or in favor of just debts, to exclude debts in law not strictly ex debito justitiæ. But I do not think the practice should be encouraged. It is calculated to create confusion, uncertainty, and collision. I see nothing that will prevent the mischiefs of voluntary settlements and conveyances, but a general declaration that they are all void as against creditors." Rush, J., page 89, says, "until the expiration of nine months, no distribution is to be made nor any creditor paid, however vigilant he may be. If a creditor may, in this mode, or by a device of this sort, frustrate his creditors for months, where shall the line be drawn? Why not delay his suit for nine years as well as for nine months? His rights are the same in both cases. As there is no law of the land that authorizes a debtor to pass an act of limitation in his own favor, I hope this court will never do it for him." "In the case before the court, we have an instance of a man plunged into debt, covered with lawsuits, overwhelmed with judgments, and others impending over his head, suddenly and secretly, without the knowledge of a single creditor, conveying to trustees of his own nomination, au immense property on such terms and in such manner as he has chosen to prescribe. I can not conceive anything more dangerous than to sanction, by judicial determination, a deed of this description. It will be vesting the debtor with an unlimited power at all times over his property to baffle his creditors under the specious pretext of paying them. A decision of this sort is warranted by no adjudged case in the books."

The supreme court of the same state, in Lippincott v. Barker, 2 Binn. 182 [4 Am. Dec. 433], sustained an assignment conditioned that it should benefit only such creditors as should execute a release in four months. But Chief Justice Tilghman, page 182, says: "I beg, however, to be distinctly understood that my opinion is confined to the circumstances of the present case, for there are many and strong objections to deeds of assignment made without the privity of creditors, and excluding all who do not execute releases." Judge Breckenridge, page 190, in giving his opinion says: "It has been left to the astutia Americana of debtors to devise such a warehousing of effects out of the hands of the law for a time, for the benefit of particular creditors. I think it to the let and hindrance of creditors, and that such disposition is void both at common law and by statute; though not fraudulent in fact, in the particular case, yet fraudulent in law, and therefore void. It is not simply a surrender of his property as satisfaction pro

rata of his debts that the insolvent has in view. He couples an interest for himself in obtaining a discharge from that proportion of the respective debts which may remain unsatisfied. It is taking an undue advantage of the situation of the creditor to impose this condition. It is immoral to exact it. Valenti non fit injuria if the creditor accepts, but it is making a volunteer by compulsion, and is in fact a robbery. One enlightened on the principles of moral honesty would never think of it. He would give what he had to one or more, or to the whole of his creditors, but he would never think of annexing a condition precedent or subsequent to such surrender. Of such conditions a chancellor would not compel a fulfillment. I can think of nothing either morally honest or strictly legal but the indefinite, unconditional surrender of the property. Pass this boundary, and I can draw no line where an assignment shall be supported, and where not. Every case must be ad arbitrium judicis without principle to guide, and he must decide according to his own feelings of what is just and humane, or hard and uncharitable in the case."

In Passmore v. Eldridge, 12 Serg. & R. 198, the court held, that an assignment would be void if the transaction, taken altogether, has a direct tendency to protect the property of the debtor from his other creditors. The cases of Chever v. Clark, 7 L. [S.] & R. 570; Scott v. Morris, 9 Serg. & R. 123, and Wilson v. Kneppley, 10 Id. 439, seem to admit the debtor's right indirectly to coerce his creditors, by a conditional assignment, prohibiting them from participating in his effects unless they execute releases within a reasonable time. And in Pierpont and Lord v. Graham, 4 Wash. C. C. 232, Judge Washington held that a condition to an assignment requiring creditors to execute a release before taking the benefit of it, was not per se evidence of fraud, and that such disposition of property by the debtor would be valid, if it was not thereby to be sheltered from creditors an indefinite and unreasonable time.

In Widgery v. Haskell, 5 Mass. 144 [4 Am. Dec. 41], a debtor transferred all his property to trustees, the proceeds to be applied to pay indorsers and securities in full, and the remainder to be distributed to such other creditors as gave notice in six months, stayed all legal process, consented to have their claims adjusted by the majority, and released the debtor on the admission of their demands. This was held void, though the decision did not turn on the condition for a release. Chief

1. Cheever v. Imlay, 7 Serg. & R. 510.

Justice Parsons, in giving the decision, remarks: "Was this conveyance bona fide? Was it made with honest intentions, etc., and for purposes for which the law will authorize an insolvent debtor to convey all his effects? It purports to be made for the benefit of the indorsers and securities of the grantors, and for the grantees to secure them. But it is evident the intent of the parties went much further, to compel the discharge of the grantors from all their debts, by locking up from every creditor who would not discharge them every part of the estate of the grantors." "Does the law allow an insolvent debtor to make this bankrupt law for himself? By our law, a debtor's property is liable to attachment by any creditor; and on the other hand, a debtor may prefer one creditor to another, by paying his debt either in cash, or by conveying so much of his estate as will be adequate to the payment. But the creditor must be a party assenting to this payment or conveyance. If he be not, nothing passes to him, and nothing passes from the debtor, and his estate intended to be conveyed remains liable to attachment by any other creditor." Again he says: "We do not admit that an insolvent debtor can convey his estate in trust to pay his creditors without their consent." "The intent of the parties, apparent from the deed, was not the true intent, which was the pro rata payment of the other creditors on their discharging the grantors; the deed, therefore, was on a confidence not expressed, for their own benefit, reposed by the grantors in the grantees. We say for the benefit of the grantors, because they expected, in this manner, to obtain a discharge from the debts, on paying a part of them."

In Ingraham v. Geyer, 13 Mass. 146 [7 Am. Dec. 132], the court held an assignment void, conditioned for such creditors as should within four months release all their claims against the assignor, although that was not the sole ground of the decision. Parker, Chief Justice, says: "It is voluntary on the part of the debtor, and involuntary on the part of the creditor. It has no legal consideration; for the debts of the creditors who are to become parties, are not discharged at the time, and it shuts out from a participation in the funds all the creditors who will not give an absolute discharge from all their debts. There is, indeed, but one party to the indenture, viz., the assignor, for the persons named are his agents until the creditors sign the instrument. Such an assignment can not be supported."

In Burlingame v. Bell, 16 Mass. 324, the court held that a fraudulent assignment created no lien in favor of the assignee,

and says, "the man who fraudulently receives the property of another, to prevent its being attached, ought not to have the right, against the will of the creditors whom it is attempted to defraud, to have the opportunity to perfect the fraud by disposing of the goods, and leaving the creditors his liability only for his security." In Harris v. Sumner, 2 Pick. 129, the court held that an insolvent debtor could not transfer his whole property in such a manner as to make provision for himself, and to lock it up from those of his creditors who did not feel willing to accept of the remainder and discharge him. In Borden v. Sumner, 5 Pick. 265,' an assignment conditioned for a release by agreeing creditors was fully discussed by counsel, though the decision turned upon different grounds; but in page 267, the court express the opinion that the point has never been decided in that state. In Johnson v. Whitwell, 7 Pick. 71, Judge Wild says, an arrangement to secure property from attachment for the time being, though ultimately to secure the rights of all the creditors, is against the policy of the law; an attempt to hinder creditors in the prosecution of their lawful actions. Such attempts to cover the property from legal process are unlawful, and although no moral fraud was intended, yet it was a legal fraud, and can not be set up against a creditor."

In the cases of Marston v. Coburn, 17 Mass. 454; Andrews v. Ludlow, 5 Pick. 28; Lupton v. Cutter, 8 Id. 298; Cox v. Adams,' 5 Greenl. 245; De Caters v. Le Roy Chaumont, 2 Pick. 491,3 and The Canal Bank v. Cox, 6 Greenl. 395, assignments with condition for a release by assenting creditors were investigated, and held valid, though no objection was made on account of that clause. The case of Halsey v. Whitney, 4 Mason, 206, has been confidently cited as conclusive upon the point in controversy. In that case, the court did hold an assignment with the condition of a release valid; but the judge places his decision upon what he took to be the practice in Massachusetts. In page 230, he says: "When we take into view the great length of time during which stipulations of this nature have prevailed in this state without objection, there is much reason to believe that the profession have deemed the law settled in favor of the debtor on this point." "But I am free to say, that if the question were entirely new, and many estates had not passed upon the faith of such assignment, the strong inclination of my mind would be against the validity of them."

1. Borden v. Sumner, 4 Pick. 265; 16 Am. Dec. 338.

2. Fox v. Adams

3. De Caters v. Le Ray de Chaumont, 2 Paige Ch. 491.

The decisions in New York, although not direct upon the naked point presented in the case in hearing, tend strongly to convince us how the rule of law is esteemed in that state. Chancellor Kent, in Seaving v. Brinkerhoff, 5 Johns. Ch. 332, held a partial assignment upon condition of a release by creditors, as of pernicious tendency, if not fraudulent. He says, "a power of coercion over the creditor with such resulting trusts to the grantor, in case the coercion should not be successful, was deemed by the supreme court, in Hyslop v. Clark, 14 Johns. 458, to be a badge of fraud, and not a fair and lawful assignment." The assignment in the case of Hyslop v. Clark was to a trustee, for such creditors as should release, and in case any refused to release, their proportions to be paid to such other creditors as the assignors should appoint, and the overplus to the assignors. Judge Van Ness, in giving the opinion of the court, expressed his conviction that the assignment was in judgment of law fraudulent and void. One object, he said, evidently was to coerce the creditors to acquiesce in the terms offered to them. The language held to them is this: "If you will release your debts, you may participate in the benefits that may result from this assignment, but if you refuse, we will lock up our property indefinitely in such a way that whether you ever get any part of it shall depend upon our will and pleasure." Again, he says: "If they can keep it, the property, locked up in this way, in the hands of trustees, and set their creditors at defiance for three months, they may do it for three years or an indefinite period. I think, therefore, that this part of the assignment is void under the statute of frauds, and that it would be establishing the most dangerous precedent to declare it to be valid."

In Austin v. Bell, 20 Johns. 442 [11 Am. Dec. 297], an assignment conditioned for a release by assenting creditors, and for the reservation of the shares of those refusing to release to the grantor, was held void, and the assigned property subject to levy on execution. Chief Justice Spencer, in giving the opinion of the court in that case, says, p. 450: "This is not only an attempt to coerce creditors, and to place the property beyond their reach on execution, but it is the reservation of property which ought to be devoted to the payment of their debts to their private use. Without in the least impugning the doctrine that a man indebted has a right to give preference to creditors, I am bound to say that a deed which does not fairly devote the property of a person overwhelmed with debt to the payment of his creditors, but reserves a portion of it to himself,