5. Two sheets of paper, one folded within the other, were taken by a scrivener, and an assignment under the above statute written and executed on the first pages of the first sheet. Immediately afterwards, a magistrate wrote and signed, on a page of the second sheet, a certificate that the assignor "within named " made oath, that he had "thereby conveyed all his property not exempted by law from attachment, for the benefit of all his creditors, according to the true intent and meaning of the statute in such case made and provided." Both sheets were delivered to the assignees and kept together. A schedule of the property was soon afterwards attached, and the whole were then stitched together. Held, the certificate was "indorsed on the instrument of assignment," as required by the act. - Ibid.

6. In case of an assignment under the St. of 1836, though the fact of the debtor's having previously preferred particular creditors may prevent his discharge, and though such creditors may lose their security, the assignment will still be valid. - Fairbanks v. Haynes, xxiii. 323.

7. This statute does not impair the right to secure one creditor at the expense of others, unless it is done by, or in connexion with, a conveyance to assignees in trust for any creditors. Henshaw v. Sumner, xxiii. 446.

8. An insolvent debtor sold, assigned, and conveyed, certain goods to some of his creditors, habendum in proportion to their several demands against and liabilities for him, provided that, if he pay them what he owes them severally, and indemnify them respectively against their liabilities for him, then the bill of sale to be void. The assignees to have the right of immediately selling, on such terms as they might think judicious, and to apply and distribute the net proceeds, to pay them their several demands against, and hold them harmless from, their respective liabilities for, the debtor, and any surplus property or proceeds to belong to the debtor or his assigns. The same day, the debtor sells, assigns, and conveys to the plaintiffs the same goods, subject to the above conveyance, habendum to the plaintiffs in proportion to their several demands against and liabilities for him, provided, that if he shall pay them what he owes them severally, and indemnify them respectively against their liabilities for him, the bill of sale to be void; the plaintiffs to have the right of receiving from the prior assignees the same goods or their proceeds, or so much of either as shall remain, after the demands of the first assignees against, and liabilities for, the debtor are paid and discharged, and the same to convert into money, and apply the net proceeds to their demands and liabilities, and pay the surplus, if any, to the debtor. Held, these transfers were not conveyances in trust for creditors, nor therefore void, by the St. of 1836, as against attaching creditors. Ibid.

9. Held, as they sufficiently pointed out the proper source of information with regard to incumbrances upon the property, they were not void for uncertainty in describing the claims and liabilities which they were intended to embrace. Ibid.

10. St. 1836, c. 238, provides, that an assignment for the benefit of creditors shall give each creditor, who becomes a party, an equal share of the property in proportion to his respective debt, without any preference, excepting, &c., and that no assignment or conveyance from an insolvent debtor to assignees or trustees, for the use of any of his creditors, shall be effectual against an attachment or execution, in favor of a creditor not a party, unless made as above stated, and so as to allow all the creditors to become parties; and that a debtor, making such assignment, shall be discharged from all debts due to any of his creditors who become parties to it, but that, if sued for such debt, his discharge shall not avail him, if, in contemplation of such assignment, he voluntarily transferred or conveyed any part of his property, with a view to give any creditor a priority over others. Before the repeal of this statute, instructions were given at the same time by an insolvent debtor, for drawing a mortgage of a part of his property to secure certain claims in full, and a general assignment of all his property to the mortgagees, subject to such mortgage, for the benefit of all his creditors, agreeably to the statute. The mortgage was executed by the debtor, and accepted by one of the mortgagees before execution of the assignment, but the assignment, which contained a release, was executed before the mortgage was accepted by the other mortgagees. Held, the two instruments were to be construed as one, and, as the mortgage gave a preference to certain creditors over others, both were invalid against an attachment. Perry v. Holden, xxii. 269.

11. An assignment of real estate under the above statute, if duly advertised in a newspaper, need not be recorded in the registry of deeds, to render it effectual against an attachment. Guilford v. Childs, xxii. 434.

12. Two insolvent debtors, partners, made an assignment, in which, in consideration of their being indebted, and "of their wish to apply the avails of their property fairly in discharging their debts, according to St. 1836, c. 238," they assign "all and singular the real estate, including a pew owned by one of them, the goods, chattels, rights, claims, debts, dues, and demands of every kind and description not exempted by law from attachment, however described and wherever situated, or from whomsoever due," in trust for the payment of their creditors who should become parties, without preference, pursuant to the statute; and it is stipulated, that "a schedule of said property, debts, &c., is to be prepared and made a part of this instrument when completed."

The debtors also made oath, that they have, "by the within assignment, conveyed all their property not exempted by law from attachment, for the benefit of all their creditors, according to the true intent and meaning of the statute; " but, simultaneously with the assignment, the owner of the pew made a deed of it to the assignees, for the purposes of the assignment. Before the assignment was executed by any creditors, creditor of the firm attached the property in the hands of the assignees, soon after which the schedule was annexed to the assignment. Held, the description of the property was sufficiently definite; that the annexing of the schedule was not a condition precedent to the operation of the conveyance; that a clause, authorizing the assignees to finish and prepare for market goods in process of manufacture, was not inconsistent with the statute, and did not avoid the assignment; that the assignment and the oath, by their terms, embraced all the individual as well as partnership property; that, if the oath were false, though the debtors might thereby be deprived of their discharge, the assignees would still hold the property for the purposes of the trust; that a note made by the assignors to the assignees in fraud of creditors would not defeat the assignment, but the creditors might claim to have the trust fund administered according to the statute, leaving the objections to the note to be made, in connexion with the distribution of the funds among the creditors; and that the supposed trustees must be discharged. Woodward v. Marshall, xxii. 468.

13. An assignment, under St. 1836, c. 238, is not avoided, by giving a preference to particular creditors immediately before its execution, though such creditors are made the assignees. Macomber v. Wecks, 3 Met. 512.

14. Property illegally transferred, for the purpose of giving a preference, by a debtor who afterwards makes an assignment under St. 1836, c. 238, falls into the general fund assigned for the creditors generally. Hence, the preferred creditor cannot be charged as trustee of the assignor, in a process of foreign attachment. Ibid.

15. By an assignment under the insolvent law of 1838, c. 163, § 5, a right of action for threefold the interest paid by the debtor, upon a usurious contract, passes to the assignee, who may maintain a bill in equity therefor. Gray v. Bennett, 3 Met. 522.

16. In a suit prosecuted by the assignee of an insolvent debtor, under the St. of 1838, c. 163, for any debt, right, &c., due or belonging to the latter, the assignment is conclusive evidence of the plaintiff's authority to sue, though the prior proceedings were defective and erroneous. - Partridge v. Hannum, 2 Met. 569.

17. Where, under this statute, a judge of probate issues his

warrant to a messenger to take possession of the debtor's property, and the debtor afterwards disobeys an order or decree of the judge, made in the case; in order to obtain a mandamus to such judge, that he cause the debtor to be arrested and imprisoned under § 23 of the statute, the petition must allege, and at the hearing it must be proved or admitted, that the facts required by § 19 to be set forth in the creditor's original application appeared to the judge to be true. - Kimball v. Morris, 2 Met. 573.

18. Section 19th of the above act provides, that the judge of probate, upon a creditor's petition, may order a messenger to take possession of the estate of one, who does not dissolve an attachment of his goods or estate. Held, this provision applies to an attachment by the trustee process, and that a default of the supposed trustee is, at least, primâ facie evidence of an attachment of goods or estate in his hands. Ibid.

19. A judge of probate is not bound to give notice of the petition to the debtor, before issuing his warrant. - Ibid.

20. The judge may issue his warrant to arrest, &c., for noncompliance with an order to appear at the third meeting of creditors, produce a schedule of debts, and submit to an examination on oath. And, it seems, such examination may be demanded at any time before a discharge. — Ibid.

21. After a mortgage of goods by a debtor, he made an assignment under St. 1838, c. 163. The mortgage was recorded after the assignment, but before publication of notice. Held, this act vested in the assignee only such property as the debtor, at the time of the first publication of the notice of the issuing of the warrant against him, could have sold, &c., or such as might have been taken on execution against him; and, therefore, that the mortgagee was entitled to the property. - Briggs v. Parkman, 2 Met. 258.

22. Under St. 1838, c. 163, § 10, a payment or assignment by a debtor to one of his creditors is not void as to the others, unless made in contemplation of insolvency and a discharge under that act. Gorham v. Stearns, 1 Met. 366.

23. After an attachment of the property of a debtor upon several writs, and on the same day, not then intending to avail himself of the insolvent law, nor even knowing its existence, he assigned to another creditor choses in action to secure his claim, and also to indemnify him against certain liabilities. The next day, he made application for the benefit of the law, and his property was afterwards transferred to assignees. Held, the assignment to such creditor was not invalid, under § 10, of the above-named act. Ibid.

Assumpsit.

1. Where selectmen, without the authority of a town, apply for a jury to reduce damages, estimated by the county commissioners upon the laying out of a town way, and a warrant is thereupon issued to an officer, requiring him to summon a jury to hear and determine the matter of complaint, which service he performs; he may maintain an action against the selectmen for such service, and for his disbursements. Baker v. Thayer, 3 Met. 312.

2. A., having made a note and mortgage for $4500 to B., agreed to pay the debt in goods. C., the plaintiff, gave his note to B., as security for this agreement, himself taking for his own security an assignment of the note and mortgage. A. paid B. according to contract. C.'s note was given up, and the note and mortgage transferred by C. to D., the defendant (the mortgage being still considered as in force), as collateral security for $756, due him from A., and for his liability upon a note signed by A. to a bank, as principal, and D. and E. as sureties. Afterwards D. transferred the $4500 note and mortgage to the bank, as security for the note held by the bank. A. made a second mortgage to F. His equity of redemption was taken on execution, and sold to C., D. and G., who had jointly agreed to become owners of the land and remove the incumbrances. At the sale, the officer stated, that less than $2000 was due on F.'s mortgage. A. then conveyed his right to redeem the equity to C., D. and G., for $300, they agreeing to pay the bank; which they accordingly did, by their joint and several note. They afterwards paid this note, each one third of it, and C. and G. each paid one third of the sum of $756, due D. The bank then re-transferred the $4500 note and mortgage to D., who assigned two thirds of it to C. and G., in consideration of their payment to the bank and D. F. afterwards defeated this mortgage, on the ground that it had been paid; and his claim under his own mortgage proved to exceed the value of the land, instead of being less than $2000. C. brings assumpsit against D. for money had and received and money paid. Held, he could not recover one third of the $300 paid to A., nor one third of $2000, paid for the equity sold on execution; but that he might, on the ground of failure of consideration, recover one third of the sums paid to the bank and to D. Claflin v. Godfrey, xxi. 1.

3. The mate of a vessel lying at Mobile, finding two bales of cotton floating in the river, took them, put them on board the vessel, and brought them to Boston, where the ship-owners agreed with him to take the cotton, and, if they could not find the owner, to account with him for it. They soon afterwards sold the cotton.