frauding them.1 But under the statutes of some of the States, the powers of assignees in this respect have been extended. Thus in New York the trustee of "an insolvent estate, corporation, association, partnership or individual, may, for the benefit of creditors or others interested in the estate or property so held in trust, disaffirm, treat as void, and resist all acts done, transfers and agreements made, in fraud of the rights of any creditor, including themselves and others, interested, in any estate or property held by or of right belonging to any such trustee or estate."2 And the assignee is empowered to maintain an action against any person who has received, taken, or in any manner interfered with the estate, property and effects of the debtor in fraud of his creditors.

So under the Connecticut statute, the assignee may maintain an action to set aside a fraudulent conveyance made by the assignor. But when proceedings are not commenced under the insolvent act of that State within sixty days, a conveyance, though made with the intent to defraud creditors, will not be set aside under the act nor at common law unless the purchaser participated in the fraud. So in Maine, all property conveyed or transferred by the assignor previous to and in contemplation of the assignment, with the design to defeat, delay or defraud creditors, or to give a preference to one creditor over another, passes to the assignee by the assignment, notwithstanding such transfer, and the assignee may recover, collect and apply it for the benefit of creditors."

§ 111. What does not Pass.-Where the general partner

'Brownell v. Curtis, 10 Paige, 210; Browning v. Hart, 6 Barb. 91; Leach v. Kelsey, 7 Barb. 466; Van Dyke v. Christ, 7 Watts & Serg. 373; Lord Tenterden, in Jones v. Yates, 9 Barn. & Cres. 532; Van Heusen v. Radcliffe, 17 N. Y. 580; Estabrook v. Messersmith, 18 Wis. 545; Hawks v. Pritzlaff, 51 Wis. 160; Flower v. Cornish, 25 Minn. 473; Heinrichs v. Woods, 7 Mo. App. 236; Hanes v. Tiffany, 25 Ohio St. 549.

2

* L. of 1858, c. 314; Rev. Stat. (7th ed.) vol. III, p. 2330.

Ib. § 2. Southard v. Benner, 72 N. Y. 424; Ball v. Slafter, 26 Hun, 353; Leonard v. Claflin, Id. 288; Miller v. Halsey, 4 Abb. N. S. 28, 33; McMahon v. Allen, 35 N. Y. 403; s. c. 32 How. Pr. 313.

Thomas v. Beck, 39 Conn. 241; Shipman v. Etna Ins. Co. 29 Conn. 245; Palmer v. Thayer, 28 Conn. 257; Robertson v. Todd, 31 Conn. 555.

Sisson v. Roath, 30 Conn. 15.

• Rev. Stat. of Maine (ed. 1871), c.70, § 8; see further, on this section, Ch. XXXII.

(in a special partnership conducted in his name) made a general assignment of his property for the benefit of creditors, and used no language showing an intention to assign the property of the firm, it was held that the partnership property did not pass by the assignment.1 And where one partner makes an assignment for the benefit of creditors, this gives to his assignee no control over the partnership funds or claims so as to release them.2 The interest conveyed is only the interest in the surplus after the company's debts are paid. An assignment of "all the assignor's goods and chattels, wares and merchandises, rights, credits, notes, accounts and demands," does not pass his interest in a sum of money borrowed by him, and then in the course of transmission to him from the lender. Nor does an assignment of “all the bills, drafts, promissory notes, negotiable securities of every name and nature belonging to" the assignor's firm and connected with the business of said firm, pass a bill or note transferred to the maker of the deed by indorsement merely for purposes of collection. But under the words "all debts due the grantor," the indebtedness of a partner of the grantor to the partnership will pass."

Where a creditor assigned a distil-house in M. and land and wharf adjoining, "and all the rum and other liquors in the distil-house, or on the wharf, or elsewhere on the premises, and all the casks, &c., and other personal property whatsoever, being on the premises of, or belonging to," the debtor-it was held that barrels of rum previously consigned to a commission merchant in B. for sale, did not pass by the assignment. In Pennsylvania, before the act of April 11, 1848, by which all a married woman's property is exempted.

Property held in trust by the surviving partners of an old firm who have formed a new one, will not pass to an assignee for the benefit of the individual creditors of the surviving partners and the creditors of the new firm. Tieman v. Molliter, 71 Mo. 512.

entirely from her husband's control, and from liability for his debts, it was held that a legacy to a wife did not pass by a voluntary assignment. And in the same State, where a person holding land in trust for another, who paid the purchase money, conveyed the legal title to the latter; but, before the deed was recorded, made an assignment of all his property for the benefit of his creditors who should agree to release their debts, on receiving their share of the estate, and a release was executed accordingly-it was held that the assignment passed no interest in such trust land, although the assignor was in possession, and the creditors had no notice of the trust until after the execution of the release.2

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§ 112. After Acquired Property.-Where purchases are made by a firm some time before an assignment, but arrive subsequently, the title thereto vests in the assignee, the seller having failed to exercise the right of stoppage in transitu; but property, the title to which is acquired subsequent to the assignment, does not pass, nor a cause of action accruing to the assignor after the date of the assignment but before its delivery. A trade-mark does not pass to the assignee," nor will the title to bank stock until the statutory requirement has been complied with, when it is necessary that the transfer should be entered on the corporate records. But an assignment of a particular claim passes all the remedies and securities which the assignor possesses, although not named or set forth in the assignment."

Skinner's Appeal, 5 Barr, 262. As to dower, and choses in action of the wife, see ante, p. 149. 'Ludwig v. Highley, 5 Barr, 132. McCabe's Appeal, 22 Penu. St. 427; Haskins v. Alcott, 13 Ohio St. 210; Shipman v. Graves, 41 Mich. 675; Lorenz v. Orlady, 87 Penn. St. 228. The assignee "under chapter 80, R. S., gets no title to property in transit at the time of making the assignment, and which is not mentioned or referred to in the assignment or the required inventory, and where neither the vendor nor the vendee ever intended that the title should vest in such vendee making the assignment, notwithstanding he may get the property into his actual possession." Clark v. Bartlett, 50 Wis. 543; see Lacker v. Rhoads, 51 N. Y. 641; reversing 45 Barb. 499. Crow v. Colton, 7 Daly, 52.

Bradley v. Norton, 33 Conn. 158. Contra, Matter of Knox, 1 Monthly L. Bulletin, 47; see Milliken v. Dart, 26 Hun, 24; Hegeman v. Hegeman, 8 Daly, 1. As to a patent, see Campbell v. James, 2 Fed. Reptr. 338; 5 Id. 806; reversed in Supreme Ct. 3 Morr. Trans. 439.

"Fiske v. Carr, 20 Me. 301.

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Mehaffy v. Share, 2 Penn. (Penr. & W.) 361.

CHAPTER VII.

FOR WHOSE BENEFIT AN ASSIGNMENT MAY BE MADE.

§ 113. Assignments may be made not only for the benefit of creditors, strictly so called, that is, persons to whom the assignor is actually indebted,' but also for the benefit of persons who have incurred responsibilities on his behalf, such as sureties, indorsers, and bail; actual liabilities being as proper subjects of security by assignment, as debts due. This is called, by Mr. Justice Story," "a clear principle." Nothing, in fact, is more common than for debtors, on the eve of failing, to assign property for the security of indorsers, sureties on bonds in the custom house, &c.7

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1 One to whom another is liable on a contract, express or implied, though contingently, is a creditor from the time the liability is entered into, within the meaning of the statute of 13 Elizabeth. Foote v. Cobb, 18 Ala. 585. A creditor may honestly obtain a security for a debt known or believed to exist, though unliquidated. Ruffin, C. J., in Dewey v. Littlejohn, 2 Ired. Eq. 495,

504.

2 Stevens v. Bell, 6 Mass. 339; Ingram v. Kirkpatrick, 6 Ired. Eq. 463; Wiswall v. Potts, 5 Jones' Eq. (N. Ca.) 184; Loeschigk v. Jacobson, 26 How. Pr. 526: Dickson v. Rawson, 5 Ohio St. 218; see Lill v. Brant, 6 Ill. App. (Bradw.) 366.

* Griffin v. Marquardt, 21 N. Y. 121; Stoddard v. Tomlinson, 10 Ala. 824; Copeland v. Weld, 8 Me. 411; Bank v. Cox, 6 Me. 395; Keteltas v. Wilson, 36 Barb. 298: s. c. 23 How. Pr. 69; Bank v. Talcott, 22 Barb. 550; Vaughan v. Evans, 1 Hill Ch. 414; Cunningham v. Freeborn, 11 Wend. 241; s. c. 3 Paige, 537; Halsey v. Whitney, 4 Mason, 206; Duvall v. Raisin, 7 Mo. 449. Indorsers are viewed by courts as creditors, and a deed of assignment for their security is valid although no payment had been made by them at the time of the execution of the deed. In the case of Griffin v. Marquardt (Id. ibid. supra), the assignee was directed to pay the amount of certain notes not yet due to the indorsers; this provision was regarded as in effect the same as if the direction had been in favor of the holders of the notes. As to future indorsers, see post, p. 156.

'Woodward v. Braynard, 6 Mart. (La.) 572; but see Wallon v. Scott, 10 Watts, 237; Price v. Moses, 10 Rich. Law, 454, 562.

* Canal Bank v. Cox, 6 Greenl. 395; Halsey v. Whitney, 4 Mason, 206, 231; Stevens v. Bell, 6 Mass. 339; Hendricks v. Robinson, 2 Johns. Ch. 283; Loeschigk v. Jacobson, 26 How. Pr. 526.

In Halsey v. Whitney, 4 Mason, 206, 231; see also Dance v. Seaman, 11 Gratt. 778, 782.

'Parker, C. J., in Cushing v. Gore, 15 Mass. 69, 74; see United States v. Hoyt, 1 Blatch. C. C. 332. By the Massachusetts act of April 15, 1836 (Stat. of 1836, c. 238), it was formally declared that indorsers and sureties might be considered as creditors within the provisions of the act.

§ 114. Sureties, Future Responsibilities, &c.—In regard to official sureties, the decisions have not been uniform. In the case of Dewey v. Littlejohn,' it was held in North Carolina, that a person who is appointed to a public office, for the faithful performance of the duties of which he is bound to give sureties, may properly indemnify such sureties by a deed of trust on his property. In this case, a debtor who had executed a deed of trust for the benefit of his creditors, had made provision in it for the security of the sureties in a bond given by him for the performance of his duties as clerk and master of the court of equity. The deed was objected to, in this particular, as being against good morals and public policy, especially as it included future as well as past breaches of duty; but the objection was overruled by the court. But in the case of Currie v. Hart, in the Court of Chancery of New York, for the first circuit, where an assignment had been made by a sheriff of official fees due and to become due, having for one of its objects an indemnity of his sureties against future misappropriation of moneys which should be collected on executions, it was held to be void.3

§ 115. Future and Contingent Liabilities-Assignments for the benefit of persons who may incur liabilities for the assignor at a future period in the shape of advances, suretyships, and the like, will not be sustained. But deeds of trust in the nature of mortgages to secure such persons do not come within this rule.5

12 Ired. Eq. 495.

3

22 Sandf. Ch. 353.

The assistant vice chancellor, in this case, expressed an opinion to this effect, but waived a formal decision of the point; the assignment being held void on several other grounds. In Alabama, a deed of trust executed by a defaulting guardian, to indemnify and save harmless his securities, was held valid. Hopkins v. Scott, 20 Ala. 179.

Barnum v. Hempstead, 7 Paige, 598, 570; Lansing v. Woodworth, 1 Sandf. Ch. 43; and see Griffin v. Marquardt, 21 N. Y. 121; Brainerd v. Dunning, 30 N. Y. 211; Neuffer v. Pardue, 3 Sneed (Tenn.), 191; Caruthers, J., Id. 193, 194; Whallon v. Scott, 10 Watts, 237. It is said that where there is a trust for payment of debts, it extends only to debts existing at the time of its execution. Madd. Ch. 433.

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1

Hendricks v. Robinson, 2 Johns. Ch. 283, 308; affi'd on error, 17 Johns.