N. Y. Superior Court.-Silas C. Herring against Ely Hoppock. All who direct, request, or advise an act to be done which is wrongful, are themselves wrong-doers, and responsible for all damages. (1 Ch. Pl., ed. of 1837, p. 91.) To render one man liable for the torts of another it is not necessary that the two should be actually co-operating at the time the wrong is done; it is enough that the act of the individual sought to be charged, ordinarily and naturally, produced the acts of the other. The intent with which an act is done, is by no means the test of the liability of a party to an action of trespass. If the act caused the particular injury, whether a trespass was intended or not, the person doing the act is liable for the consequences of the injury. (Guille v. Swan, 19 J. R., 381; Wall v. Osborn, 12 Wend., 39.) When a sheriff requires a bond of indemnity against the claims of persons claiming to be owners of property levied upon, before he will proceed to sell it, and a bond is given to induce him to sell, all who sign the bond, in effect request him to sell it, and agree to take upon themselves the consequences of the sale. The act of giving the bond not only naturally produces the wrongful sale, but it is mainly, if not the sole cause of its being made. The language of the sureties to the bond is, proceed and sell, and if the plaintiff in the execution does not pay all damages, costs and expenses to which you may be subjected, at the suit of the person to whom the property rightfully belongs, we will pay them. It is this request and contract of the sureties, that in judgment of law caused the wrong. This request and promise were required by the sheriff, as a condition to doing the wrong, the damages resulting from which, this action is brought to recover. Davis v. Newkirk, 5 Denio, 92, decides the precise point, that the signing of an indemnity bond as surety, is sufficient evidence to carry the case to a jury, in an action against the surety, for a sale by a sheriff thus indemnified. We do not concur in the views presented to show that the decision in that case was erroneous. (See Root v. Chandler, 10 Wend., 110; People v. Schuyler, 4 Coms., 173, We think it was error to direct a verdict in favor of the defendants. on the evidence which had been given. The judgment appealed from must be reversed, and a new trial ordered, with costs to abide the event. N. Y. Superior Court.-George A. Shufeldt agst. Charles Abernethy. [General Term, Dec. 16th, 1853.] Before DUER, CAMPBELL and BOSWORTH, Justices. GEORGE A. SCHUFELDT, Receiver, &c., against "CHARLES ABERNETHY, An assignment for the benefit of creditors gave an authority to the assignee to sell the property assigned "upon such terms and conditions as in his judgment" may appear best, and most for the interest of the parties concerned." Held, that these words, by a necessary implication, gave a discretionary power to the assignee to sell upon credit, and therefore, according to the judgment of the Court of Appeals in Nicholson v. Leavitt, rendered the assignment, upon its face, fraudulent and void. This was a complaint filed by the plaintiff as receiver of Cornelius Lockwood, a judginent debtor, to set aside an assignment made by him to the defendant. The assignment preferred creditors, and the only grounds upon which it was sought to be violated were that it contained a provision authorizing the assignee "to sell the assigned property on such terms and conditions as in his judgment might be deemed best," and that no schedule of the property was annexed to the instrument as required by its terms. The cause was argued at Special Term before Judge Campbell, and the assignment held to be void as to creditors. The Court holding that the above provision authorized the assignee to sell upon credit. From his judgment the defendant appealed. C. F. Sandford, for appellant, made and argued the following points: I. The assignment in question was made and accepted with the bona fide intention of distributing the property of the assignor among his creditors, and not for the purpose of hindering, delaying, or defrauding them. 1st. The answer denies any fraudulent intent, and none appears from the proofs. 2nd. There was an actual bona fide indebtedness from the assignor to the preferred creditors, prior to the assignment. 3rd. The assigned property was subject to the lien of an execution previous to the assignment, and an advance was made by the preferred creditors, in addition to their previous claim, of a sum sufficient to remove said lien. N. Y. Superior Court.-George A. Shufeldt agst. Charles Abernethy. 4th. The transfer is absolute and unqualified, without reservation of benefit or control to the assignor. 5th. There was an actual and immediate delivery of the assigned property and books of account, constituting the assignor's whole effects. 6th. There is no resulting trust in favor of the assignor until all his debts are paid. II. The omission to annex schedules to an assignment for the benefit of creditors is not per se fraudulent; and, if it raise a presumption of fraud, the same may be repelled by the facts and circumstances attending the execution of the instrument. Cunningham v. Freeborn, 11 Wend., 241, 254; Keyes v. Brush, 2 Paige, 311; Stevens v. Bell, 6 Mass., 339; Havens v. Richardson, 4 New Hamp., 124; Pierpont v. Graham, 4 Wash. C. C. R., 232. 1st. The facts proved, already adverted to, tend to repel a presumption of fraud. 2nd. The preparation of a complete inventory, and the delivery thereof to the assignee simultaneously with the execution and delivery of the assignment itself, are, in effect, equivalent to annexing a schedule, and fully obviate any objection arising from its omission. III. The omission of a schedule, to which reference is made as "annexed," leaves no such uncertainty in the words of description, as would invalidate the instrument, considering it as a conveyance. 1st. The annexation thereof is not rendered by such reference a condition precedent to the complete execution of the transfer. Woodward v. Marshall, 22 Pick. 468; Keyes v. Brush, 2 Paige, 311; West v. Steward, 14 Mees. and Wel. 47. 2nd. The general words of description used cover the whole property of the assignor, and although the subsequent specification of particular articles would have controlled and limited the meaning, had a schedule been actually annexed, specifying particular articles only, and not purporting to be a complete inventory of the assignor's effects, still the entire omission of any schedule will not be regarded as defeating the operation of the general words, the obvious intent of the instrument being to convey the whole of the assignor's property, and the omission of the schedule being, obviously, a mere misprision cured by the proofs. Clap vs. Smith, 16 Pick. 247. IV. The trusts created by the assignment are such as have long been sanctioned and sustained by the courts, and their legality was unquestioned, until the recent decision of the Court of Appeals in Nicholson v. Leavitt, reversing the judgment of this court, and approving the prior case of Barney v. Griffin, (2 Com. 365,) threw a doubt upon the construction of that clause in the instrument, which vests in the assignee discretionary power over the terms of sale. 1st. The general principle that preferences among creditors may be secured by a voluntary assignment for their benefit, is deemed too well established to be controverted. Murray v. Riggs, 15 John, 571; Grover v. Washburn, 11 Wend. 194. N. Y. Superior Court.-George A. Shufeldt agst. Charles Abernethy. 2nd. The trust to sell upon such terms and conditions, as, in the judgment of the assignee, should appear most for the benefit of the parties concerned, was lawful, and its execution would involve no hindrance or delay as against creditors. 1. The law requires a trustee to exercise his best judgment in the management of his trust, and the courts, upon application of any interested party, will restrain any erroneous exercise of judgment. The trustee, exercising his judgment, is still amenable to the law, and liable for any violation thereof. Rogers v. DeForest, 7 Paige, 272. 2. The trust under consideration vests no such authority in the assignee to sell on credit, as is contemplated by the decisions of the Court of Appeals, above referred to. 3. There is a marked distinction between those cases and the present one. In the former, the authority to sell on credit is express and absolute. In the latter, if it exist at all, it must be implied. 4. Courts will not imply a violation of law. On the contrary, if it be established that an authority to sell on credit is unlawful and fraudulent, it will be presumed that no authority to make such sale was contemplated in, or conferred by the instrument in question. 5. But the very terms of the instrument preclude the implication of such an authority. The assignee is expressly directed to "convert" the assignor's effects into "money," not into notes or debts. 6th. It is believed that the courts, and the profession generally, do not regard the decisions above referred to, as establishing the doctrine claimed by the plaintiff in this case. A contrary position has been repeatedly taken by the judges of the Supreme Court at Special Term. Southworth v. Sheldon, 7 How. Pr. 414; Whitney v. Krows, 11 Barb. 198. V. The advance made to the plaintiff in the execution, by the preferred creditors, for the purpose of relieving the property from the execution lien, was made in good faith, and upon the condition that the assignment should be executed. If the assignment be set aside, the preferred creditors have an equitable claim to the extent of such advance. The ruling of the Court, at Special Term, in authorizing the assignee to retain the amount so advanced out of the assigned property was in accordance with law and equity. VI. The judgment of the Court at Special Term, in pronouncing the assignment fraudulent and void as against creditors, was erroneous and should be reversed. The assignment should be decreed valid, and judgment be entered for the defendant, with costs of the appeal. John C. Dimmick and Geo. S. Carmichael, for respondent, contra., I. Assignments creating preferences are not encouraged, but simply tolerated by law, the parties claiming under them must be prepared to show with certainty their validity; the law will not aid them by any presumptions in their favor. Webb v. Dagget, 2 Barb. 9; Woodburn v. Mosher, 9 Barb. 257. N. Y. Superior Court.-George A. Shufeldt agst. Charles Abernethy. II. The assignment in question vests in the assignee a discretion to sell upon such terms and conditions as in his (the assignee's) judgment may appear most for the interest of the parties concerned, thereby depriving the creditors of their prior and better right to dictate the terms upon which the property should be sold, and empowering the assignee to sell upon credit if he sees fit, and thereby do of his own volition what he has no right to do, except by consent of the creditors, or by order of the court. Barney v. Griffin, 2 Com. 365; Nicholson v. Leavitt, 4 Sandford, 252. (Overruled in Court of Appeals. See Judge Edmonds' opinion.) III. The assignment itself is imperfect, and never was so executed as to vest the property in question in the assignee; there is a failure in describing the property assigned, arising from the want of the schedule mentioned in the assignment, thus showing that the instrument in question was never executed or intended as a full and perfect assignment, and all property therefore belonging to the judgment debtor, of which defendant has possessed himself by virtue of this incomplete instrument, must be regarded as held by him for the benefit of the plaintiff representing the creditors of the judgment debtor. Anvill v. Loucks, 6 Barb. 470; Porter v. Williams, 5 H. Practice Rep. 441; Wilkes and Fontain v. Ferris, Shiff, &c., 5 John. Rep. 835; Moir and Norton v. Brown, 14 Barb. 39. IV. If the assignment should be regarded as executed, it is clearly fraudulent, it is in effect an assignment of so much of the assignor's property, as he should thereafter elect to put on the schedule. 5 John. Rep. 335, By the Court-DUER, Justice.-Were we at liberty to follow our own convictions, we should probably have no difficulty in holding that this assignment is valid, and consequently would feel it our duty to declare, that the judgment at Special Term, as erroneous, must be reversed. But we are not at liberty to follow our own views. The Court of Appeals in reversing the judgment of this Court, in Nicholson vs. Lea vitt, has established the doctrine, that an assignment made by an insolvent debtor for the benefit of his creditors, is, upon its face, fraudu lent and void, when by its terms a discretionary power is given to the assignee, by the exercise of which, the immediate conversion of the property into money, or the immediate distribution of the proceeds of its sale among the creditors may be prevented or delayed. Such a provision, it seems, is conclusive evidence of an intent to delay the cre ditors, and an intent to delay creditors, it also seems, is equivalent to an intent to defraud them. It may be that the discretion is given with a sole view to benefit the creditors by enlarging the fund out of which their debts are to be satisfied, but this circumstance, whether manifest or proved, is deemed immaterial. The assignment to be valid, must either by express words or by its necessary legal construction, devote all the property which it embraces, not only absolutely and unconditionally, but immediately |