plaintiff maintain an action against the owners in his own name. Parkhurst v. Dickerson, xxi. 307.

3. The lay or share in the profits of the voyage, which a seaman in a whaling-ship receives according to a custom, in lieu of wages, is assignable before the commencement of the voyage. Gardner v. Hoeg, xviii. 168.

4. Such seaman, by deed, purporting to be for the consideration of $800, assigned his lay before commencement of the voyage. The assignee paid him no money at the time, but agreed to advance money for his use before and during the voyage, which he accordingly did, and upon the assignor's return rendered an account, crediting $ 800 for his lay, with which account the seaman was satisfied. Held, the transaction was valid as against a creditor of the seaman, though no notice of the assignment was given to the ship-owners till the voyage was ended, and just before such creditor attached the lay in their hands. — Ibid.

5. The master and two seamen of a fishing vessel, being the owners of a fare of fish taken during a voyage, placed the same in the hands of L., he agreeing in writing to cure and sell the fish, and account to them for the proceeds. While in his possession, it was attached upon a suit brought by H. against the master, for supplies furnished for the voyage, and was delivered by the officer to L., as his bailee, who sold it without consent of the master and before judgment, and paid over the proceeds to the officer. After the attachment, the master and the two seamen assigned their interest in the property to B., authorizing him to demand and receive it in their names, but for his own benefit. B. brings an action in the name of the seamen, the master having died, against L. upon the written contract. Held, if the attachment were valid, the property passed to B. by the assignment, two thirds of it absolutely, and the master's third subject to the attachment; that the attachment was dissolved by the sale, and the assignment then took full effect as to such third; and that the master's ratification of the sale after the assignment, and the order of the plaintiffs to discontinue the suit brought by B., were of no effect. Eldridge v. Lancy, xvii. 352.

6. A. drew an order, requesting B. to pay money to C., not exceeding a certain amount, out of any funds of A. which might come into his hands, after deducting all that might be due him from A. Before B. received the funds, a commission of insolvency, under St. 1838, c. 163, issued against A., and B., after receiving them, insisted that he was bound to pay the balance, which was due to A., to his assignee. In a suit by C. against B. upon his acceptance, held, the order was primâ facie an assignment of the fund, and, in the absence of evidence of want of con

sideration, or other fraud, C. was entitled to recover. Cabot, 3 Met. 305.

Bourne v.

7. Mortgage of goods to secure payment of money lent, without any other security. The mortgagee, by a writing on the mortgage, assigned all his interest in the instrument, and every thing therein contained, and authorized the assignee to take all legal measures for recovering to his own use and enjoyment all the assigned premises. Held, an assignment of the debt; and that there was no implied warranty of title to the goods. Jones v. Huggeford, 3 Met. 515.

8. A letter of attorney from A. to B., to receive all the money due from C. to A., and give a discharge therefor in A.'s name, adding that it is "an assignment of the same," though not in terms irrevocable, or authorizing B. to receive the money to his own use, is still an assignment of the debt to B. Weed v. Jewett, 2 Met. 608.

9. Fraud, used by an obligee in procuring a bond, is a good defence to an action thereupon in his name, brought for the use of an assignee. Otherwise, where the obligor assented to the assignment, and, though knowing the fraud at that time, did not make it known to the assignee. Holbrook v. Burt, xxii. 546.

B. Assignment for benefit of creditors.

1. Where a common assignment in trust for benefit of creditors empowers the assignee to sell the goods in such manner as he may consider expedient, and most for the interest of all parties, he may sell on credit. Neally v. Ambrose, xxi. 185.

2. Where an assignment for benefit of creditors purports to be made by and between the debtor, the trustees, and such creditors as shall sign it within a certain time; a creditor, who signs it after such period has elapsed, is no party to it, nor is his claim barred by the clause of release. Battles v. Fobes, xxi. 239.

3. Assignment, containing the usual release, in trust for such creditors as should execute it within sixty days. Held, a creditor, who executed it after this period, though in fulfilment of an agreement to do so, made within sixty days, was not a party, and did not release his claim. - Battles v. Fobes, 2 Met. 93. Dedham, &c. v. Richards, Ibid. 105.

4. Assignment by A., in trust to sell, and apply the proceeds to the payment of a part of his debts, which was much less than the amount of the property, and to pay over the surplus to him.

The assignees sold to B., the plaintiff, acknowledging payment by an obligation to furnish indorsed notes; after which, the property was attached as A.'s. B. brings replevin against the officer. The jury were instructed, that though a large property was assigned to secure a small amount of debts, showing an inadequacy of consideration which would ordinarily be a strong badge of fraud; still, if there were bonâ fide debts to be secured, and the provision for selling was a fair one, and the assignment was intended to place the full value of the property in the assignee's hands, and, after satisfying the preferred claims, within the reach of other creditors, by the trustee process, and was in other respects bonâ fide; then the assignees took to themselves and passed to B. a valid title to the property; it was immaterial whether B. paid for it in cash or negotiable securities, or not; and the officer was not entitled to a return of any part of it. Held, these instructions

were correct.

George v. Kimball, xxiii. 234.

5. A firm, consisting of W., B., S., & S., doing business in one town under the name of W., S. & Co., and in another, as B. & Co., made three notes in the former name to the plaintiff's intestate. The former partnership was dissolved, and B., S., & S. formed a new firm, doing business in both places as B. & Co., and became indebted to the intestate in the sum of $100.78. Soon after, the new firm assigned their property in trust, for payment of their debts, and the schedule of creditors and sums due, annexed to the assignment, contained the name of the intestate, with the sum of $100 set against it. By the indenture, the creditors release unto the said B., S. & S., and each of them, the several debts and sums of money written opposite to their respective names, in the schedules hereto annexed." Held, the release, by its terms, so far as it applied to the intestate, affected only the sum set against his name; and that parol evidence to extend it to the notes was inadmissible. Rice v. Woods, xxi. 30.

6. A. and B., merchants in Boston, agreed to buy jointly a Spanish ship, and gave to the vendor their several notes, each for the price of his moiety. The ship was delivered to B., subject to his orders, with a power of attorney from the Spanish owner to sell her, A. & B. intending that she should still remain a Span.ish vessel. B., as ship's husband, repaired and fitted her out, charging his disbursements in an account with the ship, and consigned her to C., a merchant in Havanna, with authority to use and sell her, informing him how she was owned, and ordering him to keep separate accounts with A. and B. C. employed the ship, received her earnings, paid her disbursements, sold her, and received the proceeds. Before he rendered an account, A. failed and made an assignment, with the usual release of all demands, to which B. became a party. Soon afterwards, B. failed in like man

ner, and A.'s assignees became parties to his assignment, A. & B. having mutual dealings, disconnected with the ship. A.'s assignees bring an action in his name against C. for A.'s share in the ship. Held, neither A. nor B. took any legal title in the vessel, but only an equitable interest, secured by the power of attorney; that A.'s assignees, therefore, took only a chose in action in A.'s share of the ship, her earnings and proceeds, and the action was rightly brought in A.'s name, without joining B.; that the release in B.'s assignment did not affect the interest of A. or his assignees in the ship and her earnings; and that the advances made by B., as ship's husband, did not give him a lien on A.'s share, nor authorize C. to retain it as a set-off against a debt from B. to C..- Brigham v. Clark, xx. 43.

7. A.'s assignees made a demand upon C., when he chanced to be in Boston, for an account of A.'s share in the earnings, &c., but C. denied his liability to account with them or with A. No demand was made at Havanna. Held, by such denial, C. waived his right to the latter demand. - Ibid.

8. A. the respondent in a trustee process, disclosed as follows. B., the principal defendant, made a general assignment to A., in trust for such creditors as should sign the instrument; which was signed by A., B., and a few preferred creditors. Afterwards these creditors, with others, including C., the plaintiff, who had summoned A. as trustee, gave the defendant a letter of license, by which they agreed to accept the principal of their claims in full satisfaction, on condition of its being paid in ten equal semiannual instalments, and that the attaching creditors might continue their actions in court till a failure to pay such instalments. B. then expected and stated, that by having the use of certain machinery and tools, included in the assignment, he could pay all his debts; under which expectation, A. allowed him to retain and use them, reserving the right to sell them, if necessary. Having paid half the instalments, B. became unable to pay the rest, whereupon A. proceeded to sell the property for payment of debts. Prior to the default in payment of the instalments, none of the creditors had requested A. to hasten the sale, and he believed that they assented to the postponement of it. A. sold part of the property on credit, taking a negotiable note payable to a bank, signed by A. as surety of the purchaser, and discounted by the bank. Held, such note was prima facie a payment of the price, that its being signed by A. made no difference, and therefore he should account for such price. Scott v. Ray, xviii. 360.

9. Held, the permission given to A. to possess and use a part of the property did not avoid the assignment for fraud. - Ibid.

10. Held, as it was no part of the trust, for A. to let or use for profit the machinery and tools, as he had received nothing by way

of rent or use, and been exempted from all charge of negligence in delaying to sell, by the license to which the plaintiff was a party; he should not be charged with such rent, hire or use. Ibid.

11. Held, in stating the demands, to be allowed as a charge on the funds, A. might cast interest on his own claim, and others, belonging to creditors who had signed the assignment, up to the time of selling and receiving the proceeds of the property. — Ibid.

12. A. having a demand due him personally, and one due to him as assignee, against the same person, and having obtained satisfaction of the former; held, he should apply the sum received to both claims pari passu, being bound to take as good care of the trust property as of his own. Ibid.

13. A. having answered that he had funds in his hands, and had paid a co-assignee a certain sum for his services, which he thought had not been repaid by B.; held, he was chargeable for this sum, the burden being on him to show that it had not been repaid. Ibid.

14. An assignment by an insolvent debtor gave preference to certain debts, the amount of which, due to creditors who had become parties, exceeded the value of the property. The assignment required of creditors, who should execute it, a release in full, without regard to the amount of the dividend; and was so expressed, as to leave it doubtful, whether more than a life estate in the real property passed by it. Held, an unpreferred creditor, not a party, could not object to the validity of the assignment, on either of these two grounds. Nostrand v. Atwood, xix. 281.

15. Where an assigument was made by an insolvent debtor to a creditor, in trust for his benefit, and that of other creditors who should sign the instrument within a certain time, and the assignee accepted the trust, and a part of the creditors became parties to the assignment; held, such creditors could not annul the assignment, and attach the property before the end of the time mentioned, without consent of the other creditors, though the debtor had withheld the evidence of debts due to him, refused to deliver to the assignee, and fraudulently wasted, a part of the property; that the assignee was bound to allow all the creditors to become parties within the time, and a creditor, to whom he had refused such liberty, might enforce the trust or recover an equitable compensation; and that the assignee must account, not only for the property received by him, but such as he might by due diligence have recovered from the debtor.-Pingree v. Comstock, xviii. 46.

16. In case of an assignment, in trust for creditors who shall become parties and release their claims; any dividend, received by a creditor, must be applied rateably to debts which are, and