those which are not, secured by the names of other parties or otherwise. Commercial, &c. v. Cunningham, xxiv. 270. - 17. A release, by a creditor who becomes party to an assignment, extinguishes notes made by the debtor; but does not discharge the maker of notes indorsed by him; even though made for his accommodation, unless the creditor had notice of it. —Ibid. 18. An assignment for benefit of creditors provided, that the assignees should first pay any deputy sheriff all claims or incumbrances upon any of the property, by virtue of an attachment. A deputy, having such a claim, became party to the assignment, but the action was not dropped. The attachment was afterwards dissolved by the death of the debtor and a commission of insolvency upon his estate. The attaching creditor summoned in the administrator and recovered judgment. The attaching creditor and the officer bring a bill in equity against the assignees. Held, the execution of the assignment by the officer enured to the benefit of the creditor; that the intention was, that his debt should be paid, and not merely the lien of the attachment removed; that by continuing his action he had not waived his claim under the assignment; and that he should recover the amount of his original demand, with so much of the costs as had accrued before the assignment. -Coverdale v. Wilder, xvii. 178. 19. Assignees for benefit of creditors, under an instrument containing a release of debts, do not stand in the position of bona fide purchasers of the property, with reference to any equitable claim upon it, unless it be proved that some new liability was incurred on the credit of the property, or that the creditors would not have become parties, had they known of such claim. Clark v. Flint, xxii. 231. 20. An assignment by an insolvent debtor of part of his property in trust for creditors, provided for the payment, first of certain sureties, also creditors, including the plaintiff, who was one of the assignees, in full, if the property should be sufficient, otherwise pro rata; and then of such other creditors as should become parties, in full or pro rata. The assignees covenanted to dispose of the property, and pay over the proceeds in manner aforesaid, within one year, and the creditors, becoming parties, agreed, upon being paid in manner aforesaid, to cancel and discharge their respective demands." Held, the execution of the assignment by the plaintiff, and his acceptance of the trust, operated as a full and immediate discharge and satisfaction of his claims, both as surety and as creditor; so that a subsequent conveyance to him by the debtor of other property, as further security for those creditors, was without consideration, and void against a creditor not a party to the assignment. - King v. Lyman, xviii. 376.. 21. An assignment by partners of their joint and several property, in trust for such of their joint and several creditors as shall become parties thereto, is valid as against an attaching joint-creditor, if the property does not exceed the amount of debts due to the joint-creditors, who had become parties before the attachment. Read v. Baylies, xviii. 497. 22. The assignment by a partner of his separate property, in trust for payment of the partnership debts, is valid as against a separate creditor of such partner. -Newman v. Bagley, xvi. 570. 23. An assignment was made to a creditor and signed by him, providing, that, from the proceeds of the property, he should pay the expenses, a compensation for his services, and certain debts of himself and others, in full, and divide the surplus rateably among creditors. The instrument was not drawn to be executed by creditors, as such, nor did it provide for a release. The funds being exhausted by the claims above enumerated; held, by signing the instrument, the assignee bound himself as such, and also as creditor, and the assignment must prevail over a subsequent attachment. Everett v. Walcott, xv. 94. 24. A., as factor of B., sold goods to C., who knew that he was B.'s factor, and took C.'s negotiable note, payable to his own order. C. assigned his property for benefit of creditors, the instrument containing a release. In a list of debts annexed to the assignment, the note was mentioned as due to A., together with a claim for lent money. A. signed the assignment, and then indorsed the note to B., who brings a suit upon it against C. Held, the note was released by A.'s signing the indenture, and parol evidence was not admissible of an intention to the contrary; and that, by suing as indorsee, B. affirmed the note, even though it were taken without authority, and the original consideration was thereby extinguished. -West Boylston, &c. v. Searle, xv. 225. 25. A debtor, who assigned his property for the benefit of creditors by an instrument of two parts, previously to such assignment, in order to prevent A., a creditor, from being shocked by the event, informed him of his purpose, and of the proposed terms of assignment, making him a preferred creditor, which were actually conformed to. After the assignment, B., another creditor, attaches the property. Held, there was no legal assent by A. to the assignment, and B. should hold by his attachment. - Fall River, &c. v. Croade, xv. 11. 26. In 1834, a debtor conveyed to assignees, in trust for his creditors generally, certain real estate, by special description, "and also all his goods, wares, and merchandise, moneys, debts, effects, and estate," and, simultaneously, by deed, to a particular creditor, for security, certain other real estate, specially described. Held, the latter estate passed by the deed, not by the assignment. Also, that, though the debts secured by such deed were afterwards discharged, yet a title to the property, acquired bonâ fide under the grantee, was valid, more especially against one who claimed under the same source of title. - Parker v. Barker, 2 Met. 423. 27. After the principal maker of a note had assigned his property to the holder for the benefit of his creditors, the latter brought an action upon the note against a surety, but, before the amount to be divided was ascertained, and pending the action, received a dividend. Held, the suit was not prematurely brought, nor barred by receiving the dividend; and the plaintiff had judgment for the amount of the note, deducting the sum thus received. -Lincoln v. Bassett, xxiii. 154. 28. An assignment by an insolvent debtor stated the sum named as a consideration, to have been paid "by bond and notes." The assignee in fact gave four notes, which, at the trial, were in the hands of the debtor, and a bond conditioned for payment of his debts. Held, the assignment was void against attaching creditors. Platt v. Brown, xvi. 553. 29. One creditor having summoned the assignee in the trustee process, another attached the property specifically. Held, the assignee could not retain the property for the purpose of responding to the former suit, because the goods would be charged thereby in the hands of the officer, as well as of the assignee. - Ibid. 30. An assignment by a debtor of his securities, to indemnify his assignees and others for their liabilities on his account, unless the instrument shows that the securities exceed in value the liabilities, is prima facie valid, against a subsequent attachment of the securities by the trustee process; and the burden is on the attaching creditor to impeach the assignment, if impeachable.— Newman v. Bagley, xvi. 570. 6 31. If an assignment for benefit of creditors refer for a description of the property to a schedule, which is not annexed at the time, but, by consent, is annexed the next day; even if the assignment would be void for uncertainty without the schedule, it is made good by the subsequent annexation; or such annexation amounts to a re-delivery, which is valid against any subsequent attachment. Clap v. Smith, xvi. 247. 32. It seems, the assignment, if invalid as a bill of sale, would be a good declaration of trust; and, a delivery under the trust being proved by parol evidence, this would pass the property. — Ibid. 33. The annexation of a schedule was held to be valid, though made and annexed on Sunday. - Ibid. 34. Assignment, for benefit of creditors, by two booksellers, partners, of "all their books, stock in trade, printing apparatus and machinery, books of account, book debts, notes, and demands, and all their other property of every name and nature, except such as is exempt from attachment, most of the same being now at their place of business, a schedule of which is annexed; and other and fuller schedules of the property hereby assigned shall be hereunto annexed, as soon as the same can be conveniently made." The schedule contained three items, namely; "stock of books in store, printing-presses and materials, notes and demands," &c. More than two months afterwards, a creditor of one of the parties attached his furniture, then in his possession; after which, the assignees inserted it in the schedule. Held, the words of the instrument, though per se broad enough to include the furniture, were restrained by the schedule; that the schedule did not originally include it, the "&c." applying only to things ejusdem generis; that parol evidence was inadmissible of an intention to include the furniture, and that the attachment was valid. Driscoll v. Fiske, xxi. 503. 35. An assignment in trust for creditors, whose names, with the amount of their claims, were inserted in a schedule, provided that the schedule might be corrected, and the true items and amounts afterwards inserted therein. A. being the first creditor who signed, his claim was stated in the schedule to be "about $4500.” After other creditors had signed, A. made and proved claims for $ 5867. Held, A. was entitled to a dividend on the latter sum. -Dedham, &c. v. Richards, 2 Met. 105. 36. An insolvent debtor in Connecticut assigned all his property, including certain land in Massachusetts, in trust for his creditors, pro rata, under the provisions of a statute of Connecticut. None of the creditors were parties to the assignment. The debtor at the same time conveyed the land to the assignee by a deed, referring to the assignment for an explanation of its objects, and duly executed and registered under the laws of Massachusetts. Held, as the title to real estate is wholly governed by the lex loci rei site, the assignment was void as to the land in question; that the second deed, being merely ancillary to the assignment, was also void for want of consideration; and that the land might legally be attached by creditors of the assignor. -Osborn v. Adams, xviii. 245. 37. A., a citizen of Maine, made an assignment, in that State, to creditors, of a debt due him from B., a citizen of Massachusetts; to which the creditors, having claims exceeding such debt, became parties. C., another citizen of Massachusetts, afterwards summoned B. as trustee of A. It had been previously decided in Maine, that an attachment in Maine, by a citizen of that State, should prevail over a similar prior assignment in Massachusetts. Held, B. was not chargeable as trustee of A.-Means v. Hapgood, xix. 105. 38. A citizen of Rhode Island, by a bipartite instrument, to which his creditors were not parties, conveyed all his property for their benefit. A creditor, also a citizen of that State, attached a part of the property here. By the laws of Rhode Island, the assignment would prevail over the attachment. Held, it should also have precedence here. Whipple v. Thayer, xvi. 25. Daniels v. Willard, xvi. 36. 39. Where, in case of an assignment for creditors, both the assignor and assignee, who alone have become parties, are citizens of Rhode Island, in which State, also, the instrument is executed; and the debt due the assignor from one citizen of Massachusetts, not needed for payment of the assignee's debt, is attached by another in the trustee process; the attachment shall prevail over the assignment. The Fall River, &c., v. Croade, xv. 11. 40. Where an insolvent debtor in New York makes an assignment, which, in that State, is valid against dissenting creditors, a New York creditor cannot attach property of the debtor in Massachusetts, although by our law the assignment would be void against dissenting creditors. Burlock v. Taylor, xvi. 335. C. Assignment under statutes of insolvency. 1. Where property is assigned, under St. 1836, c. 238, a creditor of the assignor cannot treat the assignment as void, and attach the property, on the ground that no creditor executed the assignment within a reasonable time, and before the attachment; nor because the assignor retains possession as agent of the assignee, and neglects or mismanages it. The remedy is against the assignee, under § 7 of the statute. — Shattuck v. Freeman, 1 Met. 10. 2. An assignment, made after St. 1836, c. 238, took effect, but not conformable thereto, is voidable, not void, as to creditors of the assignor. Hopkins v. Ray, 1 Met. 79. 3. If, by virtue of such assignment, the assignees sell the property, take notes therefor on time, and are summoned as trustees of the debtor before maturity of the notes; they will be discharged in the trustee process. Ibid. 4. An assignment under St. 1836, c. 238, may be valid, though immediately before its execution the debtor give a preference to one of his creditors. Brown v. Foster, 2 Met. 152. |