm of E. M. & D. C. Bennett, of which the plaintiff was a member — arranged with the plaintiff that he, McClelland, should, if possible, effect a compromise with all his creditors, upon the basis of fifty cents on the dollar, cash in hand, except the debt due E. M. j'0 rata, among the creditors of the assignor, and if there should be any surplus after paying such creditors, to pay over such surplus to the assignor. The jury found a general verdict in favor of the defendant, and the court also submitted to them for their special finding this question : " Did the assignor, McClelland, make this as- signment with the intent and for the purpose of thereby effect- ing a compromise with his creditors ? " To which the jury returned the answer, " Yes." The proposed compromise which the evidence tended to prove, and to which the special verdict relates, was this : Prior to the assignment, McClelland made an effort to compromise with all his creditors upon his paying fifty per cent, in full of their demands, except the firm of which the plaintiff was a member, who were to receive their demand in full. A major- fty of the creditors had agreed to accept the proposed compro- mise, but others had refused to do so. By the schedule at- tached to the assignment, the debts of McClelland are stated at nineteen thousand nine hundred and eighty-two dollars and forty cents, and the value of his assets at thirteen thousand six hundred and seventy-five dollars. After the proofs were closed, the plaintiff submitted to the court certain requests for instructions to the jury, mainly ab- stract propositions so far as regards the fact found by the spe- cial verdict, which fact must control fhe result of the contro- versy. So far as these propositions have any application to the fact as found, they are in substance these : First, that the 36 THE AMERICAN INSOLVENCY EEPORTS. Bennett, Assignee, v. Ellison. fact that the assignment was made with the intent and for the, purpose of thereby effecting a compromise with McClelland's creditors did not render the assignment fraudulent; second, that, to render the assignment void as to the assignee, by rea- son of fraudulent intent on the part of the assignor, the as- signee, when he took the assignment, must have had notice of such intent. It is the intent with which conveyances of property are made, and not the terms in which they are expressed, that determines their validity as against the creditors of the as- signor. If such intent be in any manner to hinder, delay, or defraud the creditors, they are void as against the creditors intended to be hindered, delayed, or defrauded, although they may be so expressed as, if carried out according to their terms, there would be no such effect. Assignments of all the debtor's property for the payment of his debts are tolerated, although there is incidental to them the delay necessary to the conver- sion of the property into money, and its distribution among the creditors. In this respect they may be regarded as an ex- ception to the rule. But no other delay than such as is rea- sonably necessary to the application of the property to the payment of his debts is permitted. On this ground a provision in an assignment, allowing the assignee to sell on credit, renders the assignment void. {Qreen- leaf V. Edes, 2 Minn., 264 ; Nicholson v. Leavitt, 6 K Y., 510 ; Brigham v. TilliTigKast, 13 id., 215.) Also, the sole pur- pose of the assignment must be to immediately appropriate the debtor's property to the payment of his debts. The reservation of any benefit or advantage to the debtor, before his debts shall be fully paid, will avoid the assignment. A discharge from his debts, without full payment, is such a benefit or advantage to the debtor as, if the assignment exact it as a condition of participating in the distribution, will avoid the assignment. {Waheman v. Orover, 4 Paige, 23; s. c, Grover wWakem.an, 11 Wend., 187.) That case goes so far as to hold tha,t if a re- lease of the debt is exacted as a condition to the rio-ht to a preference provided in the assignment, it renders the assfgn- THE AMERICAN INSOLVENCY REPORTS. 37 Bennett, Assignee, v. KUison. ment void. Mr. Justice Sutherland says (It Wend., 200) : " But where, instead of directly distributing his property among his creditors, as far as it will go, he places it beyond their reach by an assignment, not merely for the purpose of saving it from one particular creditor, to be given to another, or to be equally divided among all, but for the purpose of enabling him to ex- tort from some or all of them an absolute discharge from their debts, as the condition of receiving a partial payment, he per- verts the power to a purpose which it was never intended to cover, and which the principle on which the right to give pref- erence is founded will not j ustify." The assignment in this case was executed, as found by the juiy, with the intent and for the purpose of thereby effecting a compromise with the assignor's^ creditors. The purpose ifi executing it, then, was to place the property beyond the reach of the creditors, in order to give the assignor time, and to place him in a position to be able to bring the creditors to compound their debts. To effect this, delay in appropriating the property to the payment of his debts would, of course, be necessary. The immediate application of the property to the demands of the creditors would be inconsistent with the purpose to effect a compromise by means of the assignment, and vice versa. The intent to effect a compromise by means of the assignment in- cludes the intent to delay the execution of the trust expressed in it, at least so long as might be necessary for the assignor to ascertain if the creditors would compromise. This was an in- tent to delay beyond the. delay which might be necessarily in^ cident to the execution of the trust to sell property and pay the proceeds to the creditors, and was, therefore, fraudulent. The intent was also thereby to secure a benefit to the assignor, to wit, a discharge from his debts without full payment, and without even the application of all bis property upon those debts. For these reasons the assignment was, as between the assignor and his creditors, void. It has been decided by this court that an assignee, in an assignment for the benefit of creditors, is not regarded as a purchaser for a valuable consideration, when the assignment is 38 THE AMBRICAlir IXSOLYBNCf BBPOETS. Weeks ei si. t. Budeios. assailed for fraud upon the creditors, and that knowledge in the assignee of the assignor's fraudulent intent is not necessary to enable the creditors to avoid the assignment. {Gere v. Mitr- ray, 6 Minn., 305.) That decision is in accordance with the weight of authority and with principle. Judgment aflSrmed. STTPREMB COXJET— NEW JERSEY. JUNB, 1877. A debtor in insolTency piroceedings wiU not lose his light to a discharge by an aeeidental omission to giye the leqnixed notice to one or more creditors. CEAELES L. WEEKS et al. v. CB.ABLE8 B UBEB US. F. McGee, for the plaintiff. J. S. lAj^meott, for the defendant. Dalbimple, J. — This certiorari is brought to set aside a discharge in insolvency granted by the Common Pleas of Hudson to Buderus, the defendant in certiorari. The only objection to the legality of the proceedings below is, that the debtor failed to give nptice of the hearing of his application to the plaintiffs in certiorari, upon whose execution he had been arrested and imprisoned. 1 am satisfied from the evidence presented that this omission was not intentional. I can very well see how, under the circumstances, the debtor may have been led into the mistake which he made. The plaintiffs were a firm composed of three individuals, doing business in the city of New York. Two of them were residents of the State of New York. The other resided in the city of Newark, in this State, but, so far as appears, had no place of business in this State. The defendant swears that he believed that the plaintiffs all resided in New York and that he assigned this fact before the THE AMERICAN INSOLVENCY REP0BT3. 39 Baneoom v. BuSnia et aX. Pleas, on heajripg of his excuse fox- not serviug the plaintiffs with the notice required by the statute. There is nothiug tp ehow that his failure to notify the plaintiffs w^s in bad faitli or with sinister purpose. It is well settled by repeated adjudica- tions, that under such circninstances, the debtor was legally entitled to a discharge. The rule is, that the debtor in. iuaolvency proceedings will not lose his right to a discharge by an accidental omission to give the required notice to one or more creditors. {Jay v. Slack, 1 South., 77 ; Berry v. Arthur, 1 Green, 308 ; Hogan V. Sutton, Spenc, 82.) The order brought up is affirmed, with costs. STJPEBMB JUDICIAL COURT— MAINE. NOTBMBBB 18, 1876. Friox to the maMng of the genera^ assignment, the debtqr couveyed certain property to a firm of which the as8dgn Second, That by virtue of the assignment, the goods sold to Whitehouse & Gould passed to Whitehouse as assignee ; and THE AMERICAN INSOLVENCY EEPORTS. 41 Hanscom v. BaSum et aL as he did not account for them in his settlement in the Probate Court, he is chargeable for the amount or excess of the estate remaining in his hands after the payment of the debts of the parties to the assignment and lawful expenses. (Act of 1859, Chap. 112, Sec. 1.) The trustee is not chargeable on the first ground claimed by the plaintiff. The case is not within the provisions of K. S., 1867, Chap. 86, Sec. 63. That statute is applicable only to con- veyances fraudulent and void as to creditors at common law. At common law, a payment, by an insolvent debtor, of the debt of one creditor for the purpose of giving him a preference over his other creditors, was not void as to them. The Act of 1859 (Chap. 112, Section 2) did not change the common law as to the right of an attaching creditor. By that statute a conveyance or transfer by the assignor, previous to making the assignment in contemplation thereof, to a pre-exist- ing creditor in payment of his debt, with the design to give him a preference, is void ; and the property so conveyed passes to the assignee by virtue of the assigniment, to be held by him as assets for the benefit of creditors ; and he is clothed with all necessary power to recover, receive, and collect the same. The words of the statute avoiding conveyances made in contemplation of insolvency to one creditor, with the design of giving him a preference over other creditors, are general ; but they are to be construed in connection with, and are limited by, the subject to which they relate. The object of the statute is to secure an equal distribution of the estate of the insolvent debtor among all of his creditors. Such conveyance is void only as against the assignment. The statute does not affect the conveyance prior to making the assignment. It applies only to a conveyance or transfer made by the assignor ; and the property passes to the assignee to be held by him in trust for the benefit of all tl^e creditors who become parties to the assignment. The provisions of the statute are made for the benefit of those who come in under it to share the effects of the insolvent equally, and are not to be extended to him who refuses to come in under the assignment, 42 THE AMERICAN mSOLVENCY REPOETS. Martin et al.. Assignees, v. Pillsbuiy et al. and yet would avail bimseLf of the terms of the act to secure his whole debt. If the statute affected the conveyance or transfer before the assignment, and rendered it void as to attaching creditors, then before the assignment one creditor might attach and hold the property thus conveyed, and prevent its passing to the assignee by virtue of the assignment, as the assignment does not dissolve prior attachments, and thus defeat the main purpose of the act, the equal distribution of the estate of the insolvent debtor among his creditors. {Penniman v. Cole, 8 Met., 496.) Nor is the trustee chargeable on the second ground claimed by plaintiff. He never, as assignee, recovered possession of the goods conveyed by the debtor to Whitehouse & Gould, as part of the estate of the debtor; and those goods were not an excess of the estate of the debtor remaining in his hands after the pay- ment of the debts of the parties to the assignment and lawful expenses. As between Whitehouse & Gould and any creditor not a party to the assignment, they had a right to hold the property conveyed to them by the debtor. No creditor not a party to the assignment had a right to impeach their title. When the assignee has taken from the assignor, before the assignment, a conveyance of property for the purpose of ob- taining a preference, the remedy for the creditors who have be- come parties to the assignment, is. in the probate court to re- quire the assignee to account for such property in the settle- ment of his account. Trustee discharged. Appleton, C. J., Walton, DanfoetHj ViEGiN and Pbtebs, JJ., concurred. SUPREME COURT— MINNESOTA. October 20, 1876. Defendants purchased lumber of one J., who two days later made a general assignment. At the time of said purchase defendants held J.'s note which matured before they received notice of the assignment. In an action by the assignees to recover the price of the lumber, Hdd, That THE AMERICAN INSOLVENCY EEPOBTS. 43 Martin et al., Asaiguees, t. Pillsbnry et al. defendants were entifiled, under the Statute of Misnegota, to set ofE the amount due them on the note. JOHN MABTIN et al., Aasigneea, v. • CMAEZES A. PILLS BUM 7 0t al. This action was brought yd the Court of Common Pleas of Hennepin County, by plaintiffs, as assignees of William S. Judd, under a general assignment for the benefit of creditors, to recover the price of lumber sold by Judd to defendants The defendants answered, alleging a set-off, as stated in the opinion, A demurrer to the answer was sustained by Young, J., and the defendants appealed. Cross cSs Hicks, for appellants. D. A. Seoomhe, for respondents. Beeet, J. On March 12, 1875, William S. Judd made a negotiable promissory note for five hundred dollars, payable in three months. Prior to June 12th, following, the note was sold «nd transferred to defendants, On June 12th defendants pur- chased of Judd a quantity of lumber, for four hundred and fifty-two dollars and thirty cents, payable June 30. On June 14, Judd made a general assignment of all his property to plaintiffs for the benefit of bis creditors. Allowing grace, the note fell due on June 15. Pefendants had no notice of the *asignment until after maturity of the note. The plaintiffs bring this action to recover the price of the lumber. Defen- dants answer, setting up the facta above stated, as also Judd's insolvency, and ask to have the amount due. them on the note set off against the plaintiffs' claim. From an order sustaining a demurrer to,their answer, defend- ants appeal. Our statute (Gen. St., Chap. 66,. Sec 27) provides that in the case of an assignment of a thing in action, the action, by the assignee is without prejudice to any set-off, or other de- fense existing at the time of, or before notice of, the assign- ment. The words "existing at the time of, or before notice of, the assignment," apply to setoffs as well as to other defenses. (Earris v. Burwell, 65 K C„ 584 ; MeCabe y. Qrey, 20 Gal., 509.) As respects his right to interpose a .set-pff or other de- 44 THE AMERICAN INSOLVENCY REPORTS. Martin et al., Aesignees, v. Pillsbniy et al. fense, the effect of the statute is that, until he has notice of the assignment, the defendant occupies the same position as if the thing in action assigned was still held by the assignor. In the case at bar, the defendants, at the time they received notice of the assignment, were holders of a matured note against the assignor; the claim assigned to the plaintiffs was not due, and the assignor was insolvent. This state of facts brings the case within the doctrine of Lindsay v. Jackson ( 2 Paige, 681). This doctrine is succinctly stated in Bradley v. Angel (3 N. T,, 475), as follows : " A. having a demand against B., which is due, and J3. one against A. not due, A. may in equity compel a setr off, if E. is insolvent. (See also, Colyer v. Craig, 11 B. Mon- roe, 73.) Upon the construction which we have given to the statute the defendants, as respects this equitable right of set- off, which accrued before notice of the assignment, occupy the same position as if the thing in action assigned was still held by the assignor. It is, therefore, available in their favor against the plaintiffs. For the purpose of maintaining his position, that no debt or demand not due at the time of an assignment can be set off, within the meaning of the statute before quoted, the coun- sel relies upon several cases from New York, especially upon Martin v. Kummuller (37 K T., 396). In New York the statute under which the case cited was decided is as follows, viz. : " If the action be founded upon a contract, other than a negotiable promissory note or bill of exchange, which has been assigned by the plaintiff, a demand existing against such plaintiff' or any assignee of such contract at the time of the assignment thereof, and belonging to the defendant, in good faith, before notice of such assignment, may be set off to the amount of the plaintiffs' debt, if the demand be such as might have been set oj' against such plaintiff or such assignee while the contract belonged to hvm." The latter clause (which we have italicised) is not found in oar statute, which is, therefore, in our opinion, so essentially and materially different from the Statute of New York as to render decisions based upon the latter inapplicable, so far as the point involved in the case at bar is concerned. Order reversed. THE AMERICAN INSOLVENCY EEP0ET3. 4S Bhoads v. Blatt et al. SXn>EEME COURT— PENNSYLVANIA. March 28, 1877. Beal estate does not pass to the assignee under on assignment of "all the goods, chattels, effects, and property of eveiy kind, personaj and mixed," of the assignor ; nor can the assignee make any claim upon the proceeds thereof, after a sale and conversiou by the assignor. In a sale by an insolvent yendor, inadequacy of price ia evidence of fraud. SAMUEL L. E ROADS r. REUBEN BLATT et al. This was an attachment execution issued by Samuel L. Khoads to the use of John Wilhelm against Reuben Blatt, wherein Aaron Blatt was summoned as garnishee. The gar- nishee pleaded nulla iona, with leave, etc., and issue. The case was this : On the 21st of January, 18Y1, 'Ehoada obtained a judgment against Eeuben Blatt which, on the 16th of June, 1874, was marked to the use of "Wilhelm, On the 26th day of April, 18Y1, Reuben Blatt, being seized of an undivided interest in a farm which has descended to him and his brothers and sisters from their father, Benjamin E. Blatt, under the intestate laws, executed an assignment for the .benefit of creditors to John K Derr, of " all the goods, chattels, and effects and property of every kind, personal and mixed, of the said Reuben Blatt," which assignment was duly recorded on the day of its date. The 12th day of May following, the assignee filed an inven- tory, wherein said interest was appraised at two thousand dollars. The assigned estate of Reuben Blatt was settled and proved in- solvent, paying the creditore aj^r-o rata dividend of only twen- ty-three and a half per centum. On the 7th day of August, 1871, proceedings in partition were commenced, which terminated in Aaron Blatt, the brother of Reuben, accepting the above-mentioned farm at the valua- tion thereof, to wit, twelve thousand nine hundred and twenty dollars, and entering into a. recognizance to secure the shares ■46 THE AMERICAS' INSOLVES'CT REPORTS. Rhoada v. ^lait et al. of his brothers and sisters. The widow died, and the interest of Reuben Blatt in the recognizance aforfesaid was two thousand five hundred and eighty-three dollars and ninety-nine cents. Eeuben Blatt made assignments of portions of his interest in said recognizances to divers persons, some dated before and some after his assignment for the benefit of creditors, aggrega^ ting one thousand four hundred and twenty-three dollars and thirty-one cents, with a small amount of interest. This le^t a balance of one thousand one hundred and Mty-nine dollars and ninety-eight cents with interest due Keuben from Aaron. This attachment execution was issued and served upon Aaron Blatt, who was summoned as garnishee. Upon being ruled to reply to interrogatories, he filed answeis, admitting that he had in his possession the above balance, but alleging that Keuben had, on the 31st day of July, 1872, assigned it to J. "Warren Tryon, Esq. ; the consideration mentioned in this assignment being four hundred dollars, the receipt whereof was acknowl- edged therein. The cause was then put at issue, and at the trial before Sassaman, A. L. J., the plaintiff contended that this assignment to Tryon was made with the intent to defraud creditors, but the court ruled that there was no evidence of fraud. In their general charge they also held that the real estate of Blatt passed to the assignee for the benefit of credi- tors, and if it did not at the time of the assignment it subse- quently did when converted into personalty after the proceed- ings in partition ; and therefore the remedy of plaintiff must be against said assignee, and the jury were instructed to find for defendants. The plaintiff took this writ, assigning these rulings of the coujt for error. Gyrus G. Derr, for plaintiff in error. The real estate did not pass to the assignee for creditors, as no apt words were used in the assignment, and the use of words " personal and mixed," excluded the realty. « If the land did not pass, the money arising from a sale thereof did not pass. THE AMERICAN INSOLVENCY HEPOKTS. 47 Bhoads v. Blatt et al. The inadequacy of the consideration named in the assignment to Tryon was evidence of fraud, the assignor being largely indebted. {Davidson v. Little, 10 Harris, 245.) Kerury C. G. Eeber, for defendants in error. Paxsok, J. — It is manifest that the real estate of Kenben Blatt did not pass by his assignment for the benefit of creditors. By that instrument he assigned " all the goods, chattels, and eflFects and property of every kind, personal and mixed, of the said Eeuben Blatt." Whatever might have been the effect of the words, " goods, chattels, effects and property of every kind," had they stood alone, the addition of the vrords "personal and mixed" certainly limited them to the personal estate. It is equally clear that if the real estate did not pass by the assign- ment, the assignee could have no claim upon the proceeds thereof, after a sale and conversion by the assignor. The question of fraud should have been submitted to tie j ury. The learned j udge refused the plaintiff's first point upon the ground that there was no evidence of fraud. This was error. The record shows that Blatt was insolvent He had made an assignment for the benefit of his creditors. It appears from the report of the auditor that his estate yielded but a small dividend. The assignment to Mr. Tryon was of a claim of one thousand two hundred dollars, charged as a first lien upon a farm said to be worth thirteen thousand dollars. The consid- eration for the transfer of this claim was four hundred dollars. In a sale by an insolvent vendor inadequacy of price is evidence of fraud. It was said in Damidson t. Little (10 Harris, 245) that " the sale of lands or goods by an indebted person for less than their "value is ipso facto a fraud in both vendor and vendee. The judgment is reversed, and a veni/i^e facias de novo awarded. "^^ ^HB AMERICAN INSOLVENCY EEPOETS. Jordan et al. , Assignee, v. Sharlock. SUPEEME COTJET— PENNSYLVANIA. June 4, 1877. Defendant made a note at ninety days, which was discounted and held by a bank in which he had an account. Before the maturity of the note the bank made a general assignment for the benefit of creditors. In an action brought by the assignees on the note, Hdd, That defendant had a right to set off a balance due him on his deposit account at the date of the assign- ment.. FRANCIS JORDAN et al.. Assignees, v. MARTIN SHARLOGK. Amicable action by Francis Jordan and George "W. Porter, assignees of the City Bank, against Martin Sharlock, in which the following case was stated for the opinion of the court : " 1. That the defendant had a running account of deposits in said City Bank, from 22d November, 1875, to 6th. September, 1876, on which, at said last-mentioned date, there was a bal- ance due to said defendant of three hundred and ninety-five dollars and fifty cents. ' " 2. That on the thirteenth day of June, 1876, said defen- dant made, and had discounted at said bank, the following note, viz.: « ' $350.00. Baldwin, June 13th, 1876. " ' Ninety days after date I promise to pay to the order of Samuel Witmer, three hundred and fifty dollars, at City Bank of Harrisburg, without defalcation, for value received. (Signed) "Martin Shaelock. f'S. WiTMEE.' " 3. That on the 7th of September, 1876, the City Bank made an assignment of all its property and effects, including said note, to the plaintiff, in trust for the payment of debts, and said assignment was duly acknowledged and recorded the same day. " 4. That said note was duly endoraed on the day of its date, THE AMERICAN INSOLVENCY REPORTS. 49 Jordan et al. v. Sharlock. by said Samuel Witmer ; and on its maturity, on the fourteenth day of September, 1876, -was duly protested for non-payment, the plaintiff refusing to allow the defendant a set-off, as claimed by him, for said deposit of three hundred and ninety' dollars and fifty cents, or any part thereof, in payment of said note, the assets of said bank being insufficient to pay the debts. " 5. If, under these facts, the plaintiff is entitled to recover, then judgment to be entered for the plaintiff, for said sum of three hundred and fifty dollars, with interest thereon from the said 14th September, 1876, with two dollars and ten cents costs of protest ; and if the said plaintiff be not entitled to re- cover, then judgment for said defendant for the sum of forty- five dollars and fifty cents, with interest thereon from said 14th September, 1876." The court, Hendeeson, A. L. J., delivered an opinion inter alia, saying : " It is held in general, in this country, that when the con- sideration on which the debts in question were based, respect- ively, is mutual, the period at which they become due is imma- terial. The better opinion would seem to be, that demands, which were mutual in the lifetime of the parties, may be set- off after their deaths, though not due when it happened, if they become due before action brought. And where the estate is • insolvent — where, after suit is commenced by the administrator, the estate of his intestate is represented insolvent, the defendant may set-off a note against the intestate which falls due pending the suit, though not due and payable when the action was commenced. And, again, where an estate is represented in- solvent, all mutual demands of every nature and kind are to be set off, and the balance only is the debt due to the estate. In case of an insolvent estate, as there must be a final settlement of all demands, it follows, as a necessary consequence, that a debitum in presenti, although not a debt due, is within the principle and may be set off. {Bigelow v. Folger, 2 Metcalf, 255.) This may go further, and seem inconsistent with the principle enunciated in Bosler v. Exchange Bank ; but when we consider that insolvency is the shifting factor that disturbs VOL. I. — 4 ^0 THE AMERICAK INSOLVENCY REPORTS. r Jordan et al. v. Shailock. the equilibrium of these cases, and that considerations of pub- lic policy enter into the solution of the cases in which ' the debt ' is a deposit, in bank, we are constrained to think that the spirit arid reason of the Pennsylvania decisions are in accord with the general doctrine stated above. {Murray v.'William»on, 3 Binn., 135 ; Stuart v. The Commonviealth, 8 Watts, 74; Cramond v. Bank of the United States, 1 Binn., 64.) The court directed judgment to be entered in favor of the defen- dant, and the plaintiff took this writ, assigning this entry of judgment for error. Hall (& Jordan, for plaintiff in error. The right to set off the deposit in payment of the note would have existed had the note been due prior to the date of the assignment; but, not being then due, the right is denied. The assignment wa^ a legal transfer of the insolvent's property, including the note in question, in trust for the payment of debts, just as the death of an insolvent debtor works a legal transfer of his personal estate in trust for the benefit of the creditors of such decedent. This case is ruled by Easier v. Exchange Bank (4 Barr., 32), and the appeal of the Farmers and Mechanics' Bank (12 Wright, 57) ; and the principle of these cases is supported by Poorman v. Goswiler (2 WattSj 69) ; Beeler v. Turnpike Co. (2 Harris, 162) ; and Singerly v. Fox (25 P. .F. Smith, 112). John H. Weiss, for defendant in error. The assignee is the mere representative of the debtor, and is bound where the latter would be bound. He is the mere h^nd of the assignor in the distribution of the fund, and not the representative of the creditors, {hi re Fulton's Estate,! P. F. Smith, 211.) Tiie assignees succeeded only to the rights and equities of the assignor, and as the defendant can set off this debt as against the assignor, he can as against the THE AMEEICAN INSOLVENCY REPORTS. SI Jordan et al. v. Sharlock. Chief Justice AqmEw delivered the opinion of the court, June 4, 1878. In Re Fulton's Estate (1 P. F. Smith, 211), it is said : "Perhaps nothing is better settled iij this State by uni- form and numerous decisions than this, that e^., voluntary assignee is the mere representative of the debtor, enjoying his rights only, and no others ; and is bound where he would be bound ; that he is not the representative of the creditors,, and is not clothed with their powers ; that he is but a volunteer, and not a bona fide purchaser for value. Many cases are cited for these propositions. Martin Shar- lock made his note of three. hundred and fifty dollars, June 13, 1876, at ninety days, which the City Bank discountjed and held on and before the maturity of the note. He had a running account of deposits in the bank before and during the running of the note, in which there was a balance due him, September 6, 1876, of three hundred and ninety-five dollars and fifty cents, the bank then being the holder of the note. The bank made a voluntary assignment for the benefit of creditors on the 7th of September, 1876. When the note passed ; by this assignment to the assignees, Sharlock was the creditor of the bank and had an immediate right of action against it. The assignees, being the mere representatives of the bank and not purchasers for value, took the note subject to his right of set off. It is clear, according to the authorities, that the bank conferred upon the voluntary assignees no right greater than their own, which was a right of action when the note fell due, subject to the existing set-off. Bosler v. The Exchange Bank (4 Barr., 32), and its sequents, were decided on a widely different principle. When Bosler died the bank had no debt due for which it could sue, while Bosler's right of action was perfect before his death. But at the moment of his death the law took>possession ofhis estate for the benefit of his creditors, he being insolvent. It was not the case of a mere voluntary transfer ; but new rights sprang into being on the instant of his death. At his death, the debts did not ipso facto conceal each other, for the reason that the bank had no immediate rig]?t of action. Consequently, 52 THE AMERICAN INSOLVENCY REPOKTS." Francis v. Rankin. when the estate by operation of law passed into legal administra- tion, and'was in gremio legis, the rights of creditors immediately attached, and the estate being insolvent, equity demanded equality among the creditors of the same class. Hence, the right of the bank as a creditor was to a pro rata only. But a voluntary assignment has no such effect. It does not alter the status of the rights of the creditors, as death does of the dece- dent's estate. It is true the duties and obligations of the as- signees are regulated by law, but the transmission of the estate to them is the merely voluntary act of the debtor, who cannot impair the rights of creditors which had attached before his act. We discover no error in the record, and the judgment is affirmed. SUPREME COURT OF ILLINOIS. Securing one creditor to delay of others. Debtor securing creditor. One creditor may be secured, if done in good faith, though others may be injured. FRANCIS V. RANKIN. Stewart <& Phelps, for appellant. John J. Glenn, for appellees. Scorr, J.— The property in controversy was seized under writs of attachment against the goods of Henry Van Tuyl, who had left the State, and this proceeding was instituted to try the right of property. Claimant was security for the ab- sconding debtor for a considerable sum of money, and to save himself against loss on account of such suretyship, he took a chattel mortgage on the property, insisting chiefly of a lot of corn standing in the field. After Yan Tuyl had left, he took possession of such articles of pei-sonal property embraced in the mortgage as he could find, and also such possession as was THE AMERICAN INSOLVENCY REPOETS. 53 Bartlett v. Blaine. practicable of the corn then niiharvested. Wliile the property was so in possession of claimant, it was seized by the creditors of Van Tuyl under writs of attachment. Without discussing the merits of the case, we think the judgment ought to be reversed because of the refusal of the court to give the third instruction in tlie series asked on behalf of claimant. It states the prhiciple— a debtor may secure a creditor, where it is done in good faith, notwithstanding the ultimate effect might be to delay other creditors. (Thornton V. Davenport^ 1 Scan., 296.) JSio instruction given contained this principle, and, as it was applicable to the facts of the case as developed by the evidence, it ought to have been given. On account of the error indicated, the judgment -(vill be reversed, and the cause remanded. Judgment reversed. SirPRBME COURT OF ILLINOIS. Fraudulent representations as to composition agreement. \< Fraud representation. Plaintiff must show himself to have been injured by, to recover, and the rule holds good as to representations coaceming composition agreement. BARTLETT v. BLAINE. McOlellan, Hodges c& OumminSj for appellants. Frederick Ulrioh, for appellee. DiOKET, J. — This is an action on the case for fraud by ap- pellants against appellee. The plea was, not guilty. The verdict was, not guilty, and judgment for appellee for costs, and appellants appeal to this court. Counsel for appellants do not contend that any right of re- covery was shown except under the second count in the de- claration. Under that count it was proven on the trial that, on 54: THR AMERICAN INSOLVENCY KEPOBTS. Bartlett v. Blaine. the 10th day of February, defendant was indebted to plaintiffs in the sum of two thousand and ninety-four dollars and sixty- seven cents, and that he was indebted to other creditors, amounting in all to the sum of sixty-two thousand, two hundred and ninety-seven dollars and seventeen cents, and that his as- sets at the time were of the value of thirty-five thousand, eight hundred and thirfy-six dollars ; that proceedings in bankruptcy instituted against appellee were pending in the Federal Court ; that appellee was trying to induce, all his creditors to sign arti- cles of compromise by which each should accept fifty cents on the dollar and release appellee ; that most of the creditors had consented to do so, and had signed the composition agreement, and among them, Peake, Opdyke & Co. had signed, whose claim was four thoilsand, seven hundred and two dollars, and forty-five cents ; that, under these circumstances, Blaine called upon Hodges, the attorney and agent of plaintiffs, and induced him to sign the firm name of appellants to the article of settle- ment in consideration of the fifty per cent, they should receive Tmder the composition and in consideration that certain repre- sentations made by Blaine at that time were true; that, before so signing, Hodges, on behalf of plaintiffs, demanded and received fi'Om Blaine a statement in writing signed" by him, in which he, among other things, stated that (other than three hundred dollars to be paid to one Colby for his services, and to cover costs in the bankruptcy proceedings) : " iV^o per- son has received, or shall receive, ahy other compensation in the premises, directly or indirectly." Proof was also given tending to show that before the time when Blaine signed this statement he had signed a note of five hundred dollars to one Bullene, an agent of Peake, Opdyke & Co., to induce BuUene to procure his principals to sign the composition articles, and that at the time Blaine signed such statement, this five hun- dred dollar note was outstanding. Proof was also given tend- ing to show Blaine had been sued on this five hundi-ed dollar note, and bad defended the same on the ground that it was void for duress in the procuring of its execution, and that on a trial on the merits in that case it was so adjudged. THE AMERICAN INSOLVENCY REPORTS. 55 Bactilett y. Blaine. In this case plaintiffs were paid the amount provided for in the composition articles, and thelx sued for the balance of their original claim, seeking to avoid the effect of the compo- sition on account of the fact that this Bullene note had been given; and therefore the statement of Blaine, upon wliich the composition was accepted by plaintiff, was untrue when it was made. This Bullene note was adjudged void. ' Yoid things in law are equivalent to no things. The existence of a void note was not in substance incompatible with the statement that "No person had received any other thing," etc. This is not suffi- cient to invalidate tlie contract of composition. Again, a mere fraudulent representation is not actionable per se. If a man utter slanderous words of his neighbor, the neighbor may have his action, though he be not damaged by the words spoken. If a man, upon a valuable considej-ation, promise to another that he will do any given thing, and fail to perform his promise, an action lies for the breach of promise, though no damage be done. Not so with an action for fraudu- lent representations. In such action the plaintiff must not only show that the representations were made, and. that they were false and fraudulent, but he must 'also show affirmatively that he has been injured thereby — that he is in some way in a worse condition than he would have been had the words been true. In this case no such thing is shown.' Plaintiffs have never been called upon to pay this note to Bullene, nor could they be. The existence of the note has in no way prevented them from getting promptly their fifty per cent, upon their claim, according to the terms of their contract. It is said, however, that they were thereby induced to sign the composition arti- cles, but there is no attempt to prove that they are in any worse condition than they would have been if they had not signed. They had a claim against a man, insolvent, his hands tied by a bankruptcy proceeding pending with over sixty thousand dollars liabilities, and only about thirty-five thousand dollars of assets. 56 THE AMERICAN INSOLVBNCT BEPORTS. In re Oakley, Assignee. No proof is offered to prove that the demand of plaintiffs, under the circumstances, was of any greater value than the money they accepted therefor. The plaintiffs on the record failed to make out a cause of action at the trial below. Assuming all the evidence given in their behalf to "be true, and adopting all the-iuferences which might reasonably be drawn from the evidence in plaintiff's favor, no cause of action is shown. Judgment afBrmed. iraiW YORK COMMON PLEAS. Spbciai, Teem, Octobbr, 1878. In re Accounting of A. OAKLEY, Assignee. It is not necessary for creditprs, whose claims are inserted in the schedules of an assignment; under the Act of 1877, Chap. 466, to present them to the assignee with vouchers va. order to participate in the fund on the account- ing of the assignee. The practice iu similar oases prior to the General Assignment Act of 1800, as recognized in Kerr v. Blodgett.{48 N. Y., 63), is not now applicable under the general assignment acts. In an accounting under the latter the court has no power to make an order requiring creditors to appear and prove their claims or be excluded from any share of the assigned estate. Disputed claims are to be tried by special order of the court, and upon due notice to the creditor whose claim is attacked- No creditor is bound to come to the assignee or referee with his proof of his claim. J. F. Daly, J. — The assignee having advertised for creditore to present to him their claims, with the vouchers thereof duly verified, pursuant to Section 4 of the Act, Chapter 46(J, Laws 1877, and a limited number only of the creditors named in the assignor's schedules having appeared and proved their claims, these creditors and the assignee now contend that all the other '■schedule creditors are cut off from any share of the estate. The authority relied on is Eerr v. Blodgett (48 N. Y., 62). It was there held that in an action in equity (commenced prior to the General Assignment Act of 1860), by the credito.- THE AMERICAN INSOLVENCY REPORTS. 57 In re Oakley, ABsignee. of an assignee on his own behalf and on behalf of all other creditors of the assignors against the assignee for an accounting, it was according to the practice of the courts of equity to make an interlocutory order referring the account of the assignee, and directing advertisement to be made for creditors to present their claims to the referee, and decreeing distribution of the estate among those only who proved their claims, and that the interlocutory order was for the benefit of all the creditors, and bound them all, whether they had actual notice or not and that after the estate was distributed a creditor who had failed to appear and prove his claim after such advertisement had no remedy. In an accounting under the General Assignment Acts (1877, Chap. 468 ;- 1878, Chap. 318), the court has no power to make an order requiring creditors to appear and prove their claims or be excluded from any share of the assigned estate. The advertisement for claims authorized by Section 4 of the Act of 1877, is made by the assigiiee, and nothing in the act can be construed into a provision cutting off from a distributive share a creditor who does not present his claims. The adver- tisement ordered in equity suits requires the creditors to appear before a referee, who exercises judicial functions in examining and allowing and rejecting claims presented. The assignee has no such j udicial power. The creditors of the assignor whose names appear on the schedules as creditors with the proper statement of their claims, need not, unless such claims are con- tested, present his demand to the assignee in ordfer to obtain a dividend. The filing of the schedules in court under the pro- visions of the Act (Section 3), is a presentation of the claims therein admitted to the court, and is prima facie evidence of the indebtedness of the assignor to the persons named as credi- tors. The fact is before the court and cannot be ignored. Before the passage of the General Assignment Acts there was no provision of law requiring the making up, verifying and filing schedules in cases of assignments for the benefit of credi- tors. There was no method by which the court could ascertain who were the creditors of the assignor except by advertisement. 58 THE AMERICAN INSOLVENCY REPORTS. In re Oakley, Assignee. which was always directed in the interlocutory judgment. Such persons only as appeared befoi-e the referee and proved their claims were deemed to have oJaims,- and the court was ignorant that others existed. In cases under the General As- signment Acts the proof of the claim is before the court, the assignee and the referee, duly presented and verified by the as- signor. One object of advertising for claims under Section i of the Act is to notify creditors, whom the assignor may have omitted (either intentionally or unintentionally) from his eehednles, to come and present their claims to the assignee. It is also in- tended to relieve the assignee from the necessity of giving notice of the subsequent proceedings in accounting to creditors who have not presented their claims (Section 12, subd. 13), but nothing in the Act warrants the construction that it intended to cut off from participation in the fund creditors whose claims have been presented and authenticated by the assignor in his schedules and who have not come forward (their claims not being attacked) to make further proof. Under Section 4, after advertisement a creditor is not bound to do more than present his claim to the assignee. This has been already done for him by the assignor. He has no proofs to produce because the as- signee has no judicial power to examine and determine upon proofs. Disputes as to claims are to be tried before a referee or jury on special order of the court (Section 26) and parties who unsuccessfully dispute a claim must pay the costs of the litigation. Unless an order be made under the 26th Section for the trial of disputed claims, and after due notice -to the creditor whose claim is attacked, no creditor is bound to come to the assignee or referee with his proof. Keport referred back. THE AMERICAN INSOLVENCY REPORTS. 59 Rockwell V. McOoVem. NEW YORK COURT OP APPEALS. Afbil Term, 1877. ROCKWELL V. McGOVERN. An assignment, which upon its face purports to have been made under the provisions of the N. Y. Revised Statutes, relating to " voWntary assign- ments made pursuant to an application of an insolvent and his creditors" (3 K. S., p. 16), is invalid as a conveyance of the insolvent's estate when the preliminary proceedings upon which it is based are void. Such an assignment was only for the creating of a statutory trust for the pur- poses of the statute ; when that failed no estate vested in the assignee, notwithstanding the mention of a nominal sum as the consideration of the assignment. Appeal from a judgment rendered by the G-eneral Term of tbe Superior Court of New York City. Andrews, J. — In the year 1845, Isaac Y. Paddock, who then owned the lot in controversy, presented to* the County Judge of Westchester County a petition signed by himself and certain . of his creditors, for his discharge from his debts, under the provisions of Art. 3, Chapter 5, Tit. 1, Part 2, of the Ke- vised Statutes, relating to " voluntary assignments made pur- suant to an application of an insolvent ' and his creditors." The judge entertained the proceeding, and it was carried so far that an assignment of the insolvent's estate was directed, and the petitioner executed an assignment to the plaintiff Eoekwell. The assignment recited that it was made under and in pursur ance of the statute to which reference has been made, and in pursuance of an order of the county judge, and it purported to grant, assign, and transfer to the plaintiff Rockwell all the estate of the assignor in law and in equity, for the benefit of all his creditors, " according to the statutes aforesaid." The assign- ment also expressed a nominal consideration of one dollar. The petition in the proceedings was fatally defective, and con- ferred no jurisdiction upon the officer, and the plaintiffs on the trial conceded that the proceedings were null and void. It does not' appear whpther a discharge was granted, or that & 60 THE AMERICAN INSOLVENCY EEPOETS. Rockwell V. MoGovem. any step was taken subsequent to the assignment, or that the assignee qualified, or assumed to act as assignee until the sale now to be mentioned. In 1869, twenty-four years after the assignment, one Towns- hend, an attorney, who, so far as appears, was not a creditoi of the insolvent, or in any way interested in the execution of the supposed trust, applied to the plaintiff Rockwell to sell the lot in question, and promised to remunerate him if he would consent to make the sale. The assignee thereupon advertised the lot for sale at public auction, and on the sale it was bid off by Townshend for $100, and at his request, as we are author- ized to infer, was conveyed by the assignee to his sister-in-law, who soon afterward, without any consideration received by her, conveyed it to the plaintiff. May H. Townshend, the wife of the attorney who procured the sale. The assignee did not know, until he was so informed by Townshend, that Paddock owned the lot when the assignment was made. Paddock died in 1864, and no notice of the proceedings for the sale of the premises by Rockwell was given to his heirs, otherwise than by publication of the notice of sale. It is a fatal objection to the right of the plaintiffs to recover, that the assignment-being based upon the void insolvent pro- ceedings, was void, and conveyed no title to the assignee. The assignment was one step in the proceedings, and the trust which the parties, under the direction of the judge, and in supposed compliance with the statute, attempted to create, could not be carried into effect. That Paddock's purpose was to create a statutory trust, under the provisions of the Insolvent Debtor Act, is apparent on the face of the assignment. His sole object in making it was to obtain, through a compliance with the statute, a discharge from his debts under its provisions. The assignment declares that it was made under and by virtue of the statute, and the order of the judge, for the benefit of creditors according to the statute, and the assignee is stated to have btJfen nominated by the creditors. The proceedings having been without jurisdiction, no law- THE AMERICAN INSOLVENCY REPORTS. 61 Rockwell T. McGovem. ful discharge of the debtor from his debts could be granted under them. The purpose of the assignment failed, as also the consideration upon which it was founded. The statute contains special and minute provision for the administration for the estate of the insolvent, when an assign- ment has been made under its provisions. It prescribes the duties and powers of the trustees, provides the mode of ascer- taining the creditors, and for barring those who fail to present their claims as provided in tlie act, from sharing in the distri- bution ; for priority ^of payment of debts of a certain class ; and for an allowance to the debtor out of the estate in a certain contingency before creditoi-s have been fully paid. (2 Eev. St., Art. 8, Chap. 6, Tit. 1, Part 2.) In short, the statute contains a special system of administration adapted to carry out the special trust created by an assignment under it, and are inap- plicable in many particulars to tiie case of an ordinary volun- tary general assignment in trust for creditors. The assigninent cannot be regarded as valid as a conveyance of the insolvent's estate, when the preliminary proceedings upon which it is based are void, as not in conformity with the statute. The trustee could not take in the character as for the purposes, or with the powers specified in tlie statute, and the reasonable construction of the transaction is, that no estate vested in him under the assignment. The assignment failed with the other proceedings, and did not divest the insolvent of his title to his estate. (See Ely v. Cooke, 28 N. Y., 374.) The mention of a nominal pecuniary consideration in the assignment is not material. It clearly appears by the assign- ment itself that the intention was to create a statutory trust, and to convey no other estate or interest than was required for that purpose. The mention of a nominal consideration was a formal and an unnecessary proceeding, but the other parts of the instrument indicate with certainty the true character and intent of the transaction. There was no intention to give the assiffnee a beneficial interest in the estate, or to invest him with any trust or interest other than that prescribed by the statute. (See Morris v. Ward, 36 K Y., 587.) 62 THE AMERICAN INSOLVENCY REPORTS. Lamar Insurance Co. v. Moore. When the intention of a grantor is to convey a fee, and the deed is otherwise effectual, it is not invalid because it purports to be executed in pursuance of an invalid judgment. {Striker V. Motf, 28 K Y., 90 ; Same v. Stiles, 14 Pet., 322.) This is not a conveyance of that character. It is unnecessary to con- sider what the rights of a bona fide purchaser for value of the land irom the assignee, without notice of the defect in the pro- ceedings, would be. The plaintiffs do not stand in that posi- tion. These views dispose of the case. The plaintiffs must recover, if at all, upon the strength of their own title, and they have shown noue. The case of Rockwell v. Brown (54 N. Y., 210) is not in conflict with the conclusion we have reached. The court in that case held that the production of the assignment was prima facie proof that Kockwell had acquired the title of Paddock. In that case it did not appear that the insolvent proceedings were void. In this case that fact is admitted. The judgment should be ailirmed. SUPREME COtTRT OF ILLINOIS. STOCK NOTES OF INSOLVENT rNSDBANCE COMPANT. LAMAR INSURAIfCE CO. v. MO ORE. Subscription^ make up the capital stock of suoh corporations, and constitute a trust fund for the benefit of the creditors. Stock notes of an insolvent insurance company can only be enforced, so far as necessary to indemnify creditors. The declaration should show the amount of such deficit. 1. Subscriptions — notes for — declaration. Breese, J. — In view of the averments in both counts of the plaintiff's declaration, we do not deem it necessary to determine the character of the instrument sued on, whether it be a nego- tiable promissory note due on demand, or otherwise. ' We are satisfied the organization of the corporation, and the subscrip- THE AMEUIOAN INSOLVBNOT REPORTS. 63 , Lamar Insuranoe Co. x. Moore. tion by the 'defendant for five shares of the capital stock, created a liability on his part to pay to the company the amount of his subscription. Snch subscriptions make up the capital stock of such companies, and is a trust fund for the security of the creditors of the company. The true question is, to what extent under the averments in the declaration can this liability be enforced, the corporation being insolvent, and its assets in the hands of a receiver ? Appellant's counsel insist it can be enforced to the extent of the undertaking. He says the company is an insolvent cor- poration, and that a receiver has been appointed ; that this suit is for his use, and the proceeds are to be applied by him in payment of the debts of the corporation ; that the note is an as set of the corporation, and again the defendant is a stockholder in the company — the note was given for capital stock and rep- resented it — the capital stock is pledged to those who deal with the corporation for their security. The unpaid balance on stock notes are as subject to collection as any other debts due the company, and he asks why they should not be collected, and he creditors paid. The answer to all this is, such is not the contract defendant entered into. He engaged to pay the eighty per cent, of his subscription remaining unpaid, " on the call of the directors, as they might be instructed by a majority of the stockholders represented at any regular meeting." This action is not brought by the receiver, but by the Lamar Insurance Co., the corporation with whom the defend- 'ant contracted, and before a recovery can be had, the plaintifE must show the required call was made. (Barrett v. Alton <& San- gamon BR. Co., 13 111., 504.) When an insurance corporation becomes insolvent and its effects placed under the control of a receiver, stock notes are nothing more than instruments to be used in the same manner, and for the same purpose, as the capi- tal stock could be used, and that would be as an indemnity, to be applied to the discharge of the liabilities of the corporation. A stockholder in a corporation so placed is not legally bound to pay more of his subscription than may be necessary to satisfy outstanding debts. Hence the necessity in an aqtion to enforce 64 THE AMERICAlir INSOLVENCY EBPOBTS. Lamar Insurance Co. v. Moore. such a liability, that the amount of the debts should, be averred and proved. Suppose this insolvent corporation owed two hun- dred dollars only, would it be right to recover of the defendant twice that amount, or half to be returned to him when the debt is paid, waiving expenses, commissions, and other deduc- tions ? When we consider the nature of insurance corporations, we can well understand why subscriptions to their capital stock are made in the way this was made. They differ from banking, railroad, and manufacturing companies, whose capital is necessarily invested in the active operation, in which such corporations are engaged. Not so with insurance companies. The capital stock of such corpora- tions is not active, nor is it as a general thing used in their oper- ations. Their contracts are contracts of indemnity, the pre- miums coming to them being so calculated and arranged as to meet its ordinary liabilities for losses. Stock in such compa- nies is issued on the payment of a small per cent., as in this case, the balance being subject to call to meet its disasters. This action is brought by the corporation for the use of the receiver. Why for his use ? The answer is that he may be able to pay outstanding debts of the corporation. He can only demand so much of a stock subscriber as his subscription amounts to, and only so much of that as may discharge the debt. In the absence of any averment in the declaration of the amount of debts due by this corporation, the plaintiff cannot " recover. Burnham's judgment, and those of the other creditors who joined in the bill of complaint, may not haye amounted to one hundred dollars. We cannot know, as it is not averred. The bill was filed to discover assets of the corporation, and ap- ply them to the payment of those judgments. It is not averred that the capital stock had been absorbed, but only reduced and lessened. It follows, therefore, if the debts set out in the bill of complaint could be met and discharged by using the capi- tal stock paid in, there was no necessity for any demand upon the defendant. Some allusion is made to the case of White v. THE AMERICAN INSOLVENCY KEPORTS. 65 In re Weinboltz, Smith (77 111., 354). In that case regular calls had been made by the board of directors. We are of the opinion that on this action brought by the company, a recovery can be had, only on the terms of the sub- scription, and further that by the insolvency of the company, and the transfer of its assets to a receiver, a stock note, such as this, can be enforced only to the extent of the deficit, and that the declaration should show. Judgment affirmed. COMMON PLEAS— NEW YORK. Special Tbkm, Jtjlt, 1878. In re The Accounting of WEINBOLTZ. Upon a petition to discharge an assignee on final accounting under the general assignment act of 1877 (Laws N. Y,, Chap. 466), It must appear that claims have been advertised for, and that citations have been issued to creditors and parties interested in the bond, and there must be proof of the due service thereof^ An original schedule of creditors is not evidence of the names and addresses of the creditors ; it must appear by other evidence. When a composition deed is relied upon, it must appear vrhether there are any creditors who have not signed it. The testimony taken by a referee in such proceedings must be in writing, and subscribed by the vritnesses, and returned to the court with the referee's report. Motion on petition to discharge assignee on final accounting Van Hoesen, J. — ^There are three classes of persons barred by the. discharge of the assignee : First, creditors who have appeared ; secondly, creditors who have been duly cited, but have failed to appear; and, thirdly, those who, after due adver- tisement, have not presented their claims. (Subd. 5, Sec. 20, Assignment Act of 1877.) It must appear on the accounting before the referee that the assignee duly advertised for claims (Sec. 4.) It was not the intention of the legislature that the assignee should, administer the estate without notice to the VOL. I. — 5 66 THE AMERICAN INSOLVENCY EEPOETS. In re Welnboltz. creditors. It must also appear that citations have been issued to creditors and parties interested in the fund (See. 11, 12, and 13), there must be proof that the citation has been duly served, " and it is of course essential that the referee should know who the creditors are, for without such knowledge he cannot tell whether they have all been cited. The original schedule is not satisfactory evidence of this. The books of the assignor, the assignor himself; and the witnesses, may be examined to ascertain the names and addresses of the creditors. The referee should have taken testimony to ascertain whether there are any credi- tors who have not signed the composition. Again, there must be some authority given by the court to warrant the with- drawal by the assignee of the original papers, apd for the sub- stitution of copies in their stead. In this case, the assignee is the sole witness to the signatures of the creditoi-s to the compo- sition agreement and to the release. He goes before a notai-y public by himself, proves as subscribing witness the signatures of the creditors, of the genuineness of the signatures, and then without' any other evidence than the certificate of the notary that he (the assignee) has sworn to them, he asks that his bond be discharged. It will be seen that the whole matter and the interest of the creditors hang on the mere word of a single person, and that person the assignee, who asks that his bond be cancelled and that he be released. He thenoffei-s what pur-, ports to be, and what probably is, a copy of the notary public's certificate, and proposes to leave that, together with a copy of the other papers, instead of the original, on the files of the court. This is too unsafe a method of doing business. The matter must be referred back to the referee to as(3ertain by the examination of witness who are creditors of the insolvent, and whether they have all signed the composition, whether there- was any advertisement for claims, and whether the creditors were duly cited. The original composition agreement and the original release must be returned with the report of the referee. The testimony must be in writing, subscribed by the witnesses. and returned with the report. (Rule 30, General Rules.) THE AMERICAN INSOLVENCY REPORTS. 67 Baker t. Palmer. SUPREME COURT OF ILLINOIS. A plea of discharge under a foreign insolYenoy law must set out the law and must show that the order released the party pleading the same from lia- bility for his debts. BAKER V. PALMER. This was an action of debt by Palmer against Baker, npon a judgment rendered by the Country Court of Hastings County, in the Dominion of Canada. The following is a copy of the third plea referred to in the opinion : " And for further plea in this behalf the defendant says Ckctio non, because .he says that before the date of the supposed judgment in the said declaration mentioned, and before the commencement of this suit, to wit, on, etc., the County Court of the County of Hastings, in the Dominion of Canada, granted to the defendant a discharge in bankruptcy, in the words and figures following, to wit : " Insolvent Act of 1864. In the matter of Wm. Baker, an insolvent. In the County Court of Hastings : " Upon reading the petition of William Baker, ]the above- named insolvent herein, and\ the affidavits and papers filed, and upon hearing the parties and evidence adduced, I do here- by make this my order, granting the discharge, of the insol- vent, the said "William Baker, absolutely and unconditionally, and I do hereby grant the prayer of the said petition and the said insolvent is hereby discharged absolutely and uncondi^ tionally under said Act. "Dated at Belleville this l4th day of November, a.d. 1868. « J. H. Sherwood, J. C. H." "And the defendant further says that tlp^everal supposed causes of action in the said declaration mentioned are in re- 68 THE AMERICAN INSOLVENCY BEPOETS. Baker v. Palmer. spect of debts and claims, and each of them is in respect of a debt and claim by the said Insolvent Act of 1864, which de- fendant says is one of the laws of the Dominion of Canada in which the said county of Hastings is situated, made provable against the estate of the defendant, and which existed on the said 14th of November, a.d., 1868, and were within the juris- diction of the said Dominion of Canada, and subject to the laws thereof, to which the said plaintiff o*es allegiance ; and that the supposed causes of action are not, or are any, nor is any one of them in respect of any such debts or debt as are or is by the said act exc.epted from the operation of a dis- charge in bankruptcy, and this the defendant is ready to ver- ify," etc. Henry Y. Freeman, for appellant. Waite & Clarke and R. M. Dorman, for appellee. Walker, J. — It is urged tliat the court below erred in sus- taining defendant's demun-er to plaintiff's replication to his third plea to the plea itself. The plea is clearly bad. It is an attempt to' plead a discharge from the claim sued on in the Canada court. It is defective for several reasons. It does not show or aver that th^ order discharging defendant released or freed hini from liability from this judgment or from any other debt. The order set out in the plea only dis- charges defendant absolutely and nnconditionally under the Insolvent Act of 1864. The Act is not set out in the plea, and we cannot take notice of the terms of a foreign law. For aught we can know, the order may and probably did only dis- charge him from imprisonment for debt. The order fails to show, so far as it and the plea are concerned, that it was in- tended to release and discharge appellant from his debts, or any class thereof. The plea was entirely defective and the demurrer was properly sustained. Judgment affirmed. THE AMERICAN INSOLVENCY REPORTS. 69 Mueller; etc., t. Dobsobutz et al. STJPREME COURT OF ILLINOIS, THIRD GRAND DIVISION. Opinion Filed September 30, 1878. 1. Assignment for creditors and ctmposition. — Wbere an assignment is made for the benefit of creditors, and a composition agreement is signed by some of the creditors conditioned that all the creditors shall sign it, the release is not binding nntil all hare signed. 2. Preserving the UabUity of sureties— .A oreditoi dgning such an agreement can stipulate that the liability of sureties shall be retained, and it is suffi- cient if this stipulation is entered below the signature and is not in the body of the instrument. SOLOMON MUELLER, Ex' r., etc., v. MORITZ DOB- 8CHUTZ et al. (The facts are sufficiently stated in the opinion.) William Minkleman, for plaintiff in error. C W. and E. L. Thomas, for defendant in error. Opinion by Mr. Justice Schofield. This action was instituted by the appellant against the appellees to recover the amount claimed to be due on the fol- lowing promissory note : $1,600.00. Bellevillb, Ills., Febeuaey 20, 1874. Two months after date we promise to pay to the order of George Mueller fifteen hundred dollars for value received, ne- gotiable and payable without defalcation or discount, and with interest from date at the rate of ten per cent, per annum. Henky Abend. DOBSCHUTZ & AhEKD. Feed. E. Sohell. Appellees relied upon the defense that they were released from liability upon the note by the execution by the payee named in the note (the plaintiff's intestate) and others, of the following instruments : , \ 70 , THE AMERICAN INSOLVENCY EEPOETS. Mueller, etc., v. Bobachutz et al. " Know all men by these presents that we, the undersigned creditors of Henry Ahend, in consideration of the execution and delivery of a certain deed of assignment, executed by said Hem-y Ahend and Mary E. his wife on the 7th day of August, A. D., 1874, to one Sebastian Fietsam as trustee, said deed of assignment being made of the property of said Ahend for the benefit of all his creditors, have hereby each of us for our- selves, our heirs, executors, successors, and administrators, re- mised, released, and forever quit-claimed, and by these pre- sents do remise, release, and forever quit-claim, unto the said Henry Ahend, his heirs, executors, and administrators, all and all manner of action and actions, cause and causes of action, suits, bills, bonds, writings, obligations, debts, dues, duties reckonings, accounts, sum and sums of money, judgments, exe- cutions, quarrels, controversies, trespasses, damages, and de- mands whatever, both at law and equity or otherwise howso- ever, which against him, me, or either of us, had, or now have, or which we or either of us can, shall, or may have, claim, challenge, or demand, for or by reason or means of any act> matter, cause, or thing, from the beginning of the world to the day of the date of these presents. " In witness whereof " etc. (Signed and sealed.) [August 8, 1874.] " We, the undersigned creditors of Henry Ahend, hereby agree that if the said Abend will make an assignment pf all his real and personal estate of all kinds and characters what- soever to an assignee for the benefit of all his creditors, we will accept from such assignee, each one, apro rata share of the proceeds arising from said real estate and personal estate, when reduced to money, in full payment of, our several claims against such Ahend. " It is hereby stipulated that in ease this is not agreed to by all the said ci'editoi'S and the said Ahend it shall not be binding upon us who shall have signed the same, and that the above-mentioned assignee shall be chosen by a majority of the THE AMERICAN INSOLVENCY REPORTS. 71 Mueller, etc., v. Dobsohutz et al. creditors, taking into consideration the amount , due to snch creditors as well as the numbers of the same. " August 5, 1874." • . It was admitted by the parties to the suit that Dobschutz & Abend and F. E. Schell, are the securities of Henry Abend, and that they are the same persons that signed the two instru- ments read in evidence. Plaintiff, in rebuttal, proved that one William Glass was a creditor of Henry Abend at and before these instruments were signed, and that Glass and a few other creditors of said Henry Abend never signed the instruments, but that creditors who did not sign got their pro rata share. Evidence was also given tending to show that Dobschutz was present when Mueller signed the instrument. And it was proved that Mueller's name was signed by another, whom Mueller especially instructed that his signature was to be aflSxed only upon condition that it did not release the sureties upon the note. The court at appellee's request instructed the jury as follows : " The court instructs the jury, that a written release whith releases one security will release all, and if the payee in the note in question signed a written release which does not in the body except the securities, and by that means released any of the securities, all will be released. " The court instructs the jury, that if they believe from the evidence that this cause of action is upon a promissory note, and that defendants were securities upon the note, and that the payee released the principal on the note by a wHtteu release, then the release operated to release the securities, and the fact that payee added to his name the words ' expressly understood that the securities are not released ' will not change the above rule." To the giving of the above instructions the plaintiff ob- jected ; objection overruled by the court, and the decision then and there excepted to by the plaintiff, and thereupon said in- structions were read to the jury. 72 THE AMERICAN INSOLVENCY REPOETS. Mueller, etc. , v. Dobschutz et aL The jury, returned a verdict iu favor of appellees. Appel- lant moved for a new trial, which the court overruled, and rendered judgment upon the verdict. The errors assigned, question these rulings of the court. It is enough to say of the last agreement of release that it is upon the express condition that it- shall not be binding unless assented to by all the creditorsj and the evidence shows that it was not? thus assented to. It is unimportant that some or all •of the creditors not thus assenting have since received their pro rata part. It does not appear that they have ever assented to the terms of the release, or that they accepted the amount paid them in discharge of their claims against Abend, and in the absence of such proof we perceive nothing to prevent their recovering judgment against him for the balances still due them respectively. What has been paid them was not paid pursuant to the terms of the release, but in disregard of its terms. Appellant's signature to the first instrument is followed by these words : " Expressly understood that the securities are not released." Wq are of opinion that these words, though not appearing in the body of the instrument, are competent evi- dence of the condition upon which he was willing to become a party to it. (Chitty on Bills, 8th Am. Ed., 160; Story on Promissory Notes, Section 23 ; 2 Parsons on Bills and Notes, 539.) Assuming the evidence to have been inadmissible, it is very clear that the sureties were not released, for an agreement which preserves the right of the creditor to proceed against the surety, or the right of the surety to proceed against the principal, will not discharge the surety. {Rucher v. Eohinson, 38 Mo., 154 ; Morse v. Etmtingion, 40 Vermont, 468, 496 ; JPrioe V. Bairker, 4 Ellis and Blackburn, 760; 82 Eng. Com. Law, 760; Kemley v. Cole, 16 Meeson & Welsby, 128; Veiley v. Hoag, 24 Yt., 46; Hubbell v. Carpenter, 1 Selden, 171.) It is impossible to point out how, by Mueller's subscribing the release upon the condition expressed; the sureties have been THE AMERICAN INSOLVENCY REPORTS. 73 In le Ransom. prejudiced. They were left free to sue the principal, and there was nothing inhibiting hini from doing so if it were material to preserve the liability of the sureties. The court erred, therefore, in our opinion, in giving the instructions asked by appellee, and in overruling appellant's motion for a new trial. The judgment is reversed and the cause remanded. Keversed and remanded. COMMON PLEAS— NEW YORK. Sfeciai. Term, Jonb, 1878. There is no authority for an order or direction by the court to authorize or em- power assignees under the General Assignment Act of 1877 (Laws N. Y., Chap. 4(i6) to compromise claims due the assignee's estate at the discre- tion of the assignee. Such an order would virtually annul the authority given by statute to the county Judge to authorize the compromise or compounding of a claim, upon good and suf&cient cause shown therefor. The power of the county judge to allow a debt or claim to be compromised by an assignee which is due an insolvent debtor, relates to the circumstances of each particular case, and he cannot delegate such authority to another. In re RANSOM. Daxt, 0. J. — This is an application on- the part of the as- signee that he may be authorized to compromise all claims due to the assignors, vpth their advice, at his discretion. The peti- tion set forth that a large portion of the assets of the assignee's estate consists of claims against persons in the Southern States ; that these claims are about four hundred and sixty in number, and of various amounts, from two dollars to two thousand one hundred and fifty dollars ; that sixty of them cannot, as the as- signor believes, be collected in cash, for the reason, among others, that they are in suspense, and that the assignee has learned by long experience that delay in settling such debts — especially in the Southern States — usually ends in total loss. There is no authority for an order of the court conferring 74: THE AMERICAN INSOLVENCY EEPORTS. In re Bansom. upon an assignee such a general power as this. Ordinarily the assignee of an insolvent estate has no general authority to com- promise claijns due to the estate, unless the power to do so is given by statute or by the assignment, or it is assented to by the creditors. {Shepard v. Trowgood,.! T. & K., 380 ; Hill on Trustees, 344, 4th Amer. Ed.) Before the enactment of the various statutes by which vol- untary assignments \ov the benefit of creditors were brought imder positive statute regulations, authority might be given in such instruments to the assignee to compromise such debts as in the exercise of a sound disci-etion were doubtful. {Dow v. Plainer, 16 N". Y., 566 ; Bellows v. Partridge, 19 Barb., 178 ; Brigham v. Tillinghast, 15 Id., 618.) Now, however, the ex- ercise of this power is regulated by statute, and is to be exer- cised only in the manner declared by statute. Provisions analogous to those enacted in the Eevised Statutes in the vari- ous cases of assignees of insolvent debtors appointed under the Revised Statutes have recently been applied to the assignees in voluntary assignments for the benefit of creditors. It was provided by the Revised Statutes (2 Rev. Stat., p. 42, Sections 7, 9), that the assignee of an insolvent debtor might, under the order of the officer appointing him, compound with any person indebted to the debtor. In such a case the judi- cial officer would have to have the facts of the particular case before him before he could make an order that the debt might be compounded and the debtor discharged, for .there is clearly no authority to make a general order that the assignee might compound any of the claims against the estate which in his discretion he thought proper. Power is given to the surrogate by the Act of 1847 to authorize an executor or administrator, upon good and suffi- cient cause shown, and upon such terms as the surrogate may approve, to compromise any debts or claim due to the estate (Laws of N. Y., 1847, Chap. 80, Sections 1, 2), which, even more distinctly than the previous statiitory enactment, shows that the officer is to judge, upon the facts of the case, whether the particular debt should be compounded or not ; and even THE AMERICAN INSOLVENCY REPORTS. 75 In re Ransom. in this case the compromise is not beyond future inquiry, for the statute provides that the compromise, although made by the authoiity and with the approval of the surrogate, shall not prevent any person interested in the final settlement of the estate from showing that such debt or claim was fraudulently or negligently compromised or compounded, leaving the com- promise, in fact, at least to this extent, at the risk of the ex- ecutor or administrator. The power given to the county judge by the Assignment Act of 1877 (Laws of N. Y., 1877, Chap. 466, Sec. 23), to allow an assignee to compound a claim or debt is, in all its essential features, the same as the power given to the surrogate by the Act of 1847. Good and sufficient cause must be shown to the county judge, and the debt or claim is to be compromised or compounded on such terms as he> may direct. It Js evident from this, that the circumstances of the particular case are to be laid before him, and that he, and not the assignee, is to determine whether the debt should be com promised or not, as well as upon what terms ; yet what in reality is asked in the order applied for is that the assignee shall, in this respect, be substituted for the judge ; that he is to have the power of compromising any of the claims, and of deciding upon what terms. The order I am asked to make is in these words : " Ordered, that the said assignee be and hereby is authorized to compromise, in his discretion and upon the best terms that he can obtain, all claims due to the copart- nership firm of W. A. Ransom & Co., and to receive in set- tlement thereof cash, notes, securities, or such available assets as he may deem best ; provided that said assignor shall not compromise any claim that shall exceed in amount the sum of one thousand five hundred dollars, without making a special ap- plication to the court in reference thereto." This would be vir- tually annulling the statutory enactment that the county judge may, for good and sufficient cause shown, and on such terms as he may direct, authorize the assignee to compromise or com- pound any claim or debt belonging to the estate ; for, under such a general order, it is not the judge but the assignee who decides in the case of any debt nndei* one thousand five hun- 76 THE AMBEIOAIT rNSOLTBNCT EEPORTS. In re Ransom. dred dollars, both as to the sufficieucy of the cause for com- promising it and as to the terms. The assignee states that he has learned by long experience that delay in settling such debts as exist in this ease, especially where tiiey are in the Southern states, usually ends in total loss. This is probably true, but it would be no reason for ig- noring the positive provisions of a statute. It does not, how- ever, necessarily follow that great delay must ensue unless the assignee is clothed with this large discretionary power. Offers to compound debts usually come from the debtor when he is called upon for payment, accompanied by a declaration or representation of his inability to pay more in discharge of his obligation than the amount offered, and offers to compromise, where claims are disputed, are usually preceded by negoti- ations. If the assignee, who is here in New York, receives, in his efforts to collect the claims, a large number of offers to set- tle debts which he thinks should be promptly accepted, it is a very simple matter for him to go before the judge any day and give his reasons, which may be briefly expressed in a general affidavit, in respect to every debt sought to be com- pounded. It may involve a little trouble, but not more than usually attends the winding-up of insolvent estates by trustees who do their duty faithfully and carefully. It does not there- fore follow that a delay in settling which may result in the total loss of these debts must ensue because the assignee has to get the sanction of the judge to the compounding of a con- siderable number of debts. The chief parties in interest are the creditors for whose benefit the assignment is made. They have had nothing to do with the choice of the assignee. He is selected by the insolvent, giving bonds for the due execution of his trust. If the court, by a general order of this kind, leaves the compounding of debts and the terms upon which they shall be compounded wholly to him, he may act judi- ciously or not, and the creditors are concluded, unless^ upon the final accounting, they can establish that there was fraud or negligence on his part in compounding a debt (Section 23). It may, therefore, as a general rule, be quite as much to their THE AMERICAN INSOLVENCY REPORTS. T7 Briennaii et al. y. Wilson et al. interest that there should be the supervision of a judge in the compounding of any claim as that the compounding of claims should be left entirely to the judgment and discretion of the assignee. At all events, that is what the statute has provided for, and it cannot be disregarded. The application is con- sequently denied. COURT OF APPEALS— NEW YORK. October Tbbm, 1877. The failure of an assignee to give the seourety as required of him under the general assignment act of 1860, does not invalidate the assignment, but the title passes to him in trust, if he accepts the assignment, but he can- not act under it until security is filed on his behalf as required by the statute. Where one of several assignees (all accepting the trust) fails to qualify by giving the security as required by the statute, he cannot join witli the others and convey a good title to real property so assigned to them. BRENWAN, Eespt. et al, v. WlLSOIf, et al, A^lt. This was an action to set aside an agreement to purchase -land and to recover back a part of the purchase-money paid. It appeared that D. and M. made an assignment for the benefit of creditors (under the Act of 1860) to W., N. and T. The three assignees accepted the trust in writing. Two of them, W. and U., filed a bond as required by the statute, but T. did not join, and he refused to act as one of assignees. A subsequent assignment was made by D. and M,, the original assignors, to W. . and N. alone as assignees. A deed was tendered to plaintiffs,^ executed by the three assignees W., N. and T. and the as- signors and their wives, which was refused by the plaintiffs, who brought this action. On a trial before a referee he rendered judgment for de- fendants on the ground that the deed so tendered was properly executed. The Greneral Term reversed this judgment and ordered a new trial. The defendants stipulated and appealed to this court. 78 THE AMERICAN INSOLVENCY REPORTS. V Brennan et al. t. Wilson et al. Allen, J. — By the assignment of the 2d of July, 1875, and the acceptance of the trust by the defendants and Trimble, the assignees named therein, the property real and personal of the assignor vested in the assignees in trust for the creditors. The title did not remain in the assignor, nor was it in abeyance • awaiting the giving of security by the assignees as required by statute, or the performance of any condition subsequent to the assignment. The creditors of the assignor acquired an interest in the assigned estate, and could enforce the execution of the trust. Th6 statute. Chap. 348 of the Laws of 1860, regulating voluntary assignments for the benefit of creditors, does not nialie the giving of the statutory security by the assignees a condition precedent to the vesting of the estate in the trustees, nor does the failure to give the security within the time limited invalidate' the transfer and restore the title of the assigned property to the assignor. This has been so held by this court, and by the Commission of Appeals. {Thrasher v. Bentley, 1 Abb. N. Cases, 39, 59 N. T., 649 ; Syracuse, etc., RR. Co. v. CoUins, 1 Abb. N. Cases, 47, 57 N. Y., 641.) The question was considered by Judge Grover in Juliard v. Rathhone (39 N. Y., 375), but it was not necessary to decide it, as the judg- ment was necessarily as given whether the court held the one way or the other on the point now under consideration. The remarks of the learned judge upon that branch of the case did not necessarily embody the views of the court, and may be regarded as obiter, and the judgment as passing upon the other ground suggested by him. The three assignees having accepted the trust, the effect of the acceptance was conclusive, and they could not collectively or severally afterwards, by re- nunciation or disclaimer, throw off or repudiate the duties and responsibilities of the office, or divest themselves of the title once vested in them. (Hill on Trustees, 221, and cases cited in note (b) ; Shepherd v. McEvers, 4 J. C. R, 136 ; Cruger v. Halliday, 11 Paige, 314.) Trimble, with the defendants, formally and in writing ac- cepte(i the trust, agreeing faithfully to perform tlie same, and thus made himself a party to the deed. This was a deliberate THE AMERICAN INSOLVENCY EEPORTS. 79 Brennan et al. v. Wilson et al. and nneqnivocal act, perfecting tfhe transaction, and making the transfer irrevocable. (Hill on Trustees, 219, and note (1).) Had Trimble disclaimed the trust by refusing to sign the writ- ten acceptance with the defendants, repudiating it when ten- dered, and doing no act in execution of the trust, or inconsis- tent with the disclaimer, no title to the estate would have vested in him, and the deed would not have taken effect. But having accepted, he could only be relieved of the trust and divested of the estate by the order of a court of competent jurisdiction, and this might have been done upon his resigna- tion, or his removal from office for a non-compliance with the statute. {Briggs v. Bmis, 20 N. Y., 15 ; S. C, 21 id., 574.) A trustee having once accepted the trust in any manner, a purchaser cannot safely dispense with his concurrence in a sale of the trust estate, notwithstanding he maj' have attempted to disclaim, and although he may have released his estate to his co-trustees. {Crewe v. Picken, 4 Ves., 97.) All the trustees must unite in a disposal of the trust property, and a deed by two, while a third is living, is not valid. The trustees take as joint tenants, and must all unite in the execution of the trust, and especially in a deed of lands. (Story Eq. Jur., Section 1280 ; Brinckerhoff v. Wemple, 1 Wend. E., 470 ; Thatcher V. Candee, 4 Abb. Ct. of App. Dec's, 387.) By the first assign- ment Duke and Moor, the assignors, were divested of all tille, and nothing passed under the second assignment to the defend- ants alone, or by their deed to the plaintiffs. {M'arvine v. Smith, 46 N". Y., 571.) The assignee, Trimble, did not at any time " enter into a bond," with or without securities, for the faithful discharge of his duties as assignee. The bond given was by the defendants, with sureties, for the performance by them of their duties. It was in no sense a bond of or for Trimble, and the sureties would not have been liable for his misfeasance or non-feasance in the execution of the trust. His name as principal, as well as one of the assignees for whose good conduct the sureties become sponsors, was erased from the bond, and upon oyer of the bond this would have appeared. The finding of the learned judge upon the trial, that the de- 80 THE AMERICAN INSOLVENCY REPORTS. Clark V. Stanton. fendaiits on the Slst of July, 1875, executed ou behalf of the three assignees a bond under the act with sureties, is against the evidence and inconsistent with the previous finding that Trimble had, on the 13th of July, renounced the trust and re- fused to act as one of the assignees. Trimble was not a party to the sale to tlie plaintiffs, but did unite in the deed tendered them* This act was a nullity, as it was forbidden by law. Before giving the bond with sureties as required, and without giving such bon(J, he bad no power or authority to sell, dispose of , or convert to the purposes of the trust any of the assigned property. This is expressly declared by Section 3 of the statute before quoted, and the prohibition is absolute and cannot be disregarded by liim or by courts, and the cestuis que trust under the assignment, or trustees wlio may succeed him, may inquire into the validity and legality of his acts under the trust deed. His trust was a dry trust, merely to take possession and ' hold the property until he should become qualified and have authority under the statute to dispose of it and convert it to the purposes of the trust. As he could not lawfully unite in the deed, it was in effect but the deed of the defendants, two of the three trustees, and did not make a title to the premises which the plaintiffs were bound to or could safely accept. The order granting a new trial must be affirmed, and judg- ment absolute for the plaintiffs. " All concur." SUPREME COURT OF MINNESOTA. « October, 1877. The juriBdiction over asaiirnments for the benefit of creditors, and proceed- ings thereunder, granted by Chap. 44,, General Laws, 1876, is vested in the several District Courts, to be exercised through the judges thereof as their organs. In exercising this jurisdiction, the court may remove an assignee for any misconduct in the adminUtration of his trusts under the assignment which shows such removal to be necessary in order "to in, sure a faithful performance of the trusts, and a speedy close of the same THE AMERICAN INSOLVENCY REPORTS. 8J Clark y. Stanton. by final decree of settlement and distribution." The petition authorized by Sec. 10 of the statute, showing a default of the assignee in not filing his report, may be made and filed by either of two assignors as a "person interested in the estate," within the meaning of that section. The in- vestigation authorized by the statute is a summary one, to be conducted under the control and in the discretion of the court, to the end that it may acquire the requisite information to act advisedly in the exercise of it, supervisory jurisdiction over the assignment, and the proceeding thereunder ; and whether the creditors become parties to it or not, any fact tending to give such information is a proper subject of inquiry. It is not error to allow any of the creditors to become parties, and participate in such investigation, during any stage of the proceedings. The utmost good faith and integrity are required of an assignee in trust in the administration 'of his trusts, and he will not be. permitted tp take any advantage of his position, or information as assignee, to make advan- tageous bargains for himself, to the prejudice of the trust estate, or any of his cestui gue tmsta ; nor if he makes any such, will be allowed to re- tain the benefits of them. In adjudicating upon the claims of an assignee, in final settlement of his accounts with the trust estate, no private agreement between him and either of his assignors is sufiicient to authorize the allowance of a claim which would be unauthorized under the assignment. Where, in an assignment by two persons as partners, it is provided that upon a fulfilment of the trusts, the residue, if any, of the property shall be reconveyed to the assignors, the jurisdiction of the court under this stat- .-, ute ends with the final decree, distributing the trust property or Its pro- ceeds, and directing a reconveyance of the residue according to the terms of the assignment, and it is'not required of the cruri that it should de- termine the respective interests of the assignors in such residue, or mak- ing any apportionment thereof, between them. An appellant can only urge such objections to a judgment appealed from as aSect his interests. K B. CLARK, Respondent, v. JJJDSON A. 8TAN- TOljI, Appellant. Appeal from judgment and order of District Court, County of Steams. Cornell, J. — It is contended by appellant that the juris- diction over assignments for the benefit of creditors, and pro- ceedings thereunder, which is given by Chap. 44, General Laws of 1876, is vested solely in the several judges of the Dis- trict Courts of this State, and not in the courts themselves as such ; .that in using the expression, " Judge of the District Court," in designating by whom the powers conferred are to be exercised, the statute recognizes a distinction between the judge and the court, and indicates the former and not the latter as the depository of such powers. Hence it is claimed that the District Court can take no cognizance of any proceedings in- VOL. I. — 6 82 THE AMERICAN INSOLVENCY EEPORTS. Clark y. Stanton. stituted under it ; and inasmuch as the District Judge, in ex- ercising the authority which it confers, acts solely as an officer, deriving all his powers from its provisions, he can only exer- cise such as are especially conferred. The statute is a reme- dial one, to be liberally construed with reference to its de- clared purpose, which is " to protect the creditors of assign- ors, and to regulate the duties of assignees." By it every assignment or conveyance of the character indi- cated, together with the statement specified in Sec. 2 of the act, is required to be filed with the clerk of the District Court of the county wherein the debtor making it resides. The bond which the assignee is required to execute before entering upon his duties, must be approved by the judge of the District Court and filed with its clerk, and the court is authorized to grant leave to any creditor to prosecute the bond on a breach of any of its conditions, and to apply the proceeds in satisfac- tion of the debts. Section 8 distinctly recognizes the fact that such filing of the assignment, bond, and inventory with the clerk is a filing in court. The processes which are authorized to be- used in aid of the jiowers conferred, to wit, a citation, attachment, and summons, are such as appropriately belong to a court, to en- able it to subject parties to its jurisdiction, and to enforce a performance of its judgment or orders. The general power of supervision and control given over the proceedings, together witli the authority to fully investi- gate the same, and to make any and all orders that may be proper and necessary to insure a faitliful performance of the trusts created by the assignment, and a speedy close of the same by a final decree of distribution in accordance with the purposes of the assignment, necessarily involves the exercise of judicial power of such a nature as only a court having juris- diction in equity as well as law can enjoy exercise. Under our Constitution, District Courts are the only ones competent to take and exercise originally a jurisdiction of this character. To give effect, then, to the provisions of this stat- ute in respect to all powers of this character which it assumes THE AMERICAN INSOLVENCT RBPORTa Clark T. Stanton. in terms to confer upon " the judge of the District Court," it must be presumed they were intended to be vested in the court itself, to be exercised by the judge aa the authorized oiBcer by and through whom its judicial functions are to be adminis- tered. That the proceedings herein, therefore^ were commenced and prosecuted in the District Court, fui-nishes no ground for alleging error. The respondent petitioner was one of the par- ties who made the assignment. He was " a person interested in the estate," within the meaning of Section 10 of the statr ute, and a proper party to file the petition showing a default on the part of the assignee in not filing his report according to the provisions of that section. The petition showed such de- fault, and was sufficient authority, for the court to issue its ci- tation to show cause, to the assignee, and for the subsequent proceedings which were had, whereby his report was caused to be filed, and the investigation was instituted. The object of the investigation as allowed by the statute was to obtain the requisite information to enable the court to act advisedly in making^such orders as might be " necessary to insure a faithful performance of the trusts, and a speedy close of the same by final settlement and distiibutioh of the estate." Its conduct was largely in the discretion of the court, as no particular mode of procedure is prescribed. Its scope was only limited to an inquiry into such facts as were pertinent and material to the purpose of the investigation, which was to inform the conscience of the court, so that its supervisory ju- risdiction over the proceedings under the assignment might be properly and judiciously exercised. Within these limits it was in the discretion of the court to allow the examination to be carried to any extent irrespective of the speqific charges con- tained in the petition, or the wishes of either the assignors or the creditors. It was immaterial, therefore, whether the co- assignor, William H. Clark, or any of the creditors, became parties to the investigation or not, as the legitimate scope of the examination was not thereby necessarily affected. Then the ruling of the court in allowing , some of the creditors to file replies to the report of the assignee in no way 84 TH*! AMERICAN INSOLVENCY EEPOBTS. Clark T. Stanton. prejudiced hii'n, as it opened no new field of inquiry, and it did not in the least change the character of the investigation, which it was the duty of the court to make, irrespective of such ■ replies. It was within its jurisdiction of its own motion, the appel- lant being properly before it, to make full inquiry into his conduct, dealings, and transactions as assignee, in order to as- certain the manner in which the trusts were being performed, and whether he was a suitable person to be longer continued in their administration. Evidence tending to show bad faith on the part of the as- signee towards his cestui que trusts, that he purchased ■ of ' them demands against the trust estate at a large discount for his own benefit ; that, in making such purchases he concealed fi'om them the actual value and condition of the trust proper- ty', and misrepresented the purpose and effect of the assign- ment which he procured, was clearly competent upon the question of his integrity and fitness as assignee. Noreof the evidence received in this case seems to us open to any valid objection, as being beyond the legitimate scope of the exami- nation. The permission which was given to the creditors to file replies to the report of t|ie assignee, and to take part in the proceedings was, in our judgment, a proper exercise of discretion under the circumstances. The allegation therein contained, if true, tended strongly to impeacli the honesty and integrity of appellant as assignee, and the validity of the assignments which he obtained from the creditors upon the settlement and transfer of their claims against the estate. Under these circumstances it was proper to give them a hearing, for if the facts therein alleged were proved, and invalidity of the settlement and transfer estab- lished as to any of the creditors, such creditors would have a right to be consulted in the future management and disposi- tion of the trust estate, as still having an interest therein. The fact that appellant had transferred the demands which he had so purchased, did not preclude the court, in the adjust- ment of his claims and account as assignee, from examining the THE AMERICAN INSOLVENCY REPORTS. 85 Clark T. Stanton. character of such purchases and assignments and adjudicat- ing upon their validity as between him as assignee and the estate. That the assigned property was ample, under proper man- agement, to fully satisfy and discharge all indebtedness against it, together with the expenses of executing the trusts, and leave a surplus for the assignors ; that the administration of such trusts were being unnecessarily and unreasonably delayed; that the assignee had misused his position and knowledge as trustee to speculate in claims against the estate for his own benefit, and had improperly employed a portion of the trust funds for that purpose ; that in purchasing such claims, he grossly violated his duties and obligations as trustee, by con- cealing from the creditors correct knowledge of the value and condition of the trust estate, and thereby, and by misrepresen- tations induced a belief in its insolvency, and secured to him- self advantageous bargains and transfers, under the false pre- tence and impression that the estate alone was to receive the benefit of the transactions, instead of himself, are facts fnlly established by the evidence and findings, and constituted sufiicient grounds for his removal, if the court possessed the power, and for a full settlement and adjustment of his ac- counts and dealings with the estate as assignee. That this power of removal for adequate cause, is vested in the District Court, as a court of equity, and may be exercised* in a proper action brought for that purpose, is undoubted. {Goucelier v. Fm'et et at.. Minor, 13 ; Sees. 26 and 27, Gh. 33, General Statutes.) No good reason is perceived why it may not also, be exercised, in proceedings under the statute in question, when- ever it becomes necessary, in order " to insure a performance of the trust, and a speedy close of the same by final decree of settlement and distribution." During the administration of his trust, the assignee bought claims against his assignors, amounting to ten thousand one hundred and sixty-three dollars and twenty-eight cents, for the sum of six thousand one hundred and sixty dollars and twenty- four cents, and took assignments thereof from the creditors, ii> THE AMEEICAN INSOLVENCY EBPOBTS. Clark y. Stanton. his own name. In making these purchases, he advanced of his own funds two thousand iive hundred and forty-two dollars, the balance being taken out of moneys belonging to the trust estate. In the settlement of his account as assignee, the court credited him with the amouilt of his advances and interest during the time the estate ha,d the benefit of them, but dis- allowed his claim to be treated as a creditor of the estate, in respect to such demands, and to be paid their full par value and interest. The utmost honesty, integrity, and good faith are required of an assignee in trust, in all his dealings with the trust prop- erty and his " cestui que trusts." He is held to a strict ac- countability for any act of negligence or abuse committed in the administration of his trusts, and for any misappropriation of trust funds to purposes unauthorized by the instrument of assignment. The fiduciary character of his position precludes him from taking any advantage of his influence as assfgnee, or for any information acquired while acting in that capacity, for purposes of personal gain or profit. Every agreement, having such an object, made with his assignors or with any of their- creditors, especially if not communicated to and approved by all, is looked upon by the courts with great suspicion and distrust, and, if tainted with the slightest evidence of fraud, conceal- ment, or misconduct, on the part of the assignee, in its procure- ment, will be set aside as inequitable and unjust, and he will uot be permitted to reap any personal advantage therefrom. These are general principles too well settled to require the citation of authorities. (Perry, on Trusts, Sees, 209 and 427 to 430.) Upon the findings and the evidence herein, it is evi- dent that the bankruptcy proceedings which were threatened and instituted by a portion of the creditors were caused by the misconduct and culpable delay of the assignee in the execution of his trusts, and the apprehension of loss to the trust estate, thereby reasonably excited. If, therefore, it was necessary to purchase the claims of these creditors, to stop these proceed- ings, it was owing to the fault of the assignee. As to all the THE AMERICAN INSOLVENCY REPORTS. 87 Ciaik y. Stanton. purchases made and discounts obtained, the creditors acted under like apprehension of loss, occasioned by the misconduct of the assignee, in studiously concealing from them the real condition and value of the trust property, procrastinating a set- tlement .of the estate, and in most, if not all the cases, inducing them to believe that all compromises effected would enure solely to the benefit of the estate. Neither did he inform them of the existence of any arrange- ment or understanding between him and either of the assignors, whereby he was to derive only personal benefit to himself from such purchases. Under these circumstances, the court was clearly right in disallowing his claims, especially in view of the written pro- tests against it, on the part of the defrauded creditors. Though both assignors had joined in asking its allowance, it ought not to have effected *he result. It was. unnecessary to consider the validity, as between themselves, of the alleged written agree- ment between the assignee and his assignors, in order rightly to adjudicate upon the claims and accounts of the former, under the assignment, for such adjudication depended wholly upon the terms of the assignment, which neither could modify the doings of the assignee under it, and those equitable princi- ples which are applicable in such cases. The proper adjudication of this question did not require the court to determine how much and what portion, if any, of the trust estate would remain after the fulfilment of the trust, to be .reconveyed to the assignors, and ascertain their respective interests thereiUj and make appointment accordingly. Its entire jurisdiction in these proceedings was to see that the trusts created by the, assignment were fulfilled by satisfy- ing the expenses incurred thereunder, the debts fastened upon the trust estate, and restoring' the residue of the property, if any, to the authors of the trusts. The appellant assignee is the only party bringing this ap- peal. He can only be heard, to urge such objections to the judgment as affect his interests alone. Thie only respect in which he is affected by it is in his removal as assignee, and in 88 THE AMERICAN INSOLVENCY EbPOBTS. Eingman T. Barton. the adjustment of his accounts and claims as such assignee against the estate. Whether the creditors or assignors are properly protected by it or not, in their respective interestB undet the assignment, is a matter of no concern to him, and cannot be considered on this appeal. The judgment is affirmed. SUPREME COURT OP MINNESOTA. Decbmbeh, 1877. Under the Act of March 4, 1875, entitled "An Act to protect the creditors of assignees and to regulate the duties of assignees," the requirement in Sec- tion 3 that the assignees shall, within fivo days aJter the filing of the inventory by the assignor, file a bond conditioned as therein provided, is imperative, and if he fails to file the bond within the time, his interest in property assigned ceases. A. F. KINGMAN, Respondent, v. ASA BARTON, Sheriff of tihe County of Rice, Appellant. Appeal from a judgment of the District Court for the County of Rice. GiLFiLLAN, 0. J. — One Humre made, acknowledged, and on August 14, 1876, filed in the office of the Clerk of the Dis- trict Court, in the County of Eice, an assignment of his prop- erty to plaintiff in trust for the benefit of creditors. On the 21st he filed the inventory required by the Act of 1876 ; on the 30th the bond of the assignee required by the act was ap- proved by the judge of the court, and on September 4:th was filed in the office of the clerk, and the plaiutifE took possession of the property. After this the defendant, as Sheriff of Rice County, took the property from plaintiff under an attachment and execution against Humre. Whereupon plaintiff brought this action in replevin and had judgment below, and defendant appeals. THE AMERICAN INSOLVENCY REPORTS. 89 Kingman v. Baiton. Subd. 6 of Section 2 of the act referred to, p. 62, Laws bi 1876, provides that within ten days after filing the assignment, the assignor shall file with the clerk " a full, true and complete inventory cf such debtor or debtors' estate both real and per- sonal, in law or in equity, and the incumbrance existing thereon, and of all vouchers and securities relating thereto, and the value of such estate and such item thereto, to the best knowl- edge, information and belief of such debtor or debtors." This inventory is. to be under the debtor's oath. Section 3, that " before any such assignee or assignees shall have power to take possession of any such estate so assigned, or any part thereof, or shall have any authority to sell, dispose of, or convert to the purposes of the trust, any part of such es- • tate, and within five days after the filing of the inventory " such assignee or " assignees " shall execute and file with the clerk a bond, with sureties approved by the judge of the District Court, in amount at least double the value of the estate assigned, and conditioned on the faithful and just performance of all the duties of such assignee or assignees. Section 6 subjects all the proceedings to the order and su- pervision of the District Court. The proceeding is in the nature of a judicial proceeding. {Cla/rh v. Stanton, MSS., 2 N. W. Rei)t., 28, and ante, p. 61.) We think the absolute title to the property assigned does net rest in the assignee until the bond required by Section 3 is filed. Until then it is inchoate or conditional, depending for its continuing upon his filing the bond ; but between the filing of the assignment and the filing of the bond, the court would undoubtedly protect the inchoate or conditional title to the property, not only as against acts of creditors and third persons, but of the assignor. The intent of the legislator, un- equivocally expressed, that the assignee shall have no power over the property until the bond is filed, goes far to show that it must be filed within five days. For the filing of the assignment suspends the power of the assignor for the time, to further dispose of the property, and of the creditors to proceed against it for satisfaction of their 90 THE AMERICAN INSOLVENCY KEPORTS. Kingman v. Baxton. debts without vesting in assignee, until he files the bond, the power to dispose of, or even taking possession of the property. It is hardly to be supposed that the Legislature intended this anomalous condition of things, perhaps temporarily necessary, but nevertheless hurtful both to the assignor and the creditors, to be of long or indefinite continuance. On the contrary, we must think that the time is inserted as a limit to the contin- uance of such conditipuSj and therefore that the assignee, to perfect his title, must file the bond within the time. Further, the proceeding is in the nature of a judicial proceeding. By the filing of the assignment, the court gets jurisdiction over the assignor and probably over the property ; but it gets none over the assignee until he files his bond. That is in the nature of an acceptance of the trust, and an appearance in and submission to the jurisdiction of the court for the purposes of the trust by the assignee. That the pro- vision as to the time within which he shall accept the trust and submit to the jurisdiction is merely directory and may be com- plied with or not, as the assignee shall please, without afFecting his rights, is not credible. The rule of construction, that the time prescribed for the performance of ofiicial acts, in the per- formance of which the public or third persons have an interest, shall, unless the doing of the act after the time is prohibited,- be held merely directory, applies to cases where the public or third persons will be prejudiced by holding the act to be in- valid if done after the time, and is for the protection of parties interested from suffering through, the neglect of public officers. It has no application to a case like this, where it is better for parties whose interest the statute aims to protect, that a failure to do the act within the time shall be held to terminate the right to do it at all. {Julmnd v. Jiathebone, 39 N. Y., 369.) Where, therefore, the assignee fails to file the bond within the time prescribed by the act, it is equivalent to a refusal to accept the trust, and it terminates all right in the property which he may acquire upon the filing of the assignment. Judgment reversed. THE AMERICAN INSOLVENCY REPORTS. 91 Paine v. Lester. SUPREME COURT OP ERRORS— CONNECTICUT. December, 1876. Wbere a corporation located in one State (Pennsylvania) had gone into insol- vency, and made an assignment under those laws and given notice to a debtor thereto residing in another State (Connecticut), a creditor in the latter State may afterwards attach and acquire a valid lieu upon said debt as against the trustee in insolvenoy. It does not aSect the question if such attaching creditor is a non-resident of the State (Connecticut) whose courts he comes into and invokes the aid of the laws thereof ; he is entitled to it the same as a citizen of the lex f 01%. FAINE, Pliff. in Error, v. LESTER, Deft, in Error. Granger, J. — ^Paine, the present plaintiff, on tlie 7th of Julyj 1875, brought an action of assumpsit against the German Insur- ance Company, and factorized Lester, the present defendant, as agent and debtor of the company. The insurance company was a corporation organized under the laws of the State of Penn- sylvania, and located in that State. The company appeared in the action and made defense, and judgment was rendered against. Execution was issued on the judgment and demand made upon Lester for payment, but he refused to satisfy the same, and the present action of «ciVe facias was brought. It is not denied by the defendant that he was indebted to the insurance company at the time of the at- tachment in a larger amount than the judgment recovered. But he claims that the fact is found by the court that in Sep- tember, 1874, the insurance company Went into insolvency under the Insolvent Laws of the State of Pennsylvania, making an assignment of all its effects to one Eichenlaub,:in trust for its creditors, and that, on the 31st of May, 1875, written notice of the assignment was given to Lester, so that it could not be taken by the later attachment of the present plaintiff. It is a general principle that personal property, having no situs, is subject to the law of the owner's domicil, and can be transferred by voluntaiy assignment or sale made by him 92 THE AMEEICAN INSOLVENCY EEPOBTS. Faine y. Lester. according to the law of his domieil. This well-settled princi- ple the courts of England have applied to transfers of personal property made by decrees of foreign courts, and to cases of succession to such property by will or intestacy under foreign laws, or by foreign bankruptcy proceedings. (^Potter v. Brown, 5 East., 131.) Judge Story, in reviewing the English decisions, which have not been in entire harmony on the point, comes to the conclusion that they sustain this broad application of the principle, and that the mode of transfer is immaterial, the only question being whether it is good by the law of the owner's domieil. (Story's Conflict of Law, Sec. 404 et seq.) Chancellor Kent came to the same conclusion, after elaborately reviewing the English authorities, in the case of Holmes v. Remsen (4 Johns. Ch. R, 460), and regarded the rule as thus established as founded on legal principles, and the only reasonable one. He says (p. 484) : " I entertain no doubt that the same rnle is known and observed among the other nations of Europe. It is embraced by the general principle, so universally acknowledgfjd by the civilians, that the distribution and disposition of personal property are governed by the law of the owner's domieil." But neither the current of English decisions, nor the high au- thority of Chancellor Kent, in the elaborate and learned opin- ion which we have referred to, seems to have made a pei'manent impression upon the jurisprudence of this country, and the weight of American authorities is in favor of a much more re- ' stricted application of the rule that personal property follows the law of the owner's domieil. While fully admitting this general principle, the American cases, instead of starting from it in entering upon the discussion, start from another equally well-settled principle, that the laws of a State or country have no legal effect beyond the limits of its territory. This being so, they regard the giving effect to the laws of a sister State or foreign country, in the case of the transfer of or succession to personal property within their own limits, as wholly an act of comity, and not a recognition of a right. This comity they are prepared to extend where there is no reason to the contrary, especially if thfere is no interest of their own citizens or of the THE AMERICAN INSOLVENCY REPORTS. 93 Paine y. Lester. citizens of a sister State who are seeking to avail themselves of the protection of their laws to be injuriously affected by such recognition. (Story's Conflict of "Laws, Sec. 414 ; Upion v. Rub- hard, 28 Conn., 274 ; Fox v. Adams, 5 Greenl., 245 ; Ingraham V. Geyer, 13 Mass., 146 ; King v. Johnson, 5 Harring., 31 ; Eoyt V. Thompson, 19 New York, 207 ; WiUitts v. Waite, 25 New York, 587; Kelly v. Crapo, 45 New Yovk, 86; Dunlop^. Rogers, 47 New Hamp., 281; The Watchman, Ware, 232 ; Milne V. Moreton, 6 Binney, 361, 365. The remarks of the court in the case last cited are specially noteworthy, as comjng from the State of Pennsylvania, the effect of whose insolvent proceedings is in question in this case. The court says (per Yeates, J., 353) : " It is one thing to assert that assignees of bankrupts under foreign 'institution^ should be allowed by the courtesy of nations to support suits as representatives of such bankrupts for debts due to them, and another to give eiHcacy to those institutions to cut out attaching creditors, although posterior in point of time, who have com menced their proceedings under the known laws of the govern- ment to which they owe allegiance, and from which they are entitled to protection. The right of such assignees thus to sue in a foreign country does not result from the force or effect of the law, but from long-used and well-established comity." The title of a foreign assignee or trustee. in insolvency, de- pending for its recognition here solely on our comity, that comity will not be shown where there is any good reason against it, and the debt due from Lester to the German Insur- ance Company, ai^d the right to which in the assignee we are asked to recognize, has been attached by the plaintiff, and all the necessai-y steps taken under our laws for its appropriation to the indebtedness of the insurance company to the plaintiff. It is of no consequence that the attachment was not made until after the assignment in insolvency, and after notice of the assignment had been given to Lester, for the right of the plaintiff is not the right of a prior attaching creditor, but the right of a creditor asserting his claims against the opposing claim of the assignee in insolvency, the one resting on legal 94 THE AMERICAN INSOLVENCY REPORTS. Paine y. Lester. proceedings authorized by our laws, and the other only on a comity which we can exercise or refuse to exercise at our dis- cretion. In those circumstances the court owes a legal duty to the plaintiff which is far more imperative than the demands of mere hospitality to a stranger. In this case the plaintiff is a citizen of Rhode Island, but that fact does not affect the case. ( Upton v. Hubbard, 28 Gonn.j 275.) The citizens of all our sister States have by the Constitn- tiou of the United States the same privileges with our own citi- zens, and any one of them who has availed himself of legal remedies furnished by our laws, to secure payment of a debt due him, has the same claim to the assistance of our courts that one of our own citizens would have. It does- not appear very clearly by the finding whether the assignment was made by the insurance company in the first instance, and as an ordinary assignment for the benefit of creditors, or as a part of certain insolvent proceedings com- menced, by petition, in course of which the petitioning creditor is required by the statute to execute an assignment of all his property to certain trustees appointed by his creditors at a meeting called by the Insolvent Court for that purpose. It is found only that the assignment was made " under the Insolvent Laws of the State of Pennsylvania." It was, however, stated in the argument, and seemed to be agreed, that the assignment was made under the twenty-second section of the act with regard to " Insolvents," which is a differ- ent statute and in a different part of the statute book from that which regulates assienments for the benefit of creditors, (1 Brightly's Purdon's Digest of Penn. Statutes, pages 90 and 775.) Whatever, therefore, might be said with regard to a voluntary assignment for the benefit of creditors, and the pres- ent assignment must be regarded as clearly a statutory and not a common law conveyance, and therefore as having no strictly legal effect beyond the limits of the operation of the laws of the State, For the reasons which we have given, we think the right of the plaintiff must prevail over the claim of the assignee of the THE AMERICAN INSOLVENCY REPORTS. 95 In re Moore. insurance company, and advise that judgment be rendered in his favor. In this opinion the other judges concurred, except i'ark, C. J., who dissented. N. T. COMMON PLEAS. Special Tbkm, July, 1873.* In the matter of the application of WILLIAM. MOORE, an imprisoned debtor, for a discharge from imprisonTnemt. On a petition to be discharged from imprisonment in civil causes, pursuant to article sixth of N. T. Revised Statutes, p. 3t, the petition is properly addressed to the court, and not to the officer before whom it is to be made. In such proceeding the petition should show the cause of the imprisonment. The petition and an account of the property of the applicant must be served as required by the statute. A person who is at large on the jail limits may make the application, for he is regarded as being in " actual custody " in the meaning of the.statute. The application was under article six of title one of chapter 5 of part 2 of N. T. Eevised Statutes (2 K. S., 31), entitled " of voluntary assignments by a debtor imprisoned in execution in civil causes." The remaining other facts suffir cientlj' appear in the opinion. EoBiNSON, J. — The fii-st objection to the application, be- cause it is addressed to this court, is overruled. See 2 Eevised Statutes, 31, Section 1. The provision of the sixth article differ from several previous ones in which the application must be made to some officer. In such a case as the present it must be made to " the court from which the process issued," as was done in this case. As to the second objection that the petitioner does not " set * Not before pablished. 9j6 the AMERICAN INSSLVENCY REPORTS. In re Mooie. forth the cause of the imprisdnment," as required by 2 "Revised Statutes, 31, Section 4, is well taken. The mere statement that the petitioner is imprisoned on an execution against his person is merely of his being one of the persons to whom the statute generally affords relief, but the statement of the cause of such imprisonment, upon which he was liable to such ar- rest in the action, is not disclosed. This is a fatal objection, as it is expressly required to be done. The mere fact that the petitioner is arrested, on execution does not disclose any of the various causes for which he may be liable to such process against his person. As to the third objection the statute also requires service of a copy of the petition and account of his estate. The petition refers to the sheriff's certificate as to the process upon which he is imprisoned and the basis of any qualification in the peti- tioner's absolute statement. Such reference constituted the certificate part of the petition, as for error in the allegation he would be relieved from imputation of false meaning in that respect, by thus f airjy presenting it as the basis of his represen- tation. The copy petition served was (if fact be so) incomplete. Petitioner's counsel have only demurred to the sufiiciency of the objection. 'No proof offered. As to the fourth objection, that petitioner is out of prison .on the jail limits on bail, and not actually imprisoned, is not tenable. Cowan v. Stokes, 26 How., 84, is an authority on this point. For defect in the petition of a statement of the cause of the imprisonment, and on matter of form, the proceedings must be dismissed. THE AMERICAN INSOLVENCY REPORTS. 97 Jn re Carrier. NEW YORK COMMON PLEAS. Special Term, September, 1878. In re assignment of JOHN A. CURRIER. There is no authority for allowing oosta and counsel fees, in proceedings under the General Assignment Act, to parties other than the assignee, payable out of the assigned estate. The statute intends that the power to award costs and counsel fees shall be confined to cases of disputed claims as between the contestants. The intention of the statute is to prevent any waste of the funds in the as- signee's hands by the encouragement of litigation. On this application for the final accounting of the assignee, nine counsel appeared, and at the end each asked an allowance out of the fund. The court allowed none but those to the as- signee's counsel, and delivered the following opinion : J. F. Daly, J. — There is no authority for allowing costs and counsel fees, in proceedings under the General Assignment Acts (Laws of 1877, Chap. 466, Sec. 26 ; Laws of 1878, Chap. 318, Sec. 26), to parties other than the assighee, payable out of the assigned estate. Whatever may have been the power of the court or judge prior to the amendments of the act above cited, the latter leaves no doubt on the subject. They contain (Sec. 26) an express enactment as to counsel fees and costs. The enactment is connected with the authority vested in the court to order a trial, before a referee or by a jury, of any dis- puted claim or matter arising under the provisions of the act, and further provides that the court may, in its discretion, award reasonable counsel fees and costs, and determine which party shall pay the same. The statute plainly intends the power to award costs and counsel fees shall be confined' to cases of disputed claims and matters, and that the party to the dispute who has unsuccessfully prosecuted or defended shall pay his adversary reasonable costs and counsel fees. This pro- vision adequately protects all parties. The Legislature evidently appreciated the danger of en- VOL. I. — 7 98 THE AMERICAN INSOLVENCY EBPOETS. In re Carrier. couraging litigation in assignment cases, and has prevented any waste of the funds in the assignee's hands by such means. The creditors of each estate are numerous, and reasonable pre- texts are not wanting for each to employ counsel, a moderate allowance to whom would in nearly every case absorb all the fund. If a creditor wishes his interest protected and employs counsel for the purpose, he must expect to pay for the service out of his own pocket and not to charge the shares of all the other creditors with the expense. It may be said that the ex- ertions of a single creditor will, by cutting off improper claims of other pretended creditors, or by sifting the assignee's ac- counts, materially swell the fund, which should then pay for the common benefit. But the statute gives the court power to inflict costs and counsel fees on defeated claimants and as- signees in such cases, which costs and counsel fees will indem- nify the creditor exerting himself in the way suggested. If upon the accounting of the assignee it should appear that the latter has contested unjustly, creditors who have succeeded in cutting down his charges or increasing the sum with which he is chargeable, may have costs against him personally, but not against the fund. -There would be no protection against the obstinacy or fraud of the assignee if the fund, and not he, paid the expense of bringing him to terms ; and it is easy to see that if the costs of all the litigations that might arise in con- nection with these insolvent assignments were chargeable upon the fund, litigation of one fonii or another would not cease until the fund was exhausted. There is no authority, therefore, for the allowances out of the fund asked for by the nine counsel who have appeared on this accounting. The creditor who instituted the proceeding to compel the assignee to account cannot have costs because the assignee responded promptly. N'or are the other creditors en- titled to bills of costs against him, as he has not impeded their investigation into his accounts, nor been convicted of any im- proper conduct. The counsel fees paid by the assignee to his own counsel in protecting "the assignment and the fund seem to be proper. THE AMERICAN INSOLYENCT REPORTS. 99 •~~^ ,._ ' — , In le Iieweuthal et al. They are, however, large enough to cover the expenses of this accounting, and no other allowance should be made. The assignee's counsel and the several counsel for creditors entered into a stipulation to allow the referee to whom the accounts were referred, a certain rate of compensation. This stipulation is not binding on the court, as the case does not fall within the provisions of Sec. 313 of the Code, which refers to civil actions only. I do not regard as reasonable a greater allowance than three dollars for each adjournment and five dollars for each sitting in an ordinary reference to pass an assignee's account. The disbursement for referee's fees must be confined to an allowance on that basis. The decree should be drawn accordingly. NEW YORK COMMON PLEAS. Special Tekm, October, 1878. An assignee, under the General Assignment Acts, will not be diBoharged by the court except npon a proceeding for an accounting. All persons, whether they have signed releases or not, must be notified by citation to attend the settlement of the accounts of the assignee. Where the assignors and the creditors have compromised, and the assignee seeks to be discharged, he must first advertise for claims as provided by statute. In re Assignment of LEWENTHAL et (ds. Application to discharge assignee under the General Assign- ment Acts. J. F. Daly, J.— No discharge will be granted the assignee except upon a proceeding for an accounting to be instituted by citation. The statute is clear upon this point. The assignee must apply by petition for a citation to all persons interested in the estate to attend the settlement of his accounts, and all par- ties, whether they have signed releases or not, must be notified. Advertisement for claims must be made where the assignee seeks relief by reason of a compromise between the as- signor and the creditors. 100 THE AMEEICAN IN-SOLVENCT REPORTS. In re Fitzgerald. COMMON PLEAS— NEW YORK. Special Term — Decided Decbmbbb, 1878. A person imprisoned upon an execution issued against Mm on a judgment in a civil action will not be discharged from such imprisonment under arti- cle 6, title 1, chapter 5, part 2, Revised Statutes, where it appears that a few days after his arrest he was adjudged a bankrupt under the United States laws on his own petition. A party cannot put it out of his power to obey a court, and then ask that court to relieve him. When it appears that without any act or fault on the part of the imprisoned debtor, and against his will, that all the property which he had at the time of his arrest had been taken from him, the court will not refuse his In the Matter of DANIEL H. FITZGERALD, an im- prisoned debtor. Application to be discharged under N". Y. Revised Statutes, "Fourteen Day Aet." Yas Hoesen, J. — ^Fitzgerald was arrested on the 21st day of August, 1878, upon an execution against his person, issued on a judgment against him, recovered by H. K. & F. B. Thurr ber. On the thirtieth day of August he was adjudicated a bankrupt, on his own petition, and on the eighth day of Ifovember last he presented to this court a petition praying for his discharge, under article 6, title 1, chapter 5, part 2, Eevised Statutes. His application for the discharge is opposed by the Thurbers, who insist that as he has made an assignment to the assignee in bankruptcy of all the non-exempt property he had at the time of his arrest, he cannot possibly comply with the State law, which requires that, in order to be dis- charged from arrest, he shall assign that very property for their exclusive benefit. Under the State law the Thurbers, who caused his arrest in their action, are entitled to be paid in full out of his property, if there be sufficient for that purpose ;, but, since he made his assignment in banki-uptcy, he has no property which he can turn over to any assignee appointed by this court. THE AMERICAN mSOLVBNOT REPORTS. 101 In re Fitzgerald. It is idle, therefore, for him to ask from a State court re- lief which it has no power to give, except upon his making an assignment of property which has passed irrevocably beyond his control. It is true that if it should appear that, without any fault on his part, and against his will, all the property, which he had at the time of his arrest, had been taken away from him whilst imprisoned, the court would not refuse him a discharge. But he is in no such situation. His property was assigned by him of his own free will, with a view to his own personal advantage. It was assigned in a lawful manner, and in conformity with the Bankruptcy Act ; but, by his going into bankruptcy, there was an election on his part to get the benefit of a discharge from his debts in bankruptcy, instead of a discharge from"' imprisonment in the action between himself and the Thurbers. Having made that election, he can only get such relief as the Bankruptcy courts can afford him. He cannot put it out of his power to obey the orders of the State court, and then ask 'that court to discharge him from imprison- ment. It is his own act that has made it impossible -for him to execute an assignment that will be anything more than a nugatory formality. In Dinherhoff v. Ahlhorn (2 Ahiotfs New Oases, p. 73), Ahlborn, an imprisoned judgment debtor, who, after his arrest under an execution from a State court, was adjudicated a bankrupt, found it necessary to obtain from the United States Court an order annulling the adjudication of bankruptcy, for the purpose of obtaining his discharge from imprisonment. The same course is open to Fitzgerald, though he is, of course, at liberty to continue his proceedings in bank- ruptcy, and. to obtain such relief as a discharge in bankruptcy will afford him. The case of Maas v. O'Brien (14 Hun., 95), goes far to support the position that the State court should not entertain such proceedings as these, after an imprisoned debtor has resorted to the United States Courts. There is an irrecon- cilable conflict between the Federal system of bankruptcy and the State insolvent laws, and the latter are compelled to yield. Where the Federa? courts lay their hands upon the property of an insolvent, it is impossible for the State courts to carry the 102 THE AMERICAN INSOLVENCY EEPOBTS. In xe Brady. insolvent laws into execution. It is folly for a State court to attempt to execute a part of the provisions of the State statutes, after a limited States court has taken under its exclusive con- trol the insolvent's estate, and thus prevented the carrying out of other provisions of the statute which are essential to the completeness of the system. The views I have expressed are not novel. ' They are in full accord with the decision in The People ex rel. Gilsten v. Brooks (40 How. Pr., 165). The application for a discharge is denied. N. T. COtTET OP APPEALS. Decided Apkil, 1877. When a jndgment debtor who has disposed of his property with the intent to defraud his creditors and is imprisoned on an execution at the instance of the creditor, whom he has defrauded, he is not entitled to be discharged from such imprisonment by making a voluntary assignment under the statute. It need not appear that the fraudulent disposition was made in contemplation of applying to be discharged ; it will be sufficient to defeat such discharge, although made before the commencement of the action in which the ex- ecution was issued. But it must appear to have been made with the intent to defraud creditors existing at the time of the disposition of the property. In the matter of WALTER BRADY, Appellant, a?* im- prisoned dStor. Appeal from an order denying the discharge of the debtor. J. Langdon Ward, for appellant. Geo. W. Van Slyck, for respt. Eabl, J. — The debtor was arrested in two actions upon orders of arrest issued because he had disposed of his property with intent to defraud his creditors. Judgment having been obtained in the actions he was aiTCsted and imprisoned by vir- tue of executions issued thereon. He applied for his discharge THE AMERICAN INSOLVENCX EEPORTS. 103 In xe Biady. as an imprisoned debtor under Part 2, Chap. 5, Tit. 1, Art. 6, of the Revised Statutes. This was opposed by the judgment creditors, who by the affidavits upon which the orders of arrest were issued and upon other proof established the frrudulent disposition of his property by; the debtor. By Art. 6, an im- prisoned debtor desiring a discharge from imprisonment is re- quired to present a petition to the court praying for his discharge, setting forth the matters specified in Section 4. He must swear to the following affidavit as prescribed in Section 5 to be indorsed upon his petition : I, the within named petitioner, do swear tliat the within petition and account of my estate and of the charges thereon are in all respects just and true, and that I have not at any time or in any manner disposed of or made over any part of my property with a view to the future benefit of myself or of my family, or with an intfent to injure or defraud any of my creditors. If upon the hearing the court shall be satisfied that the petition and account of the applicant are cor- rect and that his proceedings are just and fair, the discharge must be granted. The affidavit is part of the proceeding, and that cannot be just and fair unless it is true. It is important therefor to ascertain the scope and meaning of the affidavit. It is not complained in this case that the petition and ac- count of his estate and of the charges thereon were npt just and true. It is not shown that he had disposed of any of his property with a view to the future benefit of himself or family. The future benefit here mentioned was a benefit to be received and enjoyed after the date of the petition. An imprisoned debtor could not be discharged who had thus secured for himself the benefit of property which ought to have been and to be appro- priated to the payment of his debts. But the claim is, that he had disposed of some of his property with intent to defraud the creditors. What creditors are here ineaiUt? Plainly the creditors who could be defrauded by the disposition complained of. There must have been an intent to defraud existing credi- tors, of whom the creditor contesting the discharge would be 104 THE AMERICAN INSOLVBNCY EEPORTS. In re Brady. one. A fraud committed years before upon a class of creditors whose claims had been paid or had ceased to exist, would not prevent a discharge, and a creditor could not contest the dis- charge on the ground of a fraudulent disposition of property who was in no way injured or defrauded. The fraudulent made here was with intent to defraud the very creditors who oppose the discharge. That this construction of the statute may lead in some cases to imlimited imprisonment is possible, but we have nothing to do but to construe the law and enforce it as it is. We have no power to abrogate it or soften its hard features. At the time of the adoption of this statuteimprisonraent for debt was author- ized in all cases. The honest and dishonest debtors shared the same hard lot. The sole object of this statute was the discharge of honest debtors who made an honest and full surrender of all their property for their creditors. It was not intended to benefit creditors who had disposed of their property for the purpose of defrauding the very creditoi-s at whose suit they were imprisoned. Even under the non-im- prisonment act, passed subsequently, which in most case abolished imprisonment for debt. Chap. 300 of the Laws of 1831, such a debtor could not be discharged under Article 3 of the same title and chapter above mentioned commonly kiiown as the two-J;hirds act, nor under Articles' 4 and 5 in reference to " voluntary assignments by an insolvent for the purpose of exonerating his person from imprisonment." The policy of the law is thus plainly indicated. "Without further discussion here it is sufficient to express concurrence in the satisfactory opinion at treneral Term. But it has been suggested that the appeal to the General Term was not author- ized. We are of the opinion that it was. This was a special proceeding as defined by the Code. (Sees. 1, 2, and 3 of the Code.) By Chap. 270 of the Laws of 1854, an appeal to General Term of the Supreme Court is authorized from an order or final determination of the Special Term in any special proceeding. The order of the Special Term in this proceeding was THE AMERICAN INSOLVENCY REPORTS. 105 In reiBrady. therefore appealable, unless the statute regulating the proceed- ing makes it final. Section 6 of Article 6, provides that the court " shall pro- ceed in a sonimary way to hear and determine the proofs and allegations, and may examine the applicant or his wife, ffc any other person on oath, and if satisfied that tlie petition and account of the applicant are correct, and that his proceedings are just and fair, shall order an assignment to be made of all his property," &c. There is no provision that the order shall be final or conclusive, but simply one that the orfer shall not be made until tiie court shall be satisfied. A court must always be satisfied of the existence of certain facts as the basis of its action before it can make an order, and yet it has never been held in any reported case that such language used in a statute evinces a legislative intention that an order made fihall be final and conclusive in the sense that it cannot be ap- pealed from. The law of 1813 (2 E. L., 408), regulating the opening and laying out of streets in the city of New York, provides for the appointment of Commissioners of Estimate and Assessments, and that their report shall be confirmed by the Supreme Court^ and that such reports when confirmed, shall be " final' and conclusive." It has been held that no appeal will lie to the Court of Appeals from such an order of confirmation made by the Supreme Court — that the words "final and conclusive" were used to forbid an appeal. {Matter of Commissioners of Central Park, 50 N. Y., 493 ; Matter of Canal and Walker Sts., 12 N. Y., 406.) The same words were held to prevent an appeal to the Court of Appeals from an order of the Supreme .Court made at the General Term confirming the report of commissioners to appraise the compensation to be made for lands proposed to be taken under tlie general railroad act. (In matter of the If. Y. C. BB. Co. V. Marwin, 11 E". Y., 276.) The right to review the decision of a single judge sitting at Special Term in a matter affecting substantial lights being general and fundamental, it must be deemed to exist, unless 106 ^ THE AMERICAN INSOLVENCY REPORTS. Nimmo y. i^uykendall. the intent to destroy it is expressed with great clearness. It cannot be said that such an intent is expressed in the statute under consideration. The order of the General Term must be affirmed, but with- out costs of appeal to this court to either party. FoLGEE, Eapallo, and Andrews, concur ; Chuech, Ch. J., Allen and Milleb, JJ., dissent; Chuech, Ch. J., votes for rever- sal of order of Special Term on the merits ; Allen and Mil- LEg, JJ., so vote on the ground that no appeal lies from the Special to the General Term. Order affirmed. SUPREME COURT— ILLINOIS. Decided June, 1877. A debtor in failing circumstances may make an assignment of his property for the benefit of his creditors, and if fairly done, passes the title to his property to his assignee, and the same is not subject to a subsequent levy of an execution upon it against the debtor. The question of fairness is one of fact for the jury, or the court sitting as a jury, and will not be disturbed when the question is properly submitted. An assignment may be held valid, although it prefers certain creditors over others. NIMMO V. KUY KENDALL. Appeal from the Circuit Court of Union County, the Hon. MoNKOE C. Ceawfoed, Judge, presiding. Mr. Jackson Frich, for the appellant. Mr. Andrew W. Buff, for the appellee. Beeese, J. — This was replevin in the C(5pi# and detinet in the Union Circuit Court, wherein Andrew J. Kuykendall was plaintiff, and Alexander J. Nimmo, defendant, the matter in controversy being certain goods, wares, and merchandise, which the defendant, as sheriff, had levied upon as the goods and chattels of one Philip Mead, by virtue of sundry execn- -- THE AMERICAN INSOLVENCY REPORTS. 107 Nimmov. Euykendall. tions in his hands against Mead issued upon judgment regularly entered against Mead in the County Court of Union County on the 12th of January, 1875. The plaintiff claimed the property in virtue of a deed of assignment made by Mead to him on the ninth day of January, 1875, three days prior to the rendition of the several judgments, for the benefit of Mead's creditors, without any reservatibn or exceptions whatever, and the only question is as to the fairness and legality of this transaction. , Appellant contends the assignment was made by Mead to hinder, delay, and defraud his creditors, and therefore null and void as against these executions. This question was fairly and fully submitted to the court for determination instead of a jury, and the finding of the court on the authority of repeated decisions of this court must have the same force and effect as the verdict of a jury. We cannot say the court decided wrong, for the bill of ex- ceptions does not purport to contain all the evidence, and we must presume there was sufficient evidence to warrant the court in the finding. Nor ' does it appear any exception was taken to the finding or any motion made for a new trial. Ac- cording to the doctrine of this court as repeatedly declared, no motion for a new trial having been made we cannot examine into the question of propriety of the finding. {Reichwald v. Gaylord et al. ; 73 111., 503 ; Choate v. Hathaway, Id., 518, and previous cases. Bills v. Stanton, 69 Id., 51). But looking at the testimony found in the bill of exceptions we are not of opinion the finding should be disturbed. The assignment in this case was made evidently for the purpose of benefiting all the credi- tors of Mead. It was a general assignment for that purpose, and does not come within the scope of Thornton v. Davenport ot al. (1 Scam., 296), and kindred cases. The proof fails to dis- close any indications of fraud, certainly no stronger indication than were manifested in Powers v. Oreen (14 111., 387), which was an assignment by a debtor in failing circumstances, giving preference to .certain creditors. The jury there held the assign- ment valid, and this court refused to disturb the verdict, 108 THE AMERICAN INSOLVENCY EEPOETS. t . Matter of Trae. although stronger circumstances of fraudulent intent were there disclosed, yet the jury found the transaction was fair and this court would not interfere^ So were the transaction free from fraud or fraudulent intent we cannot interfere to set aside the finding. But we are disposed to concur fully with the Circuit Court, that the transaction was a fair one, madd -in good faith and an honest purpose. This court said in Wilson v. Pearson, assignee (20 111., 81) : A debtor in failing circumstances may make an assignment for the benefit of his creditors, and if fairly done passes the title to his property to his assignee. The question of fairness of the transaction is one of fact for the finding of the jury, and their finding, when the question is properly submitted, will not be disturbed. Here, the court sitting as a jury has found in favor of the assignment and there is nothing in the record re- quiring this court to gainsay it. The judgment is affirmed. Judgment afiirmed. NEW YORK COMMON PLEAS. Special Term, January, 1878. An attachment obtained by a creditor on the ground that an assignnient for the benefit of creditors is a fraudulent disposition of the debtor's property can only be levied upon the property and not upon its proceeds. The ptoceeds can only be reached by an action in equity by creditors against the assignee, after exhausting their legal remedies. ' The proceeds of collected claims are regarded in the same light as proceeds of sales of property. Matter of TRUE. Motion by assignee, True, to have his attorney pay over to him moneys the proceeds of the trust estate assigned to him for the benefit of creditors. It was claimed by his attorney that an attachment had been levied upon the funds in his hands by THE AMERICAN INSOLVENCY REPOETS. 109 Matter of Trae. a creditor of the assignoi-'s obtained upon the ground that the assignment was fraudulent. Dalt, J. — The attachment of Thomas Hanley, a creditor of the assignors of Foley & Co., which was issued by the Marine Court on the ground that Foley & Co. had fraudulently dis- posed of their property, can be levied only upon the property claimed to have been fraudulently assigned, and not upon its proceeds. {Lawrence v. Banh liepublio, 35 N. T., 320 ; Lan- ning v. Streeter, 57 Barb., 33 ; Vamphell v. Erie RR. Oo., 46 Id., 540 ; G-reenleaf v. Munford, 50 Id., 543 ; McElwavn v. Willis, 9 Wend., 569.) In this case the attachment was levied on two classes of property in the possession of David Leventritt, attorney of the assignee, viz. 1. moneys collected from debtors of the assignors upon claims placed in Mr. Leventritt's hands by the assignee for collection ; and 2, claims against other debtors of the assig- nors uncollected. The proceeds of collected, claims are to be regarded in the same light as proceeds of sales of property. When the claim is uncollected the debt may be levied on under the attachment, but when the debt has been paid before the attachment is is- sued nothing remains which is the subject of levy, and the creditors of the assignors can only reach the proceeds by action in equity against his assignee after exhausting their legal reme- dies. It follows therefore that whatever moneys had been col- lected by the attorney for the assignee before the attachment was issued are not the subject of attachment, and may be paid over by Mr. Leventritt to the assignee. no THE AMERICAN INSOLVENCT REPORTS. Wallace et al. v. Wainwright et al. SUPREME COURT— PENNSTLVAiraiA. NOVBMBEK 21, 1878. None of the statutes of Pennsylvannia relating to assignments for the benefit of creditors require that they shall be drawn in any specific form. An assignment expressed to be in payment of certain creditors named therein HM, to be an assignment for the benefit of the creditors designated, and one, too, by which those creditors were preferred, and that not having been recorded within thirty days, it was void under the acts of 1818 and 1843. ' WALLACE et al. v. WAINWRIGHT et at. Eeeoe to the Court of Common Pleas of Clearfield Cotmty. This case was a feigned issue framed to try the question of the right to certain, judgments as between Wallace & Krebs, to whom the judgments had been assigned by John Irvin and John Trvin & Brothers, and "Wainwright & Co*, judgment creditors of said Irvins, who had attached the same as the property of said Irvins, by attachment execution issued out of the Court of Common Pleas to No. 154, September Term, 1877, against Irvins, defendants, and a number of their judgment debtors as garnishees. The attachment was issued on the 23d of June, 1877, and served on the defendants and on a number of the garnishees the day it was issued, and on the others, soon afterwards, (tei the same day the following assignment was filed : " OuEWENsviLLE, Pa., Juue 20, 1877. " Whereas, John Irvin & Brothers are indebted to and owing B. F. Fullerton, George E Price (and twenty-seven other indi- viduals and firms) certain sums not now definitely ascertained. " And whereas, John Irvin & Brothers are unable to satisfy the above named creditors by a payment in full of their several demands in money. ^ " Now, June 20, 1877, for value received, wc hereby assign, transfer and set over to Wallace «fe Ki-ebs, in payment of the THE AMERICAN INSOLVENOY BEPORTS. HI Wallace et al. v. Wainwright et al. above named creditora, the judgments and claims as per an- nexed schedule, all the right, title and interest of us, the un- dersigned members of the firm of John Irvin & Brothers, and of John Irvin individually. "John Ievin & Bbo's. "John Ievin." [Schedule of large number of judgments attached to the above assignment.] This assignment was not recorded ; many of the creditors named were clients of Messrs. Wallace & Krebs, whose claims were then in their hands; the judgments assigned as above were judgments of record, in favor of Irvins and against the garnishees named in the attachment issued by Wainwright & Company, who were not named in the assignment, and of which they had no knowledge at the time of issuing their attach- ment. On the 12th of July, 1877, Wallace & Krebs presented their petition in court, setting forth the assignment of the judgments to them, and asking the court to quash the attach- ments ; whereupon the court ordered an issue to be framed to test the rights of the respective parties to said judgments, which issue was accordingly framed, wherein Wainwright & Company were made plaintiffs, and Wallace & Krebs defendants. Upon the trial, the court below (Mayer, P. J.) instructed the jury as follows : "After full consideration and reflection I have made up my mind to direct the jury to find for the plaintiffs, and reserve the question of law, whether or not the writing dated 20th of June, 1877, executed and delivered by John Irvin & Brother, and John Irvin to Wallace & Krebs was an assignment in trust for the benefit of creditors. " It is a case of considerable importance to both parties. I do not see that this disposition of the case can do either party any harm." Verdict accordingly for plaintiffs. 112 THE AMERICAN INSOLVENCY REPORTS. Wallace et al. v. Wainwright et al. Subsequently, on the reserved point, the court filed the following opinion : " On thp trial of this cause, we instructed the jury to find a verdict for the plaintiffs, subject to the opinion of the court on the question of law reserved, whether the writing dated June 20, 1877, executed and delivered by Irvin & Brothei-s, and John Irvin, to Wallace & Krebs was an assignment in trust for creditors. Being of opinion that this assignment constitutes an assignment in trust for the benefit of creditors, coming within the provisions of the Act of Assembly, and not having been re- corded in the county within thirty days after the execution thereof, it is null and void as against the creditors of the assign- ors, and that the attachment of the plaintiffs must prevail. We therefore enter judgment in favor of the plaintiffs upon the verdict" Defendants took this writ, assigning for error the direction to find for plaintiffs, and the opinion of the court on the point reserved. Messrs. Wallace <& Krebs, for plaintiffs in error, contended, that under the instrument dated June 20th, there was a direct payment to the creditors named ; that no trust rested upon plain- tiffs in error other than that which exists between attorney and client {Chaffees v. Etsh, 12 H., 4.'53; Henderson's Appeal, 7 C, 504 ; Beans v. Bullitt, 7 Sm., 221 ; Taylor v. Cornelius, 10 Sm., 187 ; Clafflin v. MaglaugUvn, 15 Sm., 492.) That the act of 24th of March, 1818, should be strictly construed. An in- strument not within the exact letter of the act should not be declared to be an assignment within its provisions. Frank Fielding and J. B. McEnaUy, Esqrs., for defendants in error, contended that every assignment made to any third per- son for the benefit of creditors is an assignment in trust within the meaning of the act ; to escape the provision of the law, the assignment must be made directly to the creditors. Appeal of Miners' National Bank, 7 Sm.,193 ; Dreislaah v. Becker, 10 C, 153 ; Murphy's Appeal, 2 Pittsb., 271 ; Engelhert v. Blan- THE AMERICAN INSOLVENCY REPORTS. 11 Sl Wallace et al. t. Wainwiight et al. jot, 2 Wh., 240; Blahon v. Lewu, 3 Phila., 454; Finney v. Finnerj, 4 H., 380 ; Manigan v. WetheriU, 5 Wh., 285.) Under the provisions of the Acts of 24th of March, 1818, and of 17th of April, 1843, the assignment is void. Woodward, J. — On the 20th of June, 1877, an instrument vras executed by John Irvin & Brothers, and John Irvin indi- vidually, in order to secure certain designated creditors, some thirty in number, who held claims against the iirm. After re- citing an indebtedness in sums not definitely ascertained, and the inability of the firm to satisfj' the creditors by a payment in money, the instrument contained this concluding clause : " For value received, we hereby assign, transfer and set over to Wal- lace & Krebs, in payment of the above-named creditors, th& judgments and claims as per annexed schedule, all the right, title and interest of us, the undersigned members of the firm of John Irwin & Brothers and of John Irvin individually." A schedule of the judgments and claims was attached to this as- signment. 8orae of the ci-editors named in the instrument were present, and assented to the arrangment somewhere represented by Messrs. Wallace & Krebs as counsel, and some were neither present nor represented. Wainwright & Co., the plaintiffs below, held a judgment against Irvin & Brothers, upon which they issued this attachment, the defendants in the judgments and claims assigned being served as garnishees. At the trial in the Common Pleas the question as to the character of the paper executed by the Irwins was reserved, and the jury were instructed to render a verdict for the plaintiffs. Upon the ground that the instrument constituted an assignment for the benefit of creditors, and, as such, that it had not been recorded within thirty days, the court afterwards entered jiidgment on the verdict. This is alleged to have been error. None of the Aets of Assembly relating to the assignments^ for the benefit of crecLJtors have required that they should be drawn in any specific form. Such instruments were well known and in common use when the- Act of the 24th of March^ 1818, was passed, and neither before nor after its passage waa VOL. I. — 8 114: THE AMEEICAN INSOLVENCY EEP0BT3. Wallace et aL v. Wainwrlght et al. any particular collocation of words held necessary to give to a writing the effect of an assignment. Since 1818 property transferred to one person, to be employed, paid over or con- verted for the benefit of others, has been regai-ded as property held in trust within the operation of the statute. " Of course," Chief Justice Lowrie said, in Fallon^s Appeal, (6 Wright, 235) " the courts cannot allow the law to be invaded by any sham departure from the general form of assignments, and when the ti'ansaction is substantially an assignment for the benefit of creditors, involving no other important purpose that would be prejudicial by bringing it under the Act of 1818 (now 1836), the substance rather than the form must be regarded." Judge Lewis, in Chaffees v. Sisk (12 Harris, 432), defined a trust as existing " where the legal estate is in one person, and the equit- able interest in another." In Watson v. JBagaley (2 Jones, 164), a letter of attorney authorizing the collection and receipt of moneys, debts and goods, and the payment of the proceeds to creditors in a prescribed order of preference, although re- vocable before the execution of the power, was held to be, after execution, virtually an assignment for the benefit of creditors, and as such. Chief Justice Gibson said : " It was decisively within the purview of the statutes to regulate such transfers ; else those statutes might be evaded and the pernicious power to prefer be retained by changing the form of the instrument." But it has been urged that the assignment to Messrs. "Wallace & Krebs was "in payment" of the creditors and not in trust for them. Still the legal title to the securities became vested in the assignees, and the equitable interest was all that the creditors acquired. By the Act of the 16th o£ April, 1849, it was declared that a condition in an assignment for the pay- ment of such creditors only as should execute a release, should be deemed a preference and be void. The stipulation here that the securities transferred should be "in payment" of the debts owing by Irwin & Brotliers, if thq word " payment " was used in the sense of satisfaction, was but the equivalent of a condition for payment upon release. It could not be known whether the amount to be realized would satisfy the indebted- THE AMERICAN INSOLVENCT EXPORTS, 115 Wallace et al. v. Wamwright et al. ness or not. Some of the creditors were not represented, and their right to participate in the fund would be dependent on their consent to take such share of it as would pome to them in discharge of their demands. The Act of 1849, as well as the Act of the 17th of April, 1843, applied to assignments of prop- erty made by debtors to trustees " on account of inability at the time to pay their debts." This instrument expressly recited the firm of Irwin & Brothers to be in just that condition. They were unable to pay their debts ; they assigned to third persons securities to a large amount to be Iield and collected for a portion of their creditors, and they stipulated that the creditors thus benefited should receive the proceeds of the secu- rities "in payment" of their claims. It is impossible to see how this can be treated otherwise than as an assignment for the benefit of the creditors designated, and an assignment, too, by which those creditors were preferred. If the language of the instrument were to be construed as providing for a payment on account, and not in fall of the demands of the creditoi'S, its effect woald only be altered to the extent that the condition for a release would not be implied. In principle this case is not distinguishable from that of the Miners^ National BaixMs Appeal (7 P. F. S. 193). In apparent features, indeed, the difference consists in the fact that tlie whole object of the trans- action was expressed in that case with stated results precisely the same as those which the legal operation of this assignment would work out. Charles Miller assigned twenty-one items of property to William Miller and Morris Patterson, in trust, to sell at their discretion, and apply the proceeds to the payment of twenty-four named creditors, the surplus, if any, being pay- able to the assignor, but it was provided that if the proceeds should not pay the creditors in full, it should be disbursed among them pro rata. Upon these facts, the present Chief Jnstice said: "When a man can no longer go on in business, and what he has must pass into the liquidation of his debts, fairness requires that he should not dictate the course his prop- erty shall take. - The Act of the 17th of April, 1840, is entitled * An Act to prevent preferences in assignments, and it is 116 THE AMERICAN INSOLVENCY EEPOKTS. Wallace et al. v. Wainwright et aL argued from the title that its intention was only to forbid pref- erences expressed in the deed itself. But this is contrary to the public sentiment which led to the proposal of the act, and to the plain intent found upon its face. It would enable the debtor always to prefer creditors simply by framing his deed to suit his purpose, He has thus to name only those he would prefer, and leave others out, and indeed under that construc- tion of the law, I see nothing to prevent his multiplying his deeds, and thereby to divide his estate and graduate his prefer- ences." The opinion went on to prove that the Acts of 1843 and 1849 were intended to secure a distribution of the prop- erty transferred among the whole body of the creditors of the assignor, where the assignment, whether general or partial, should be made in anticipation of impending failure. The whole reasoning of the Chief Justice, as well as the views expressed by Judge Brewster, in his lucid and thorough dis- cussion of the same case, apply here with direct and peculiar force. ISTumerous authorities have been referred to and relied on by the counsel for the defendants. They have been examined and considered, and none of them have been found to support the allegation of error in this judgment. Ghqffees v. Rich (12 Harris, 432), was the case of an assignment made directly to the creditora of the assignor. Judge Lewis said that by such an assignment " the legal estate and the equitable interest are vested in one and the same person." HendersorHs Appeal (7 Casey, 502) was also the case of an assignment of a number of claims in the hands of an attorney, made directly to the pei"- sons Beneficially interested. The claims were described by reference to a list which H. L. Richmond held. On the marain of this list, after the execution of the assignment, there was written : " I assign to H. L. liichmond this list of accounts for the uses named in his receipt to me of this date," and this was signed by the assignor. In the discussion by this court of the effect of these instruments, it was said : " Tlie defendants insist that the debt of Townley, and all the debts in the list alluded to, did not pass under the assignment we have been consider- THE AMERICAN INSOLVENCY REPORTS. 117 Wallace et al. v. Wainwright gt al. ing, bnt was intended to pass under an assignment made the same day by Osborn to Kiclimond, in trust for the benefit of the New York creditors, and that this assignment was clearly within the Act of 1818, and therefore, not being recorded, was void as against a subsequently attaching creditor. This con- clusion is inevitable if the premises are well assumed." The two instruments, however, were held to constitute together one transfer. And the paper given to Eichmond was treated as designed to pass over the " list " of the accounts to him as the attorney of the New York creditors, to whom the accounts con- tained in that list had been formally assigned. There was thus an express declaration by this court that if the case stood on the assignment to Richmond alone, it would Have been within the Act of 1818. In the Yorh County Bank v. Carter (2 Wright, 446) partners who were heavily indebted, transferred their entire property to a creditor, in consideration of his satis- faction of his claims against tliem, and his agreement to pay the balance of the purchase money in discharge of the debts of certain other specified creditors. It was held that the papers imported a sale, and not the creation of a trust for creditors, and that though it might have been shown by parol evidence that such a trust was intended, it was a question of fact for the jury, and not of law for the court. The facts in FallorUa Appeal (6 Wright, 235) showed a sale through the interven- tion of trustees, with a security analogous to a mortgage for the purchase money, and not an assignment for the benefit of creditors. All that Yallance v. The Mineri Life Insurance Co. (6 Wright, 441) settled, was that an assignment or transfer of property made directly to the creditors beneficially inter- ested in it, whether in satisfaction of, or as a security for their debts, was not within the Act of 1818. Of the three instru- ments set up to establish a trust for creditors in Beans v. Bullitt (7 P. F. S., 23'1) the first was decided to be a mortgage, the second a power of attorney, and the third an absolute trans- fer directly to sixteen creditors, and in neither of them was any trust intended or expressed. In Taylor v. Cornelius (10 P. F. S., 187) a debtor conveyed aU his real estate to a creditor,. 118 THE AMERICAN INSOLVENCY REPORTS. Bostwick, Assignee, etc., v. Burnett. who, at the same time, made a declaration of trust that he would sell all or part of the property', apply the proceeds in payment of the debts due himself, and such sums as he should advance, and five thousand doUai-s for his commissions, and convey the remaining property to the debtor. Of course these instruments were treated together as constituting a mortgage. In Glaflin v. Maglaughlin (15 P. F. S., 492) choses in action were assigned directly to creditors, and the instrument trans- ferring them contained a direction to the attorney, who had the claims in his hands for collection, to pay the proceeds to the assignees. This, it was decided, was not an assignment re- quired to be recorded under the Act of 1818. It may be re- marked in passing, that the President of the Common Pleas, in his opinion in Claflin v. Maglaughlin, omitted, in referring to Henderson's Appeal, to state the essential fact that the ruling in that case rested on the assignment of the securities to the creditoi-s themselves, and not on the transfer of the list to Mr. Richmond. It is to be kept in mind that Messrs. "Wallace & Krebs had no beneficial interest whatever in the claims assigned to them. They were neither creditors nor purchasere ; they had made no advances, and they had no lien. Under the facts presented, it is not believed that there is any precedent to war- rant an interference by this court with the record made up in the Common Pleas. Judgment affirmed. N. T. COURT OF APPEALS. NOTBMBKR, 1878. The United States Bankrupt Act does not invalidate or aSect a, volnntary assignment valid under the laws of the State where no proceedings in bankruptcy are instituted. Where preferences in assignments are allowed by the laws of a State where the assignment is made, the assignment is valid unlesa proceedings are taken against it under the United States Bankrupt Law upon that ground within the time required by that act. The title to the assigned property vests in the assignee upon the execution THE AMERICAN INSOLVENCY REPORTS. 119 Bostwiok, Assignee, etc., v. Burnett.. of the assignment, although the assignee's bond is not filed until after- wards, but within the time required by the statute. BOSTWIOK, Assignee, c&c, Ajypellant, v. GEORGE M. BURNETT, Respondent. The facts sufficiently appear in the opinion by the court. Eapallo, J. — The assignment under which the plaintiff clainas title was valid as against a subsequent execution credi- tor, notwithstanding the fact that it gave preferences. The United States Bankrupt Act has no application to the case. Tlie defendant does not claim under any proceedings in bank- rnptcy, but under an execution issued out of a justice court ; and it does not appear that any proceedings in bankruptcy have ever been instituted by or against the judgment debtor. The Bankrupt Act provides that preferences made within a specified time prior to the filing of a petition in bankruptcy may be avoided. If made anterior to the prescribed time they may stand even as against an assignee in bankruptcy. There ia nothing in th& Bankrupt Act which invalidates or affects a voluntary assignment valid under the laws of the State where no proceedings in bankruptcy are instituted. Such an assign- ment may be an Act of Bankruptcy which would authorize the filing of a petition by creditors, but if no proceedings in bank- ruptcy are instituted and the creditors proceed under the laws of the State for the collection of their debts, those laws must govern and no question under the Bankrupt Law can arise. The property having been wrongfully taken from the pos- session of the plaintiff, no demand was necessary. No point as to demand was made on the trial. The only point there taken was, that the title had not passed to the assignee at the time de- fendant levied, the assignee not having then filed liis bond. That objection was untenable. The bond was filed within the time prescribed by the act. The judgment should be reversed and a new trial granted. Costs to abide the event. Chukch, Ch. J., FoLGBB and Andkews, J J., concur. Mil- USB and Eael, JJ., absent. 120 THE AMBEICAN INSOLVENCY BEPOETS. Greene, Assignee, etc. , v. The National Security Bank. COMMON PLEAS— PHILADELPHIA. Jamuaky 11, 1879. An assignee for the benefit of creditors deposited the proceeds of the estate jn the name of the assignor, without notice , to the bank of the assign- ment. Sdd, That he could maintain an action for the moneys so depos- ited. In Permsylvania a bank may set ofiE the amount of notes of a depositor held by it, not matured at the date of a voluntary general assignment by such de- positor, against the moneys in its hands on deposit at that time. K A. GREENE, Assignee of WILLIAM R. STEWART V. THE NATIONAL SECURITY BANK. Sur rule for new trial. On January 21, 1878, William E. Stewart made a general assignment to the plaintiff for the beAefit of creditors. The as- signor had a deposit account with the bank, defendants, in which, at the date of the assignment, the balance in favor ©f Stewart was one thousand seven hundred and nine doUara and three cents. The assignee employed the assignor as clerk. The latter continued the deposit account with defendants in his own name, made new deposits of moneys realized fi-om the assigned estate, and drew checks, the proceeds of which were used for the assignee, or accounted for to the assignee. On February 16, 1878, the balance in said deposit account to the credit of William E. Stewart was four thousand nine hundred dollars and forty-iive cents. Plaintiff then presented the check of Stewart, drawn to the order of plaintiff, as assignee, for the whole of this balance. The bank refused to pay that check, but paid plaintiff two thousand six hundred and seventy dollars, and sixty-six cents. This suit was commenced on February 19, 1878, for the difference between the two thousand six hundred and seventy dollars and sixty-six cents and the four thousand nine hundred dollars and forty-five cents, being two thousand two hundred and twenty-nine dollars and seventy-nine cents, with interest. THE AilEEICAN INSOLVENCY REPORTS. 121 Greene, Assignee, etc., v. The National Security Bank. Learning then for the first time of Stewart's insolvency and assignment, defendant denied the riglitof plaintiff to sue in his own name for any part of the amount claimed, and further claimed to set-off or recoup the amount of two promissory notes, one dated November 12, 1877, payable three montlis after date, due February 15, 1878, for nine hundred and eiglity-seveii dol- lars and iorty-one cents; the other dated November 15, 187T, at five months, due April 18, 1878, for one tlionsand two hun- dred and forty-two dollars, and thirty-eight cents. Both these notes were drawn by the assignors, William E,. Stewart &: Co., in favor of Stokes. The judge who tried the cause instructed the jury to find for the plaintiff for only the difference between one thousand seven hundred and nine dollars and three cents, and the two thousand two hundred and twenty-nine dollars and seventy-nine cents, for wliich suit was brought, with interest. Thus allowing the bank to set-off or retain the amount in its hands at the date of the assignment as against the two notes. The verdict being for five hundred and forty-eight dollars and eighty cents. Jok)i Fallon, Esq., for plaintiff, cited to sustain the right of action, Fraizer v. Banlc (8 W. & S., 18) ; BanJc v. Jones (6 Wright, 541) ; Stair y. Bank (3 Smith, 36S-). The debtor of an insolvent decedent's estate cannot have set-off for claim not due at the death {Conrad v. BanJc, 1 BiniL, 64 ; Bosler v. Bank, 4 Barr, 32 ; Ban7 TEEL and others. Bill for relief. Motion to dissolve injunction and answer. Mr. J. F. Dumont, for the motion. Mr. J. O. Shipman, contra. The Chancellor. — The complainants' assignees, nnder an assignment made to them by James M. Andrews, under the act "to secure to creditors an equal and just division of the estates of debtors, who convey to assignees for the benefit of creditors," by their bill seek to restrain the defendant, Teel, from execut- ing upon the real property which passed to them, by the assign- ment, a judgment recovered by him against their assignor, and John C. Bennett, in the Circuit Court of Warren County, pre- viously to the assignment. Andrews & Bennett were, when the judgment was recov- ered, partners in business in Phillipsburg. They were indebted to Teel at the time of the entry of the judgment (which was by confession) to the amount of the judgment for money lent by him to them, and money paid by him for them. The judg- ment was entered on the 7th of February, 1876, and on the same day a writ of fieri facias de bonis et terris was duly is- sued thereon, and levied on all the real estate of each of the defendants in the County of Warren. The assignment was made on the 15th of that month. On or about the 20th of the same month, Bennett & Andrews together made an assignment THE AMERICAN INSOLVENCY REPORTS. 131 Howell et al., Assignee, etc., t. Teel et al. to the complainant, Davis, under the act above mentioned, of all their partnership property for the benefit of creditors of the firm. Bennett is also insolvent individually. Under an exe- cution issued on the judgment, the real estate of the firm was sold, but only a small amount of the judgment was paid by the sale. The complainants insist that the judgment was recovered for a debt due from the firm, and that therefore Teel should be prevented from making any part thereof out of the individual property of their assignor until after the individual debt of the latter shall have been paid. They claim the relief which they seek, on the ground that in equity the creditors of a partnerahiji have a preference to have their debts paid out of the partnership funds before the private creditors of either of the partnera ; and, on the other hand, the separate creditors of each partner are entitled to be first paid out of the separate effects of their debtor before the partnership creditors can claim anything. They allege that Teel put in his under the assignment of Bennett & Andrews as partners, aud they insist that he thereby waived any lien he may have been entitled to under his judgment and execution thereon. Teel, by his answer, admits that he did so put in his claim, but says that it was expressely (and that it was so stated in the verifying afiidavit) put in as a claim on the judgment; he also says, in his answer, that he withdrew it on the same day on which it was put in. By so putting in his claim he did not waive any legal advantage which the judgment secured to him upon the property, which was owned by the assignors or either of them at the time when the judgment was entered. Yander-^ veer v. Conover, 1 How., 487 ; Moses v. Thomas, 2 Dutch., 124 ; Beil V. Fleming, 1 Beas., 14, 490. The rule of equity which the complainants invoke to restrain Teel from proceeding to collect the balance due on his judg- ment by sale of the separate real estate of Andrews, which passed under the assignment by the latter, cannot be applied to deprive him of the lien of his judgment on that property. His 132 THE AMERICAN INSOLVENCY REPORTS. Howeil et ol., Aaaignee, etc., y. Teel et aL judgment was entered by virtue of a bond and warrant of at- torney to confess judgment thereon. The bond, it may be re-, marked, was joint and several. By virtue of his judgment he might have proceeded to collect the amount due upon it by levy upon and sale under exeeution of the separate property of either or both of the judgment debtors, and this court would not have restrained him from so doing, on the ground that the debt for which the bond was given was a partnership debt, and there was partnership property out of which he might have collected the amount due thereon. Wisham v. lAppincott, 1 Stock., 353 ; Randolph v. Daly, 1 C. E. Gr., 313 ; Nat. Bk. of the Metropolis v. 8j)rague, 5 C. E. Gr., 13. In Wisham v.LvppincOtt, the chancellor (Williamson) said : " I have no hesitation in saying that where a joint creditor of a firm has judgment and execution levied on the separate effects of one of the partners, this court ought not, in mere compliance with any such rule, as that the separate creditors of each partner are entitled to be first paid out of the separate effects of the debt- or before the partnership creditors can claim anything, to inter- fere with such execution, either on the application of any one of the pai'tners or»any creditor of the firm or separate creditor or any of its members. In Nat. Blc, c&o., v. Sprague, the partners had given mortgages to secure individual debts." The chancel- lor (Zabriski) held that the principle, though applicable in the administration of partnership assets to be administrated here, was not applicable to liens created by partners upon the partnership property before it came into this court. He said the partners, while the partnership property is still under their control, have the power to appropriate it to pay or secure their individual debts, as against them the mortgage is good. These claims are for debts by them individually, and 1 do not think that the mere preference of individual debts over partnership debts is such a fraud upon partnership debts that after it has been done it will be set aside by a court of equity. It certainly will not be set a,8ide unless in case of insolvency, or when done in con- templation of insolvency to give an improper preference. . See also Meeoh v. Allen, 17 N Y., 300. THE AMBEICAN INSOLVENCY KBPORTS. 133 Tennent v. Battey. In the course of administration of assets, courts of equity follow the same rule in regard to legal assets which are adopted by courts of law, and give the same priority to the different classes of creditors which is enjoyed in law, thus maintaining a practical exposition of the maxim equitas sequitar legem. In this case there is no allegation of fraud ; the simple question presented is whether a judgment, recovered for a partnership, is, in case of the insolvency of the tirm, and the partners before it is collected in equity, to lose its hold as a lien upon the separate property of the partners, whether the vigilant creditor in such a case is to be held to have no advantage from the diligence which but for the insolvency of the partnership would, through a lien of j ndgment, have secured his debt out of the separate property of his debtor. The injunction will be dissolved, with costs. SUPREME COURT OP KANSAS. July, 1877. An attaching creditor has not, before he obtains judgment in the attachment suit, such a claim npou the property of the defendant as will entitle him to maintain an action to set aside an alleged fraudulent conveyanee of the defendant. TENNENT v. BATTEY. Eeeob from Marion District Court. Frank Doster, for plaintiffs. L. F. Keller (& A. E. Case, for defendants. Beewee, J. — Plaintiffs commenced an action against de- fendant Lucas on notes and an account, and caused an attach- ment to be issued and levied on property alleged to be his. Before prosecuting such action, they commenced this action tO set aside as fraudulent and void, as against creditors, an assign- ment made by defendant Lucas and wife to their co-defendant, 134 THE AMERICAN INSOLVENCX REPORTS. Tennent v. Battey. Battey, of all their property, including the property taken on attachment. A demurrer to the petition filed in this action was sustained, and the case is here for review. The principal question is whether the plaintiffs, by the mere suing out of an attachment and causing it to be levied upon the property conveyed by the assignment, and before the fact that they are creditors has been established by a judgment, have acquired the right to litigate the validity of the assignment. Upon this question elaborate briefs been filed by counsel on both sides, and authorities cited and commented on from nearly every State in the Union. The case has been before us for some titoe, and we have examined carefully the principal authorities cited by either counsel. On the mere matter of authorities a decision well fortified could be rendered* either way. In Drake on Attachment, Section 225, we find this sum- mary of the question : " In connection with the lien acquired by an attaching credi- tor has come up, in different forms, the question of his right to secure the benefit of his lien as against fraudulent conveyances of and encumbrances upon the attached property. The first shape this question assumed was as to the right of the attach- ing-creditor to maiiitain a creditor's bill in equity, to set aside such a conveyance or encumbrance. The doctrine that a creditor at large, before he obtains judgment, is not entitled to such a remedy, is familiar to the legal mind. ' The reason of the rule,' said Chancellor Kent, ' seems to be that until the creditor has established his title he has no right to interfere, and it would lead to an unnecessary and perhaps fruitless and oppressive interruption to the exercise of the debtor's rights. Unless he has a certain claim upon the property of the debtor he has no concern with his frauds.' Such doubtless is the general rule ... In different States the attempt has been made to establish another exception in favor of attachino- credi- tors. In New York, a bill in favor of such a creditor was once sustained by a Court of Chancery ; but this was contrary to the uniform course of decision in that State, before and since. In Illinois and Missouri the right to maintain such a bill was THE AMERICAN INSOLVENCY REPORTS. 135 Tennent t. Battey. denied. Ou the other hand, New Hampshire and New Jersey have held that an attachment confers a lien, in virtue of which the bill may be maintained. In New York, too, it was decided that an attaching-creditor is not, before he obtains judgment, entitled to impeach the bona fides of a judgment confessed i by a debtor to a third person before the attachment was levied." A question upon which courts have ruled so differently can- not be perfectly plain and easy of settlement. Many considera- tions of weight can be urged by either side, and it is not easy for either to answer fully the arguments of, the other. For a full review of the authorities we refer to the briefs of counsel, and shall content ourselves with a statement of that which has influenced cur decision. While an attachment is doubtless a specific lien, it is a lien of very uncertain tenure. It is subject to defeat by the disso- lution of the attachment on motion, or a judgment in favor of the defendants on the merits of the claim. The grounds for attachment given by our statute are many. Some of them imply no wrong on part of the defendant. Suits in attachment are common. Motions to dissolve come in almost every case, and the experience of every practitioner will testify that a large per cent, of attachments issued and levied finally fail. At- tachment-liens do not with us, as in some States, require a judicial' order for their creation. The mere affidavit of the creditor is sufficient, and that affidavit, too, alleging only in general term the existence of one of the statutory grounds for attachment. Hence, while it is a specific lien, it is a lien for a vei-y uncertain claim. Again, it would seem that no advantage would inure to the creditor, except in a mere matter of time, by sustaining such an action before the attachment and the claim are established by final judgment. So far as the creditors' security is concerned, the seizure by the ofiicer preserves the lien as against all changes and transfers, and anything that the debtor or his assignee could do subsequent thereto, except as to perishable property and property whose keeping is expensive, no sale can be ordered, until after the judgment, and for such property it would be of no! 136 THE AMERICAN INSOLVENCY EBPORTS. Tonnent v. Battey. advantage to sustain an action like this. Perishable property and property whose keeping is expensive demand an immediate sale, as no action can be immediately forced to trial and judg- ment. " Still, again, it would seem that often the time and attention of the court would be occupied with useless litigation. At any time before the judgment the defendant may move to vacate and dissolve the attachment, inquiring, if need be, into the truth of the grounds alleged therefor ; the judgment on the trial may be for the defendant, and that will end the attachment- lien. And whenever the attachment ceases, the suit brought to set aside any alleged fraudulent conveyance or encumbrance of the defendant fails also, and the whole time and labor of the court given thereto be wasted time and labor. Why should a court be subjected to this ? " Is not the language, above quoted, from Chancellor Kent, most apt ? Ought not a party have a certain claim upon the property of the defendant before he attempts to inquire into the bona fides of the defendant's transactions, and invoke the processes of law and appropriates the time and labor of courts in the prosecution of such inquiry ? And can a party, who has simply asserted a claim (and that is all, and attachment amounts to the mere assertion by the plaintiff of a claim), be said, in any just sense, to have a certain claim upon defendant's property ? We of course concede the right of the officer to defend the possession of the attached property, and in such a proceeding doubtless the hona fides of the defendant's acts may oftentimes be inquired into ; but it does not seem to follow that because the officer may defend his possession, the plaintiff may prose- cute an independent action, not to preserve the possession, but to clear up the title. Until his claim has become certain, he has no right to inquire into the title. Possession must be. pre- served to preserve the attachment-lien. But nothing more is necessary until the claim has been made certain. As counsel for the defendant say (we quote from their brief), the plaintiff's lien can be of no avail to them unless they obtain judgment. THE AMERICAN INSOLVENOY REPORTS. 137 Price V. Haines. Their right to enforce the lien is derived from the judgment, and yet the judgment might not be available if the lien of the attachment was lost before the recovery. Therefore, in order to preserve their lien as a security for satisfaction of any judg- ment they may recover, they have the right to defend that lien against third parties claiming goods, and in that defence they have the right to show any fact that will defeat the claimant's title. If this were not so, they might, though their claim against the debtor be never so meritorious, be compelled to re- linquish their security to one claiming under a title fraudulent as to them. But there can be no reason nor necessity for them, in order to maintain their lien, to institute independent actions against third parties who may have some kind of claim on the property, yet who cannot (and are not attempting to) dispossess the plaintiff. The only right the plaintiffs have under the attachment is to use such measures as may be necessary to preserve this security until they can reduce their claim to judgment. They have no right to harass other parties with litigation that may prove fruitless, until they have first obtained the right to have a sale of the property made. "When this right has been definitely settled, their lien having been preserved intact, they can then commence actions to remove obstructions in the way of their execution. But until this is done, they have no right to inter- fere with the claims of third parties. There can be no reason nor necessity for such a proceeding. The judgment will be affirmed. Valentine, J., concurring. HoETON, C. J., not sitting in case. SUPREME COURT OP MICHIGAN. Decided October, 1877. An assignment for the benefit of creditors is void if it does not include the ass^nor's real estate and all hU interest in it. 138 THE AMEBICAN INSOLVENCY REPORTS. Price V. Haines. The meaning of an assignment must be gathered from the whol« instrument. Where an assignment was made of all one's " goods, chattels, stock, promis- sory notes, debts, choses in action, evidences of debt, claims, demands, property, and effects of every description, to wit : All the goods, chattels, and property now in the store lately occupied by the party of the first part (the assignor), and also certain other specified chattels and debts," Seld, This did not include real esbate, and that the assignment was void. PRICE V. HAINES. Hkplevin for goods seized by the defendant as sheriff. On the trial, in the court below, judgment was given for plaintiff for six cents damages and costs. O. G. Hyde, for plaintiff. I'aggert, Simonds c& Fletcher, for defendant, cited the fol- lowing authorities as bearing on the construction of assign- ments like that in this case : Wilkes v. Ferris (5 Johns., 344) ; Hhoades v. Blatt (16 N. B. E., 32) ; Scott v. Coleman, (5 Litt. (Ky.), 349) ; RundUt v. Doll (10 N. H., 458) ; Beard v. Kim- ■hall (11 Id., 471) ; Burriel on Assignments, 266. CooLEY, C. J. — The question in this case is whether the plaintiff has shown in himself, as against the creditora of George E. Congdon, a title to goods which he claims were transferred to him by, a general assignment made by Congdon for the benefit of his creditors. At the time of the assignment, Congdon owned certain real estate liable for the payment of his debts. The assignment did not mention this, and the following is the whole of tlie granting and descrijptive portion of the instrument: "Now this indenture witnesseth that the party of the first part, in consideration of the premises and of one dollar to him paid before the sealing and delivery of these presents, the receipt of which is hereby acknowledged, has granted, bargained, sold, assigned, transferred, and set over and by these presents, does grant, bargain, sell,^ assign, transfer, and set over unto tlie party of the second part, his heirs, executors, administrators or assigns all and singular, the goods, chattels, stock, promissory notes, debts, cJwses in action^ evidences of debt, claiips, demands, THE AMERICAN INSOLVENCY REPORTS. 139 Price V. Haljies. property and effects of every description, belonging to the party of the first part, wherever the same may be situated, to wit : all the goods, chattels, and property now in the store lately occupied by him in the village of Cedar Springs, also two pair of logging-trunks, one lumber-wagon, one buggy, one set double harness, the undivided one-fourth of an engine and boiler at Burchville, and the books of accounts lately used by me in said store, and the debts due me contained therein." Unless the terms here employed are sufficiently comprehen- sive to convey the real estate, the circuit judge was right in holding the assignment invalid. Smith v. Mitchell (12 Mich., 180.) We are of opinion that the real estate was not con- veyed. If the general terms employed in the assignment were suf- ficiently comprehensive to embrace real estate, they would seem to be restrained by the words which followed, and which apparently limited their force to the property particularly specified. There have been numerous decisions which have so held where, after words of grant as general as these, the assignment has proceeded to refer to a schedule attaclied for a more full and particular description. The construction of such instruments has been that they transferred only what was eimmerated in the schedule attached ; and in Mims v. Arm- strong (31 Md., 87, 95) it seems to have been thought that had the sp^citication followed the words of grant in the instrument, the case would have been still plainer. It would at least, we think, be equally plain. The party grants all his property, to wit, what he specifies or describes. This conclusion ia strengthened in this case by the fact that the assignment is not witnessed and acknowledged so as to entitle it to record as a conveyance of realty. No doubt the title might pass without these ceremonies, but it could not be fully protected, and it is so much a matter of course that conveyances of land should be put in proper form for record, that in any doubtful case the omission to do this is entitled to weight ; we must judge of its intent as a whole. Nye v. Van Husan (6 Mich., 329.) At best the granting part of the instrument leaves us in doubt regard- 14:0 THE AMERICAN INSOLVENCY REPORTS. Burrows v. Eeays. ing any purpose to convey lands, and .other parts do not remove the doubt, but strengthen and'contirin it. The judgment is reversed, and judgment rendered for tlie defendant for the value oi: the goods, as appearing by the record, with interest and costs of all the courts. The other justices concurred. SUPREME COURT OF MICHIGAN. Decided October, 1878. A voluntary assignment for the benefit of creditors is suflSoient to pass title to the assignee, and enable hina to enforce it as against the assignor, as well as others, even though it is made under a foreign Insolvent Act. Such an assignment made in Canada may be enforced by the assignee against the assignor as to property within the United States, and trover may be maintained by the assignee against the assignor for notes detained by him after being assigned under the Canada Insolvent Law. BURROWS V. KEATS. Trover for notes detained by plaintiff in error. Error to Superior Court of Detroit. Oriffin (& Dickenson, for plaintiff in error.. Atkinson <& AtJcinson, for defendant in error. Maeston, J. — Defendant in error brought an action of trover for the conversion by the defendant, plaintiff in error, of a large sum of money and certain promissory notes. Defendant, by his counsel, demurred specially to the declaration. The fii-st cause assigned — the only one we need here discuss — was that the declaration did not with sufficient certainty set out the description of the promissory notes alleged to have been held by defendant at the time of making the alleged assignment, and on which notes recovery is sought in said court. The description in the declaration was, " divers promissory notes against sundry persons and in various amounts of great value, to wit : of the value of four thousand dollars. The declaration also in the same connection set forth that the defendant, Bur- rows, being lawfully possessed of these notes, executed to the THE AMERICAN INSOLVENCY EEPORTS. 141 Burrows v. Keaya. plaintiff a voluntary assignment for the benefit of his (Burrow's) creditors, of all his property, goods, chattels, effects, and chosea in action / that plaintiff accepted said assignment, and thereby became the owner of such choses in action; that he casually lost the same, etc. Taking this count of the declaration, and looking at all its parts, it would appear thei-efrom that the plaintiff did not at any time have these notes or any of them in his possession, or that he ever had any particular information from which he could give a more minute description of them. He sets forth that they were in the possession of the defendant, and that he, the plaintiff, became owner thereof under and by virtue of a voluntary assignment made to him by the defendant for the benefit of creditors, and that the conversion took place after the assignment. The allegation of a conversion of these notes by the defendant shows them to be in possession of defendant and out of the possession of the plaintiff. What description should the plaintiff give of these notes, under such circumstances, to enable him to maintain an action of trover? He could not give the name of the maker or the date or the amount of any of them. To require a specific description of each note, or any better or more accurate description than the one given, would be to preclude the plaintiff bringing trover at all. It is true he might set up more fully and clearly the reasons why he does not more specifically describe the property, but this would add nothing to the description given. One object in requiring a definite description to be set forth in the declaration of the property converted, is to enable the defendant to meet the charge ; but in a case like the present, where the effect and purport of the charge is a wrongful pos- session of the property by the defendant himself, his possession gives him the information, and it is his wrongful act in taking and retaining possession that renders the plaintiff unable to give a more full or perfect description. It may be said, however, that this reasoning presumes the defendant did wrongfully convert the notes, and that while sound enough in cases where the 142 THE AMKEICAN INSOLVENCT EBPOETS. BtuTowg V. Kfiaya. defendant had actually been gailty of conversion, it is nnsonnd where the defendant is not gnilty; that an innocent pereon from this vagne general charge would be nnaljle to meet the particular proof adduced against him on the trial, and that we have no right to presume that the defendant in this case is other than innocent of the charge made. Perhaps this is so ; but, in examining and testing the sufficiency of a declaration on de- murrer, we must assume the allegations in the declaration to be true, that the allegation in the declaration, alleging a loss of these notes by the plaintiff, and the finding of them by the defendant — in other words, a conversion of them by him, as in the usual form and therefore well pleaded and admitted by the demurrer, cannot be denied. The notes, therefore, for the pur- pose of his question, are supposed to be in the hands of the de- fendant, and beyond the reach or control of the plaintiff, thus rendering it impossible for him to describe them with fulness or accuracy. Under such circumstances a general description must be held sufficient, and this doctrine has been held in crim- inal cases where much greater accuracy is usually required. {The People v. Holbrook, 13 John., 90 ; Tfie People v. Kent, 1 Doug. (Mich.), 4:2.) The objections made here that the verdict was not war- ranted by the evidence, and that the court improperly took the case from the jury, we think are not well taken. The evidence on the part of plaintiff consisted principally, if not wholly, of admissions made by the defendant as to the money and notes and their value. If, as now claimed, these notes, although on their face purporting to be for nine hundred dollars, may have been worthless or of little value, on account of the bankruptcy of the makers, or for other supposed reasons, we think it was incumbent on the defendant to liave shown such facts upon the trial. He could not sit by and per- mit testimony to be introduced and submitted to the court and jury, tending to show his liability and the extent thereof, and then seek to evade the conclusion arrived at by mere speculations or guesswork. If the notes were of less value than his admission, as testified to would seem to indicate, he THE AMERICAN INSOLVENCY REPORTS. 143 Burrows v. Keaya. shonld have shown snch fact by competent testimony. Nor do we understand, from the printed record, that the court with- drew that was contested or disputed below, from the consider- ation of the jury. The requests to charge, if given, would have taken the entire case fi-om the jury. These the court declined to give, and instructed them that the plaintiff was en- titled to recover. The real question in controversy in this case, viz. : that the plaintiff failed utterly to show any title by which he could maintain the action, yet remains to be considered. To support his title, he introduced an instrument, of which the following is a copy : Insolvent Act of 1869. " This assignment, made between Charles Burrows, of Wil- kesport, lumber merchant, in the Coimty of Lambton and Prov- ince of Ontario, of the firet part, and William J. Keays, of the town of Sarnia, in the County of Lambton and Province of Ontario, official assignee for said County of Lambton, of the second part : witnesseth that under the provisions of the In- solvent Act of 1769, the said party of the first part, being insolvent, has voluntai'ily assigned, and thereby doth voluntarily assign to the said pai-ty of the second pai-t, accepting thereof as interem assignee under said act, and tor tlie purposes therein provided, all his estates and effects, real and peraonal, of any nature and kind whatsoever, to have and to hold to the party of the second part, as assignee, for the purposes and under the act aforesaid. " In witness whereof the parties hereto have hereunto set theii" hands and seals, this l-2th day of October, in the yeai* of our Lord one thousaiid eight hundred and seventy-four. " Charles Bckrows, [l. s.J « W. J. Keays. [l. s.] " Siffned, sealed, and delivered, in presence of " "W.KoY." It is insisted that tliis instrument was not intended as an absolute bill of sale ; that it is a document made under the provistons of the Insolvent Act of 1869, " for the purposes therein provided," and that the plaintiff holds the property, as assignee, " for the pm-poses and under the act aforesaid," and 144 THE AMERICAN INSOLVENCY REPORTS. Burrows v. Keays. that what these purposes are, or what title passes, without ref- erence to tlie act, we have no means of knowing, and that even had the act been introduced and proven, it would have no force and would be inoperative in Michigan. This argument might be correct if plaintiff's title were derived solely under and in virtue of the act referred to. If, however, Burrows voluntarily made an assignment for the benelit of liis creditors, the fact that it was made under said act, and for the purposes therein provided, would not, as between the immediate, parties thereto, or as between the assignee and wrong-doers, preclude or pre- vent tlie assignee from protecting and enforcing his right to the property in any coiirt of competent jurisdiction. The pro- visions of the act referred to would undoubtedly fix, govern, and control the rights, power, and duties of the assignee in the execution of trust ; but in this case the court is not called upon to settle or determine any question arising under the act, or as between the assignee and the creditors of the assigncu". A reference to the assignment shows that " the said party of the first part (Burrows), being insolvent, has voluntarily assigned, and hereby doeth voluntarily assign, to the said party of the second part (Keays), all his estate and effects, real and pereonal of any nature whatever." This, we think, is sufficiently full and complete to transfer and pass the title to the plaintiff to, the property in question, and gives him a right to come into court and enforce and pro- tect such title as against the claims of the assignor. Any other view assuming the position of the defendant to be coi"- rect, would enable a debtor residing in Canada to send his property into this State, then make a voluntary assignment for the benefit of his creditors, and at once come here and enjoy his property, without any power in the assignee to follow him and obtain possession thereof. This branch of the case very closely resembles Oraydon v. Church, 7 Mich., 50, where the same questions were discussed, and the conclusion there ariived at must govern and determine in this ease. The judgment must be affirmed, with coBta. The other justices concurred. THE AMERICAN INSOLVENCY REPORTS. 14:5 Worthy, Assignee, v. Benham, etc. SUPREME COURT OF NEW YORK. General, Term— Foukth Department. Dbcidbd January, 1878. Where an assignment is made for the benefit of creditors under the Act of 1860, as amended in 1875, the failure of the assignee to give the bond, as required by the statute, does not invalidate the assignment. It was otherwise un- tU the Act of 1874, but since the Act of 1875 the assignee is prohibited from selling the assigned property, or converting it to the purposes of the trust. MORTIMER P. WORTHY, as Assignee of DA VID W. CASE, plaintiff, v. BA YID Y. BENE AM, Sheriff of Ontario Go., defendant. Metcalf <& Field, for plaintiff. Edviin Micks, for defendant. Taicott, J. — This is a motion for a new trial, after a non- suit in the Ontario Circuit, upon exceptions ordered to be heard at the General Term in the first instance. The action is for taking and detaining 6,000 hoop poles. The plaintiff claims as the assignee of one, Dudley W. Case, under an assignment for the benefit of creditors, ratably and without giving preferences. The assignment was dated and acknowledged the 25th day of September, in the year 1876. Case made a schedule and in- ventory of the assigned property, pursuant to Section 2, of Chapter 348, of the Laws of 1860. ITo question was made as to the form or contents of said schedule and inventory. The schedule and' inventory were duly verified by Case on the 19th day of October, 1876, and filed in the office of the county clerk on the 30th of October, 1876. The defendant justifies the taking and detaining of the woods, as sheriff of Ontario Co., by virtue of an execution in favor of one Edwin Bond, on a judgment against the assignor. Case recovered in February, 1877. The defendant alleged in VOL. I. — 10 146 THE AMERICAN INSOLVENCY REPORTS. Wqrthy, Assjguea, v, Benham, eta his answer that said assignment was made and accepted wjth intent to hinder, delay, and defraud the creditors of said Case. On the trial he gave no evidence tending to impeach the validity of the assignment except by proving that the bond required by the Statute of 1860 was not approved by the county judge or filed till the 4th of December, in the year 1876. The justice at the circuit ordered the plaintiff to be non-suited, relying on the case of Juliavd v. Raihbone (39 N. Y., 369). We think the circuit judge erred in directing the non-suit. The Court of Appeals held, iu JvHi/attd v. Rathbone, that the neglect to file the inventory and schedule within the time prescribed ren- dered the assignment void ; and afterward the Legislature, by the Act of 1874, Chapter 600, enacted that if the assignor omits or refuses to make and deliver the inventory or schedule and afiidavit, as in the act specified, " the assignment shall not for such reason become invalid or be ineffectual."' This alteration of the statute the Court of Appeals, in TJie Produce Bank v. Morton (52 How. Pr. R., 157), recognizes as an abrogation of the rule laid down by court in Juliaud v. Rathhone {supra). By the Act of 1875 the Statute of 1860 was still further amended, by providing that the assignee, in any such assignment, shall, within ten days after the delivery to the county judge of the inventory and schedule, and before he shall have power or authority to sell, dispose of or convert to the purpose of the trust any of the assigned property, enter into a bond, etc. The statutory provision on this subject seems to intend, ijot that a failure to enter a bond within ten days shall have the effect to avoid the assignment, but to proliibit the assignee frojtn selling the assigned property or converting it to the purposes of the trust uniil he shall have entered into such bond.' Such seems to be the view the courts have taken of that provision since the case of JuLiavd v. Rathhone. The Court of Appeals, in Thrasher v. Bentley (59 N. Y., 649 ; S. 0. more fully reported in 1 Abbott's New Cases, 39), holds that even the entire in- validity of the bond does not affect the validity of the assign- ment. See also a decision to the same effect in the First Depait- roen ( Von Eein v. Elkus, 8 Hun., 516). THE AMERICAN INSOLVENCY REPORTS. 147 In, re Leipziger. The non-suit is set aside, and a new trial ordered, costs to abide the event. Pre^mxL — ^Mullin, P. J. ; Talcott & Smith, JJ. NEW YORK COMMON PLEAS. Mat, 1878. A composition in bankruptcy does not become effective so as to disoiarge the debtor from his debts until the composition notes are paid, and' if a note given to a creditor agreeing to the composition is not paid when due he can sue for the original debt and is entitled to his "pro rata proportion under an assignment for the benefit of creditors, if one has been made. The debtor made a voluntary general assignment for the benefit of creditors. Proceedings in "bankruptcy having been commenced against him within three months thereafter, he made a proposal for composition, which was accepted, the resolution providing that upon payment of the composition the debtor's property in the hands of the voluntary assi|;nee should tie forthwith delivered to the debtor and the said assignee released and discharged from all claims agpnst him on the part of the creditors aris- ing out of his office. No adjudication was had against the debtor. On an application made before the composition notes were payable to remove the voluntary assignee on the ground that he had failed to file a bond, and that without filing such bond he had been selling and disposing of the estate, Held, that the assignment was in no way aSected by such agreement of the creditors ; that the assignee was not thereby relievedof his duty to file a bond, and that if he shpnld do so and then transfer the property to the debtor he would do it upon his own responsibility if the composition is not carried out. In re assignment of MORITZ LEIPZIGER. Application for the removal of Frederick Lewis as assignee of Moritz Leipziger, under a general assignment for the benefit of creditors, on the ground that he has not filed a bond as re- quired by statute, and that, without filing the said' bond, he has been engaging in selling, disposing of and converting the estate, and for the appointment of a new assignee. The assignment to Lewis was made on the 9th day of Janu- ary, 1878, and was duly acknowledged and recorded according to law, and the assignee took possession of the estate on the same day. Schedules' were filed by the debtor, January 26, 1878, and apon the schedules so filed the assignee's bond was fixed at the sum of twenty thousand dollars, but no bond has ever been given. 14:8 THE AMERICAN INSOLVENCY RBPOETS. In re Leipziger Proceedings in bankruptcy were commenced against Moritz Leipziger within three months thereafter, but no adjudication was had therein. Pending these proceedings, said Leipziger made a proposal for composition, wiiich provided for the pay- ment of twenty per cent, in one payment, in ninety days from the entry of the order recording the resohition to accept the composition, secured by his note endorsed by one Louis Ettinger. This proposal was duly accepted, the resolution providing that " upon the payment of the said sum of twenty per cent, as herein provided, all the property and effects of every kind and nature of the said Moritz Leipziger, the alleged bankrupt, and all the books and papers relating thereto wliich have come actually or constructively into the possession of Fred. Lewis, assignee for the benefit of creditors, and all right, title, claim and demand whatsoever which the said Fred. Lewis, assignee as aforesaid, may have therein or thereto shall revert to the said Moritz Leipziger, the alleged bankrupt, and the said pi-operty, assets, books, papers and effects shall forthwith be delivered to said Moritz Leipziger, such alleged bankrupt, and the said Fred. Lewis, assignee for the benefit of creditors, shall there- upon be forever released and discharged from any claims against him on the part of said creditors arising out of such office and his duties in connection with the estate of the said Moritz Leipziger, the alleged bankrupt." Upon this application an or"der was granted on the 2l8t day of March, 1878, requiring the said Frederick Lewis to show cause why he should not be removed from acting as such as- signee, and a temporary injunction was also granted restrain- ing him from interfering with the estate. Upon the return of the order to show cause it was con- tended by the assignee that in view of the provision of the reso- lution of composition above cited, it was not necessary to file a bond. Chamlerlam., Carter & Eaton, for the petitioner. G. A. RwiJcle, for the assignee. THE AMERICAN mSOLVBNCY REPORTS. 149 In re Leipziger. Daly, C. J. — My conclusion on this application is that the composition is a proceeding distinct and different from the pro- ceedings for a discharge in bankruptcy, and that the construc- tion which has been given by tlie United States Courts to th.e law respecting the one does not necessarily apply to the other; that the composition does not become effective so as to dis- charge the petitioner from his debts until tlie composition notes are paid, and if a note given to the creditor agreeing to the composition is not paid wlien due, he can sue for the original debt and is entitled to his pro rata proportion under an assign- ment for tlie benefit of creditors, if one has been made. (£!d^ wards V. Rancher, L. R. , 1 0. P. D., Ill ; Edwards v. Ooombe, L. K, 7C. P., 519 ; NeweUy. Van Praagh^'L.B.., 9 C. P., 96.) What was held in Miller v. Machensie (13 N. B. E., 496, 2 W. Dig., 205), upon which the assignor relies is, that where the creditors agreeing to the composition wei-e all paid, and the creditor had been tendered the sum paid to each of the creditors agreeing to the composition, and he had refused to take it, his debt was extinguished, and that a writ of attachment sued out by him to enforce his debt should be quashed, which is not the present case. Nothing has been done in this case but to give notes for the composition, which may never be paid. The composition provided for by the Act is a^ro rata payment or satisfaction in money. (Section 5103.) The creditors in this case agreed to take notes payable in three months with a certain person as endorser, but until these notes are paid there has not been ajJT-o rata payment or satisfaction in money. It has been simply an agreement on the part of the creditors to give the debtor time to effect the composition, and it is not effected until the notes are paid. The .creditors taking these composi- tion notes also agi-eed that the assignee under the State law might surrender and deliver up to the debtor all property re- ceived by him under the assignment, and waived notice of any proceedings he might take to be discharged from his liability as assignee. It does not follow from this that we are called upon to relieve the assignee from giving the bond required to perfect his title to the property. If he does uot file a bond 150 The ameeican insolvency reports. The Firat National Bank of Newark v. HolmeB et al. within the specified time, the court has power to remove him, to make provision for the safe custody of tlie estate, and the appointment of another assignee. (Laws of 1877, Chap. 466, See. 6.) If he files it, and then transfers the property assigned to him to the debtor, he does it upon his own responsibility if the composition is not carried out and effected. So far as this court is concerned, he must tile his bond or be removed. After he has done so, he must act upon his own responsibility and that of his sureties if he considers himself justified in delivering up the assigned property to the debtors. Whether the extinguishment of the debts by the payment of the composition notes will have any effect upon an assign- ment made within three mouths of the filing of his petition by the debtor for the discharge of his debts, upon an agreement of the requisite number of his creditors to accept a composition, is a question I am not now called upon to decide. What I do decide is that the assignment is in no way affected by M'liat has in fact taken place-^an agreement of the requisite number of creditors to receive endorsed notes for the fro rata amount agreed upon, and their agreement that the assignee may deliver up the assigned property to the assignor. SUPREME COURT— PENNSYLVANIA. October, 1877. An assignment for the benefit of creditors vests the title in the assigiiee forth- with, although he may be ignorant of the assignment. A trust does not fail for want of a trustee. It is valid whether the assignee ever accepts the trust or not. » THE FIRST NATIONAL BANK OF NEWARK v. HOLMES, LAl^TERTYi& CO., Garnishees. SIMON MARKS, Appellant. Before Agnew, C. J., Shakswood, Meroue, Gordon, Pax- son, Woodward, and STKRRErr, JJ. The AMERICAN INSOLVENCY REP0IIT9. 151 The First National Bank of Newark v. Holmes et al. Appeal from the Court of Common Pleas, No. 2, of Alle- .ghany Co., of Oct and Nov. Term, 1877, No. 37. This appeal was by Simon Marks, assi^^nee of Jacob Needy, from the decree of the court, confirming the report of the auditor appointed to distribute a fund paid into court by Holmes, Lafferty & Co., garnishees of said Jacob Needy. Marks was the assignee under a deed of voluntary assign- ment for the benefit of ci-editors, made by Jacob Needy and dated at Pittsburgh, July 22, 1875. On that same day the plaintiff, The First Nat. Bank of Newark, Ohio, had caused an attachment under the act of March 17th, 1869, to be issued against said Jacob Needy, by virtue of which the defendants below, Holmes, Lafferty & Co., were summoned as garnishees. Josiah Ooken, for appellant. Me Cr eery ds bailie, for appellee. Mr. Justice Sharswood delivered the opinion of the court. As to the question discussed by the learned auditor in the court below of the right of the assignee in this case to intervene a,nd claim the fund, we think the authorities eited by him do not apply. It is true that he stands in the sImmjb of the assignor as to all transactions before the assignment. He could not set up the fraud of assignor in any previous transfer or judgment. He does not represent the creditors who may have superior claims, and he is not armed with their powers. {Ikodvea v. Williams, 3 WharL, 492 ; Vandyke v. Christ, 7 W. & S., 373.) Nor can he appeal from a decree distributing the trust funds in his hands, unless 4ie is personally a^rieved. (Mellon Appeal, 8 Casey, 121.) But he has a perfect right in virtue of the assignment, and as a trustee for the creditoi-s, to assert his and their right to any property of the assignor which passed by the assignment against any person claiming by subsequent transfer attachment, judgment, execution, or any other lien. This brings us at once to the real ground of this controversy —Which was prior in time, the assignment or the attachment ? 152 THE AMERICAN INSOLVENCY REPORTS. The First National Bank of Newaik v. Holmes, et al. The learned auditor, admitting that tlie assignment was exe- cuted, acknowledged and left for record in the oflBce of the recorder of deeds before the writ of attachment was into the ■ hands of the sheriff, was of the opinion that because there was no evidence that it was accepted by the assigaee before the ser- Tice of writ, the attachment must prevail against the assign- ment. In this we think there was manifest eri'or. It will be unnecessary to discuss the general question of what constitutes a general delivery of a deed, or to examine or compare the numerous decisions reported in the books upon this subject. We have a case in this court upon the execution of an assignment for the benefit of creditors, which was fnlly considered, and is directly in point. {Read v. Robinson, G W. & S., 329.) It was there held that a counuon law conveyance, given to an agent for transmission to the grantee, vested the title in the grantee forthwith, though ignorant of the transac- tion, and that so far as an assignment in trust for the benefit of creditors is concerned, the express refusal of the assignee to accept would not invalidate it. Chief -Justice Gibson says: " The Act of 1836 provides that the several courts having juris- diction shall have power to appoint assignees or trustees where any sole assignee or trustee shall renounce the trust or refuse to act under or wholly execute the same." Now, a trust de- pending for its existence on the assent of the trustee to the grant in which it is declared, is, when renounced, in the very category defined to the fii-st member of the clause ; for it is a rule to which there is said to be no exception, that there is no renunciation after acceptance, and consequently after assent to the grant of the legal estate. We do not think that it ought to be any longer an open question in this State since Read v. Robinson, and the subsequent cases of Blight v. Schenok (10 Barr., 285), and Johnson v. Herring (10 Wright, 415), that the moment an assignment for the benefit of creditors is placed by the assignor or any one interested, in the office of Recorder of Deeds of the proper county and within the prescribed time, the beneficial interest of creditors, the oestuis que trtcst, are cer- tainly and completely vested, and it is totally immaterial when THE AMERICAN INSOLVENCY REPORTS. 153 Keevll et al. t. Donaldson. the assignee accepts the trust or whether he ever accepts it at all. In Blight v. Sohenok Mr. Justice Eogers said that the delivery was complete when the grantors declared before the proper officers that they signed, sealed, and delivered the deed without saying or doing anything to qualify the delivery, is well settled on anthority. If the grantee had been at the time either peraonally or by agent, no person would doubt that the title was vested ; but it is ruled that this will not prevent it taking effect as a good deed. {Garnons v. Knight, 5 IB. & C, 671 ; Lloyd v. Bennett, 8 C. & P., 124, In Johnson v. Her- ring, Mr. Justice Strong says : " A trust does not fail for want of a trustee. A delivery of an assignment is good wlien tlie instrument has passed out of the control of the assignors with their assent to its taking effect. Delivery, though necessary to give effect to any deed, is an act done after, in common lan- guage, the deed has been made or executed. The evidence of it may rest entirely in parol. It is not usually attended with any publicity, and if in case of voluntary assignments it is ne- cessary to look beyond the deeds themselves to know when they became operative, a wide door is open for establishing seci-et trusts, which it was the manifest purpose of the legislature to restrain. Nor is there any hardship in adopting such a con- struction. The assignment may be placed upon record by the assignor, or by any one having a legal or beneficial interest. Decree reversed at the cost of the appellees, and now it is ordered that the fund in court, four thousand one hundred and three dollars and fifty-seven cents, be awarded and paid to the appellant, Simon Marks, as assignee for the benefit of the cred- itors of Jacob Needy. «♦» SUPREME COURT OF KANSAS, JAN0AKY, 18/tt. Where an assignment for the benefit of creditors is made by a firm whose lia- bilities are less than the assets, and the deed of assignment contained a clause conditioned that the assignee proceed under it, unless the indebt- edness of the firm can be paid or settled with otherwise, etc. iieW, 154 THE AMERICAN INSOLVENCY EBPORTS. Keevil et al. v. Donaldson. Tliat the assignment was made with the intent to binder and delay cred- itors, and was void. A court has no power to make a new deed of assignment any more than a new contract between parties. /. G. KEEVIL et al. v. J. V. DOIHALDBON. Error from Linu District Court. Sheffield (& Kelly, for plaintiffs ia error. J. 8. Bentley, for defendant in error;. HoRTON, 0. J. — The question at issue is whether the assign- ment of Joseph McOomb and E. F. Duncan, of the firm of " McConib & Duncan," to the defendant in error, in trust for the creditors of said firm, is valid. If valid, the judgment of the court below must be affirmed; if void, the judgment must be reversed. The first and leading objection to the assignment is that the special clauses in the instrument to the effect that the assignee shall take possession of the property transferred to him, sell and dispose of the same with all reasonable dili- gence, either at public or private sale, for the best prices that can be obtained therefor, and convert the same into money, " unless the indebtedness of the said Joseph McOomb and E. r. Duncan, partners as aforesaid, can be paid or settled other- wise by amicable arrangements between the creditoi-s of the said McComb & Duncan," etc., . . . "and out of the proceeds of such sale, if any be made," etc., render the assignment void. The difficulty in the case arises from the doubts of the inser- tion of these special provisions and their proper interpretation. But an examination of all the instrument and the facts devel- oped on the trial aliunde, the instrument that the total indebt- edness of the firm at the date of the assignment was only five hundred and ninety-six dollars and forty-one cents, and the amount and value of the assets of the firm was six hundred and fourteen dollars and eighteen cents, lead us to the conclusion that there was an intention in exeoutins the deed to hinder and delay the creditors ; that this intent was actually ontert«,ined by the debtors ; and not only that there was such actual intent, but THE AMERICAN INSOlVENOT REPORTS. 155 Eeeyil et al. v. Donaldson. that Buch intent was a fraudulent one. It appears to us that it was anticipated by the making of the assignment, that the creditors would be forced into some compromise or settlement of their claims, and that when the assignment had accomplished its purpose of releasing the firm from the immediate payment of their debts, or had resulted in having the creditors take the property and effects in satisfaction of their claims by amicahle arrangement between themselves, it was expected the mission of the deed would be accomplished. In such an event there ■would be no sale, and indeed nothing further for the assignee to do. The assignment was to have effect if no "amicable arrangements " between the creditors could be made ; if such arrangements were made, then there was to be an immediate end to the assignment. The laws of the State in relation to assignments were to be disregarded, and the estate closed up by the creditors either with the assignors or assignee regardless of the express provisions of the statutes. It was a plan to tie up the property to induce a settlement with creditors. Apower to assignees to compound with all or any of the creditors in such manner and upon such terms as they should deem proper, was regarded in a leading case in New York as peculiarly ob- jectionable, and one that was impossible to sustain. Waheman V. Orover, 4 Paige, 247 ; same case on appeal as Grover v. Waheman, 11 Wend., 187. In Illinois, a clause in a general assignment authorizing the trustee to compound with the cred- itors renders it void. Hudson v. Maze, 4 111., 578. If it was intended in any way by these special provisions in the deed of assignment to reserve to the assignors any power or control over the property assigned by it in the event as an amicable arrange- ment among the creditors, their effect is equally fatal. Powers of this kind " poison it throughout." Counsel for the defend- ant in error, fearing the constructions which may be given in these special clanses, attempts to parry any injury to the deed of assignment vith the argument that our statute prescribes the duty of the assignee, who becomes and is an officer of the court, and must carry out the assignment as required by the statute without regard to the provisions of the instrument, and, in sub- 156 THE AMERICAN INSOLVENCY REPORTS. In re Assignment of Horsfall. stance, when an assignment is once made, however fraudulent or -void upon its face, it is cured by the operation of the assign- ment law. Not so. TJie court has no right to make a new deed of assignment any more than a new contract between parties. The fact tliat the assignment may be construed in opposition to the requirement of the general assignment laws is an addi- tional argument of its invalidity. If an assignment is made for the benefit of creditors, and thereby an insolvent's property is unconditionally and unreservedly transferred to an assignee, with a general authority to the latter to receive, hold, and dis- pose of it for the equal benefit of all creditors, the Statutes of the State provide and regulate the assignee's conduct, etc. But when an assignment is void owing to its fraudulent condi- tions or from a purpose of hindering, delaying, and defrauding creditors, tlie law gives it no aid or assistance, and when prop- erly attached by a creditor it has no power or force either within itself or from the authority of the assignment act. This view renders it unnecessary to consider the other objections made to the assignment. The judgment of the district court will be reversed. All the j ustices concurring. N. Y. COMMON PLEAS. Gbnbkal Term— Dbcidkd Febbuart, 1879'.' Where, after an assignment for the benefit of creditors, a composition deed is obtained from creditors by an assignor, the assignee cannot reassign the property and be discharged from the trust on consent of some of the creditors and the assignor without a regular accounting under the statute. In the Matter of the Assignment of JOHN H. HOES- FALL to JOHN W. HESSE. John H. Horsfall, after making an assignment to John "W. Hesse for the benefit of credit(W's, obtained from his creditors a composition deed, discharging him on payment of twenty- THE AMERICAN INSOLVENCT REPORTS. 157 In re A^signinent of Hoisfall. five per cent, of their respective claims. The deed provided that upon such jftiyment the assignee might reassign to the as- signor, and an order be entered without notice that the assignee be discharged and his bond cancelled. Hess, the assignee, who was a creditor to the amount of ten thousand dollars, agreed to sign the composition deed upon a verbal assent by Horsfall and a large creditor named Briggs to a waiver of a public account- ing. Horsfall acceded to the demand of Hesse that an order be entered discharging him before he would reassign the prop- erty and before the creditors were paid. This being done, Hesse paid over six hundred and forty-one dollars to meet a set- tlement requiring over two thousand dollars. Horsfall dis- covered that Hesse had retained in his possession over six hun- dred dollars, had paid extravagant fees to his lawyers and otherwise mismanaged the estate. Judge Larremore, upon application of John T. Camp, a creditor, who, though he had signed the composition deed, was not a party to the verbal agreement between Horsfall and Hesse, vacated Judge Yau Brunt's ex parte order discharging Hesse. From this order Hesse appealed. Louis G. Waehner, for appellant, Hesse. George C. Lay, Jr., for respondent, Camp. Dalt, C. J. — The order vacating the order discharging the assignee should, in my opinion, be aflBrijied. The statute has provided for the mode in which an assignee in an assignment for the benefit of creditors, under the statute, where there has been a composition between the assignee and 'his creditors, may be discharged ; which is on a proceeding for an accounting under the act (Laws of N. Y., 1877, Chap. 466, Sec. 20). It was, undoubtedly, as the appellant claims, within the power of the creditors to waive the accounting, for a pai'ty may waive any provision of law, or statutory or constitutional enactment designed for his benefit or protection. But the creditors in this case have not by the cpmposition .deed waived an accounting. The assignor and the creditors, 158 THE AMBEICAN INSOLVENCY REPORTS. In re Assignment of Horsf nil. Briggs & Harris, who together brought about the composition, did so with the assignee, and tlie application of the assignor Horefall, and of Briggs, to vacate the order discharging the assignee, was denied by Judge Van Hoesen, in the case of Bi'iggs, upon the ground that he had, by the verbal agreement, waived his right to accounting. But, the petitioner Camp was no party to this verbal agreement, and is in no way concluded by it. He is simply one oJ^ the ci-editora who signed the com- position ; and all that they agreed to was that an order jnight be made by any judge of this court, discharging the assignee without notice to them. The assignee was entitled, under this agreement, to apply to any judge of this court for his discharge, without notice to the creditors who signed the composition deed ; but the only mode in which the court had power to discharge him was upon proof of the composition in a proceeding for an accounting. When the creditors consent that an order may be made by any judge of the court discharging the assignee, they necessarily mean discharging him without any notice to them in the man- ner prescribed by law, there being no other way in which a judge could discharge him. To constitute a waiver the consent should haye been with- out any accounting. The ex parte order, therefore, discharging him, was irregu- lar and was properly vacated. It was provided by the composition deed that after the execution and delivery of it the assignee might, after paying all claims and demands against the assigned estate which, as assignee, he was liable to pay, and after deducting two hun- dred dollars for his fees, reassign to Horsfall, the assignor, the property, of whatever nature or description, which might be in his possession under the assignment. This is very clear from the instrument— that he was to do this before he had the right to apply to a judge of the court to be released and discharged from his ^rust. The composition creditors h^d agreed to release and dis- charge the assignor from all liability upon the payment by him THE AMERICAN INSOLVENCY REPOETS. 159 In- re Assignmeixt of Horufall, of twenty-five per cent, of the amount of their respective claims, and the reassignment of the assigned estate to Mm by the assignee, as provided for in the instrument, was clearly necessary to enable the assignor to carry out the composition ; for it is to be assumed, as this was a general assignment of all the debtor's property for the benefit of creditors, that he had nothing to enable him to pay the compounding -creditors until the property was restored to him by a reassignment ; and this is sworn to have been the fact by the assignor and by Brigga, who was one of the principal creditors. But the ex parte order discharging the assignee was made with the consent of the assignor before a reassignment of the property ; and was for that reason alone irregular. This was not a provision which the assignor could waive, except so far as his rights were concerned. The composition creditors had rights also. It was for their interest that the assignor should be enabled, as speedily as possi- ble, to carry out the composition, as the payments were to be made in about a month after the execution of the composition deed ; and the assignor could not, without their consent, agree so as to bind them that the assignee might be discharged be- fore reassigning the property. The provision in the composi- tion deed ratifying and confirming all the acts, transactions, . payments, and proceedings of the assignee means when he had complied with the conditions of the deed by reassigning the property, and is in a position to procure his discharge in sthe mode provided by the statute. From the facts disclosed, an accounting in this case was necessary, as the assignee, if he has done what is alleged, has impaired the estate and lessened the ability of the assignor to comply with the terms of the compo- sition. The opinions delivered by Judges "Van Hoesen and J. F. Daly, in the assignment cases of Oottlon, Yeager, Doyer, Xowenthal, and by Judge Van Hoesen in the application of Horsfall & Briggs, in the present case, show how essential and indispensable it is that there should be an accounting in evefj case, and that it cannot be dispensed with unless there has been a clear, distinct ; and undoubted waiver of it by every creditor 160 THE AMERICAN INSOLVENCY REPORTS. Whitoomb et al. v. Fowle et al. who could in any way be affected by the assignee's discharge, which was not the case here. I do not think that it affects the question whether the peti- tion may liave been tendered the amoniit of the compositiotf or not if the discharge was irregular. He was not, as Briggs was, concluded by any agreement on his part to waive an ac- counting, and had the right to bring the matter before the court, it being the duty of the court to see that the rights of all the creditors are protected before discliarging the assignee. The order therefore should be affirmed. Judge Yan Brunt, who wiites a dissenting opinion, holds that as Camp has released every claim he has against the as- signed estate, and has formally released, by an instrument under seal, the assignor from each and every claim he has against him, cannot be heard in this matter. Judge J. F. Daly, who concurs with the chief justice, says the interest of Camp is that he is to be bound by such unau- thorized decree, and ho is not bai-red from claiming that the judgment cutting him off is not authorized by law. N. Y. COMMON PLEAS I Special Term. — Decided FEBRtTABT, 1879. A general assignment by a limited odpartnership oannot give a preference to the special partner for the amount of his investment. As between the parties to an assignment it is binding and revokable at their pleasure, but suoh revocation cannot in any way prejudice or impair the rights of creditors. A creditor, although he has not obtained judgment, may file a bill in equity to restrain insolvent partners from disposing of the property contrary to law, and for the appointment of a receiver. JOSHUA M. WHITOOMB et al. against JOSIAE F. fOWLEetal. Prior to January 2, 1879, a limited copartnership existed under the firm name of " J. F. Fowle," of which the defendant Josiah F. Fowle was the general and the defendant Wm. A. THE AMERICAN INSOLVENCY REPORTS. 161 Whitcomb et al. v. Powle et al. Brown, Jr., was the special partner. On the day last men- tioned the said firm made an assignment for the benefit of its creditors to the defendant John H. Folk, in which the amount due the special partner was made a preferred claim. This ac- tion was then commenced in behalf of the plaintiff and other creditors who might come in and contribute to the expense thereof, to have the assignment declared null and void ; that a receiver of the copartnership property be appointed, and that an injunction issue restraining any disposition of such prop- erty. An order to show cause as to the appointment of a re- ceiver and the granting of an injunction was made January 7, 1879, returnable January 8, 1879, the hearing of which was on that day adjourned to January 13, 1879, with the directiau that no disposition of the property by sale was to be made by Folk, the assignee. On January 7, 1879,Fowle (as appears by his affidavit) was served with the summons and complaint and the order to show cause in this action. On January 9, 1879, with the consent of Brown, Folk reassigned the copartnership property, and on the same day the said firm, with Brown's f.onsent, made a new assignment to Folk for the benefit of its creditors generally, and without preference. Folk, as such assignee, subsequently filed the schedule required by law and executed a bond which was duly approved. Folk then opposed this motion to appoint a receiver, and for an injunction. Laeremoke, J. — If this were an action in the nature of a creditor's bill, the plaintiffs would have no status in court with- out alleging the recovery of a final judgment and execution issued and returned thereon. {Geery v. Geery, 63 N. Y., 252, and cases there cited.) But I do not understand that the doctrine laid down in Innea V. Lansing (7 Faige, 583) has been disturbed or disputed. That case holds that when a lijnited partnership becomes in- solvent, its assets are a special fund for the payment of its debts ratably (except those due to the special partner), and VOL. I. — 11 162 THE AMERICAN INSOLYENCT REPORTS. In re Asdgmuent of Leahy. any creditor, although he have not proceeded to judgment and execution at law, may file a bill in equity to restrain the insolv- ent partners from disposing of the property contrary to law, and for the appointment of a receiver. This practice was re- viewed and approved in Van Alstyne v. CooJe (25 N". Y., 489). If the plaintiffs have asked for more or greater relief than the court can afford them on a final judgment, that is no reason why the court on a mere motion should try issues upon the determination of which they may be entitled to some relief. If as general creditors they cannot (as contended) contest the validity of the assignment, yet as general creditoi-s they may have the right to prevent a dissipation of the copartnership assets. The authorities cited by the counsel for the defendants {Hone V. Woolsey, 2 Edw. Ch., 289 ; Mills v. Arghal, 6 Paige, 577; Metcalf v. Van Brunt, 37 Barb., 621) establish the theory -that as between the parties to it the assignment is bind- ing and revokable at their pleasure. But no case goes to the extent of holding that such a revocation could in any way pre- judice or impair the rights of creditors. In ,the case under consideration the creditors had commenced proceedings to. pro- tect their rights upon a statement of facts which should not be decided on aflidavits. Consideiing the hopeless insolvency of the firm, that its in- debtedness to its special partner would almost, if not entii-ely exhaust its assets, the peculiar relations of the assignee and the special partner, and also the entire merits of the application to remove the receiver and vacate the injunction, I think it should be denied. N. T. COMMON PLEAS. Spboial Tebm— October, 1878. When an aBsignment becomes void because no inventory is filed witbin thirty days after the execution of the assignment, as required by the statute of 1877, no trust based upon the assignment as a valid instrument can be enfoioed. THE AMERICAN INSOLVENCY REPORTS. 163 In re Assignment of Leahy. In sach case the assignee cannot be called upon ta account under the statute for property which came into his hands. An accounting may be had in a suit in equity. A petition for the removal of an assignee in such case denied. In re Assignment of LEAHT to STOTESBUBY. Petition for removal of assignee and an accounting, pre- sented by the creditors of the assignor. J. F. Daly, J. — The General A.ssignnient Act of 1877 (sec- tion 3, subd. 5) provides and declares that in case an inventory shall not be made and filed within thirty days by the debtor or the assignee, the assignment shall be void. This express en- actment cannot be disregarded nor limited. An assignment declared void is as if it had never been. There are no longer assignors or assignees. If the person named as assignee have property which he received under the void instrument, he has no title to it ; it may be seized on process against the assignors, and its proceeds in the " assignee's " hands may be reached by appropriate actions by any creditor. But no trust based upon the assignment as a valid instrument can be enforced, because the assignment does not exist. Proceedings under the General Assignment Acts of 1877 and 1878, affirm the existence of an assignment, and if there be no assignment the proceedings can- not be maintained. Such is the position of the parties ijefore me. The assign- ment of James Leahy to Henry H. Stotesbury, was dated and made on December 11, 1877, pursuant to the statute first cited. The , assignee accepted the trust pursuant to the first section of the statute. But no inventory or schedule was ever filed by the debtor, or by the assignee, pursuant to the third section of the act. It followed that after thirty days, or on January 11, 1878, the assignment v^as void. This left the title of all the property in the assignor. Pie sold it afterwards by a regular bill of sale to the assignee, who secured or paid to the creditors of the assignor a composition of thirty per cent. The petition- ing creditors did, not as they claim, join in the agreement for thirty per cent., and now claim the right to call the assignee to 164 THE AMERICAN INSOLVENOT EBPORTS. Mumper, Administratrix, etc., v. Rushmore, Sheriff, etc. account. This cannot be done under the general assignment acts as before stated. If Stotesbury be a trustee for the cred- itors, under the assignment by which he took the estate, an ac- counting may be had by suit in equity. > It is claimed by tlfe petitioners that the effect of the act of 1877 is to make the assignment void as to creditors, but to leave it valid as between the parties to it. No such limitation is to be found in the statute. Where such an effect is in- tended, as in the Statute of Frauds, appropriate language is used to express the intention. In this case the enactment is general and absolute. The statute of 1878 (General Assignment Act amended) does not help the case, as the assignment became void before the latter statute M'as passed. Petition denied.* SUPREME COURT— NEW YORK. General Tekm — Second Department. September Term, 1878. A general assignment for the benefit o| creditors passes any interest whioh the assignor had in goods, although 'not in his possession or under his con- trol. A delivery of the property to the assignee is not essential to the validity of a general assignment. * Where the sheriff has taken a debtor's goods under execution against him, and he subsequently makes a general assignment, it is valid, and will trans- fer the debtor's interest to the assignee therein, subject only to the lien of the exeontion. MARY A. MUMPER, Administratrix, c&c, v. BENJA- MIN F. RUSHMORE, Sheriff, c&o. Appeal from a judgment in favor of defendant entered upon the dismissal of the complaint at circuit. P. S. Orooke, sor the applts. John J. Armstrong^ for the respt. ^ * See matter of Parnam, ante, p. 127, as to the effect of the amendment of 1878, in subsequent assignments. THE AMERICAN INSOLVENCY EEPOBTS. 165 Mumper, Admimistratiix, etc., t. Bushmore, Sheiiff, eto. GiLBEKT, J. — The nonsuit in this case was clearly right. Before the plaintiff's attachment was issued, the debtor in the attachment had made an assignment of all his property to an assignee upon trust to pay his debts. When this assignment was made, the property ^signed was In the custody of the sheriff, under a levy under an execution in favor of ianother creditor, whioli had been issued prior to the assignment. The sheriff testified that he levied only upon goods sufficient to satisfy the execution, but we think his acts amounted to a levy upon all the goods. The assignment, therefore, transferred the interest of the assignor in the goods, subject only to the lien of the execution which was first issued, and it was effectual for that purpose. In such a case the actual change of the possession of the assigned property is not necessary. The deed transfers the title as between the parties to it, and the non-change of posses- sion does not render the assignment void, as to the creditors of the assignor, for the reason that by the common law, and the statute in affirmance thereof, it is the retention of possession by the assignor, and not merely the non-delivery to the assignor that is made the evidence of fraud in the transaction. If the assignment be of an interest in goods not in the- possession of the assignor or under his control, an actual delivery thereof is not required. (2 R. S., 136, § 5, KUncJc v. Kelly, 63 Barb., 623 ; Ball V. Zeomis, 29 N. Y., 412.) The plaintiff has not the right to require the sheriff to en- force the attachment against the assigned property notwithstand- ing the assignment without indemnifying him. The judgraent must be affirmed >vith costs. Baenaed, p. J., concurred ; Dtkman, J., not sitting. ^ 166 THE AMERICAN INSOLVENCY EEPOBTS. The Converseville Company v. The Ohambersburg Woolen Company et ai. SUPREME COURT— NEW YORK. General Term. — Second Department. September Term, 1878. A consignment of goods by a consignor to a factor for sale for the account of the consignor upon a del credere or any other kind of commission, does not divest the consignor of the title to his goods, and the property in the proceeds follows that in the goods. Where consignees make a general assignment for the benefit of creditors, the consignors are entitled to all the goods and the proceeds thereof which come into the hands of the assignee. The title of the consignors are not divested by reason of the assignment, not- withstanding for an extra commission the consignees guaranteed the pay- ment of the price of the goods sold, ' The Supreme Court has concurrent jurisdiction with the County Court to compel assignees to account under the Statute of 1877. TRA^ CONVERSEVILLE 00 MP ANT, Appellants, v. THE OHAMBERSBURG WOOLEN COMPANY, GYRUS W. HOLMES, Jr., Justice J. ELLIS aird Others, Respondents, and JOHN L. HILL, Assignee, c&c, Appellant. Appeal from an order made on an accounting under the General Assignment Act of 1877. Sidney S. Harris, for the appellant. Asa A. Spier, for the respondents Holmes and Ellis. Gilbert, J. — The principle asserted from the order ap- pealed from, as I understand it, is that the parties in this action who consigned goods to Thomas & Co. to sell upon a del credere commission are respectively entitled to the pro- ceeds of the goods so consigned which are in the hands of Mr. Hill, the assignee of Thomas & Oo. That principle I thinii is unquestionably correct; Mr. Hill holds the fund in contro- versy as the assignee of Tliomas & Oo., by virtue of a general assignment made by the latter for the benefit of their creditors. The fund is the result of collections made by Mr. Hill, as such assignee of debts due from the purchasers of the goods so con- THE AMERICAN INSOLVENCY EEPOETS. 167 The Converseville Company v. The Chambersburg Woolen Company et al. signed, aad the portion of the moneys so collected which was paid on account of the goods consigned to Thomas & Co., by each assignor, can be readily and certainly ascertained. The parties who consigned the goods respectively are entitled to the proceeds of the sales of the same goods. Thomas & Co. are merely the factors of their principals, the consignors of the goods. The relation of principal and agent existed between them for advances which were made by Thomas & Co. to the consignors, the former had a lien only, nor did the fact that, for an extra commission, they guaranteed the payment of the price for which the goods were sold, in any manner alter the title of the goods or to the proceeds thereof. Tlie general property in the goods always remained in the consignors, and the proceeds of the sales thereof, so long as they can be traced or identified, also belong to them. Unsold goods and the proceeds of sales were however subject to the lien of the factor, for advances and commissions (See Hare & Wallace, Am. Lea. Co., 802), where this subject is discussed and the authorities are collated {Francklyn v. Spragtte'^ 10 Hun., 589.) It is not necessary to discuss the question whether the fiduciary character of an agent attached to Thomas & Co. I think it did. But the question here is whether the goods mentioned were their prop- erty or the property of the consignors. It seems to me to be too plain for argument, that a simple consignment of goods by a consignor to a factor for sale for the account of the consignor upon a del eredere or any other kind of commission, cannot operate to divest the consignor of the title of his goods. On the contrary, while the goods are in the possession of the factor, he is the bailee of his principal, and the consignor may revoke the authority of the factor at any time and reclaim the goods consigned to him which remain unsold, upon payment of the factor's unpaid advances and commissions. The primary en- gagement and duty of the factor is to sell the goods and render an account. The factor's contract of guaranty is a cumulative security to his principal, and I cannot see that it works any other change in the legal relations between them. 168 THE AMERICAN INSOLVENCY REPORTS. The Oonverseville Goropany v. The Chambersburg Woolen Company at al. Without pursuing the subject further, the position of the general creditors of Tlioraas & Co. on tliis point ought not to be sustained. Tlie property in the proceeds follows that in the goods. The assignee stands in the shoes of his assignor, and certainly is entitled to no greater or different interest in such proceeds. It is claimed, on behalf of the plaintiffs, that Thomas & Co. from time to time unlawfully appropriated moneys which were the proceeds of the plaintiff's goods, in making advances to other consignors of goods to Thomas & Co., and that the plaintiff's are entitled to have such moneys refunded out of moneys belonging to said other consignors in the hands of the assignee. I do not perceive how that claim can be sustained. The plaintiffs may have an action for money had and received against persons who receive from Thomas & Co. moneys which belonged to them, but no facts have been stated which would warrant the court in declaring that a lien on the goods of such persons or on the proceeds thereof, exists in favor of the plain- tiffs. The plaintiffs must first establish their debts against such persons respectively, and then exhaust their legal reme- dies for the recovery of them. After that has been done they may acquire such a liea. The power granted by the Statute to the County Court to order assignees to account and to make distribution among creditors, is not exclusive, but concurrent only. If the legislature were competent to take away any part of the general jurisdiction of the Supreme Court, they have not attempted to do so in this instance. The order should be affirmed without costs. Dykman, J., concurred in the result.. Present, Baenakd P.J., Gilbert and Dtkman, J.J. THE AMERICAN INSOLVENCY REPORTS. 169 Wilson V. Berg. SUPREME COURT— PENNSYLVANIA. Decided January, 1879. An assignment for the benefit of creditors can be impeached only for fraud in the assignment, or at the time of making it, so as to have attached to the instrument or aSectsd its operation. The acts and declarations of the assignor are evidence to impeach it only in so far as they prove he has unduly controlled or changed the legal effect of the assignment. An assignment may be fraudulent although all the forms of law are complied with, but if it be made in the form or manner provided by law, and duly recorded so as to pass all the property of the assignor, the motive exists ing in his mind cannot afieot its validity, the fraud that is forbidden arises from acts done contrary to law or equity. wiLsosr V. jsEjRG. Eekoe to tlie Court of Common Pleas of Butler County. David Kelley, who had for over thirty years carried on the business of merchandising and farming in Buffalo township, Butler County, Pa., on December 7, 1875, sold a farm to David Henry and JAcob Fry for thirteen thousand dollars. Of this sum two thousand dollars was credited as payment of a debt due the purchasers. The balance, eleven thousand dollars, was paid in the following manner : Guffy and others had given a mortgage to Fry upon which a judgment had been entered for eleven thousand dollars. In some unexplained manner,. David Henry had obtained an interest in the judgment, and pursuant to an agreement between them and Kelley, Fry, by Kelley's directions, assigned the judgment to Alexander Mit- chell. On December 13th and 14th, and subsequently, judg- ments were entered against Kelley to the amount of about fifty thousand dollars. On December 14th Kelley made a general assignment of all his effects to AUeli Wilson, for the benefit of his creditors. John Berg & Co., a judgment creditor, treating the assignment to Wilson as void, issued execution, and levied upon Kelley's personal property. A rule was granted on Kelley and his assignee to interplead, and an issue directed, in which Berg & Co. were plaintiff and Allen Wilson, assignee,, defendant, in which the plaintiff alleged that the assignment was void, as being made to hinder, delay, and defraud creditors. TOL. I. — 12 170 THE AMERICAN INSOLVENCY REPORTS. Wilson V. Berg. On trial it appeared that the property sold constituted the . greater part of Kelley's assets ; that no consideration passed from Mitchell to Kelley ; that a declaration was made by Mitchell some time afterwards on the docket, of a trust for the First National Bank of Bntler, of which he was cashier, and to which Kelley was indebted to a large amount. Mitchell was not shown to have been present when the judgment was assigned to hitn, and it was not shown that the declaration was executed in pursuance of a previous agreement. Verdict and judgment for the plaintiff. ■ The opinion sufficiently indicates the errors assigned, and whether sustained or otherwise. MoGandles (& Greer, Esqs., for plaintiff in error. Lewis Z. Mitchell, Esq., for defendants in error. Opinion by Meeoue, J. — Filed January 6th, 1879. This was an issue to try the validity of an assignment made by David Kelley to the plaintiff in erro)-. The defendant alleged it was made fraudulently, with intent to hinder, delay, and defraud the creditors of the assignor. The assignment was general, and for the benefit of all his creditors. It was regularly executed and acknowledged, and luly recorded on the same day. The entire good faith of the Avssignee is conceded. The effort is to impeach it by evidence .)f the acts and declarations of the assignor. His acts and declarations are undoubtedly evidence in so far as they prove ,he has unduly controlled, or changed the legal effect of the rassignmei't. JBeyond that they are not evidence. The statu- tory intent given to the assignment is to pass to the assignee ;all the property, of every kind, which the assignor owned at the