make the assignment fraudulent and void;(1) and the selection of an insolvent person, or one not of sufficient character and pecuniary ability to afford assurance that the trust will be properly administered, is prima facie evidence of fraud ;(2) but not conclusively so.(3)

It is a general principle also, that stipulations tending to coerce the creditors unreasonably, to the prejudice of their just claims and the advantage of the assignor, render the assignment fraudulent. A power given to the assignee to compound with the creditors, (4) or to either the assignor or assignee, subsequently to declare or alter preferences,(5) renders the deed fraudulent, or a power to the assignee to hasten or to postpone the time of sale, so as to enable him to defeat any creditor who should attempt to subject the interest of the assignor to levy and sale, no matter in what words cloaked,(6) as where power was given to the assignee to sell at such time or times and in such manner as should be most conducive to the interests of creditors. An assignment by an insolvent firm of partnership property to the payment of the individual debt, of one of the partners, renders the assignment void (Wilson v. Robertson, 21 N. Y. R. 587); but an assignment of all individual as well as of all partnership property is not void on its face where there is nothing appearing thereon to show that all the partners may not have had individual property, when the agreement was made, more than sufficient to pay their individual debts; and where the assignors can in fact show, as in case of question it lies on them to do, that they had such property. Knauth v. Basset, 34 Barbour, 31.

But the circumstance which most usually renders these assignments fraudulent, is the reservation of a use or benefit to the grantor. It is a settled principle, that a reservation to the grantor or his family, or any one not a creditor, of any trust, profit or benefit out of the property conveyed, or of a credit on account of any part of it, is a fraud in law, and avoids the whole assignment.(7) Accordingly, a stipulation for a main(1) Cram v. Mitchell, 1 Sanford's Chancery, 251; Currie v. Hart, 2 Id. 353, 356. (2) Reed v. Emery, 8 Paige, 417; Connah v. Sedgwick, 1 Barbour, 211, 214. (3) Clark v. Groom, 24 Illinois, 416.

(4) Wakeman v. Grover, 4 Paige, 24, 41, S. C. on error, 11 Wendell, 187, 203; Hudson et al. v. Maze, 3 Scammon, 579, 583; Kalkman v. McEldery, 16 Maryland, 68.

(5) Barnum v. Hempstead, 7 Paige, 569, 572; Boardman v. Halliday, 10 Id. 224, 228; Strong v. Skinner, 4 Barbour's Supreme Court, 547, 561; Averill v. Loucks, 6 Id. 471, 476; Sheldon v. Dodge, 4 Denio, 218, 222; Gazzam v. Poyntz, 4 Alabama, 374, 380; Mitchell v. Stiles, 1 Harris, 306.

(6) Jessup v. Hulse, 29 Barbour, 539.

(7) Mackie v. Cairns, 5 Cowan, 549; Jackson v. Parker, 9 Id. 73, 86; Mead v. Phillips and others, 1 Sanford's Chancery, 83, 86; Goodrich v. Downs, 6 Hill's N. Y., 438, 440; Kissam v. Edmundson et al., 1 Iredell's Equity, 180; Anderson et al. v. Fuller et al., 1 McMullan's Equity, 27; McAllister v. Marshall, 6 Binney, 338, 344; Shaffer v. Watkins, 7 Watts & Sergeant, 219, 227; Faunce v. Lesley, 6 Barr, 121, 123; Peacock v. Tompkins, Meigs, 317, 328; Austin v. Johnson, 7 Humphreys, 191, 192; Leadman v. Harris, 3 Devereux, 144; Byrd v. Bradley, 2 B. Monroe, 239; and see Quarles v. Ker, 14 Grattan, 48; London v. Parsley, 7 James' Law, N. C. 313.

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tenance for the grantor or his family, or that *the grantor shall be employed as agent or manager at a fixed salary,(1) or a reservation of a specific sum of money, or of so much a year to the grantor.(2) Even "so much as I am by law allowed to retain from execution," avoids the deed in Tennessee, though not in Pennsylvania.(3) But courts have hesitated in applying this as a rule in all cases, witout regard to circumstances: it has been held (4) that a reservation of means of paying his small debts under fifty dollars, and ordinary family expenses," and(5) of three hundred and fifty dollars" to his individual use and disposition, for the purpose of paying some small claims due from him, of high honorary obligation, which are not now liquidated or specifically ascertained," and that(6) a reservation of six months' possession, did not, under the circumstances, of themselves, avoid the deed. It seems also that there is no objection to the trustees, of their own accord, employing the debtor as agent or manager at a reasonable salary ;(7) nor to a clause in the deed giving them that power if they think fit.(8) See remarks in Filler v. Maitland 5 Watts & Sergeant, 307, 310; and also in Nicholson v. Leavitt, 4 Sanford, 270; and Mulford v. Shirk, 26 Penna. State, 473; Maenel v. Murdock, 13 Maryland, 180, citing Hennesey v. Western Bank 6 Watts & Sergeant, 312. And it must be observed that in Pennsylvania, at least, and perhaps in other States, the exception from a general assignment of certain specific property without any stipulation, reservation or condition in favor of the assignor does not render it void as to creditors: In other words, partial assignments are allowable provided they be partial ones which do no injury to creditors, and do not tend to hinder or delay them. Hence where the members of a firm executed a general assignment excepting therefrom "the bedsteads, bedding, bed and table linen, also two mahogany bureaus being part of the household furniture" of one of them; and "all the household fur

(1) Johnston's Heirs v. Harvy, 2 Penrose & Watts, 82, 92; McClurg v. Lecky, 3 Id. 83, 91; Henderson v. Downing, 24 Mississippi, 117.

(2) Harris et al. v. Sumner, 2 Pickering, 129; Richards v. Hazzard, 1 Stewart & Porter, 139, 156; Mackie & Cairns, 5 Cowen, 549, considered in Butler v. Van Wyck, 1 Hill's N. Y. 463, and Goodrich v. Downs, 6 Id. 440, as overruling contrary opinions in Riggs. Murray, 2 Johnson's Chancery, 565, and S. C. on error, 15 Johnson, 571, and of course those in Austin v. Bell, 20 Id. 442, 447, grounded upon it.

(3) Sugg v. Tillman, 2 Swan, 210; but contra Mulford v. Shirk, 26 Penna. State, 473. (4) Canal Bank v. Cox and Tr., 6 Greenleaf, 395, 399.

(5) Skipwith's Ex'or v. Cunningham, &c., 8 Leigh, 272, 273, 292.

(6) Kevan et als. v. Branch, 1 Grattan, 275.

(7) Shattuck v. Freeman, 1 Metcalf, 10, 14; Vernon, &c., v. Morton & Smith, &c., 8 Data, 247, 253; Pearson & Anderson, &c., v. Rockhill & Co., 4 B. Monroe, 296, 301; and see Linn. Wright, 18 Texas, 317.

(8) Planters' and Merchants' Bank of Mobile v. Clarke, 7 Alabama, 765, 770; Marks e. Hill, 15 Grattan, 400, and cases there cited; also Janes v. Whitbread, 11 C. B. 406, though this case would not, perhaps, in its entire extent, be followed in America.

niture" of the other; the assignment was not considered to be vitiated by this; since there was no attempt to keep from creditors the property not conveyed, by reserving it for the grantor or his family, or giving it any other special direction; but a non-conveyance simply of it, by which it was left where it was, and liable of course to execution, Knight v. Waterman, 36 Penn. State, 261.

The reservation to the grantor, of the surplus after payment of all the creditors, is not fraudulent; for it is no more than the law would imply ;(1) nor a reservation to partners individually, of a surplus of partnership property, after paying partnership debts; (2) the surplus being individual property and left still liable to individual debts; but aliter of a reservation by an insolvent firm assigning their individual property as well as that of their firm; and there being creditors of the assignors individually as well as in their character as partners. Coulomb v. Caldwell, 6 N. Y. 484. An express reservation of the surplus upon an assignment of all or nearly all the debtor's property, to or for a part of his creditors, has been decided (3) to be fraudulent, whether in fact there was any surplus or not; see Doremus v. Lewis, 8 Barbour's S. Ct. 124; and in Dana, Adm'r, v. Lull, 17 Vermont, 390, it was decided, that an assignment of all the debtor's property for the benefit of a portion of his creditors, without a provision that the surplus shall be distributed among the creditors, is fraudulent, by reason of the resulting trust of the surplus, and this, even if it turns out that there is no surplus. [But an assignment for the equal benefit of all creditors equally in proportion to the amount of their debts, until they are fully paid and satisfied, and to return the surplus to the assignor, is good.(4) As is also such reservations where some debts were *preferred, provided the surplus to *717 be returned was that remaining after payment of all debts.(5)] And in Rahn v. McElrath, 6 Watts, 151, 155, an express reservation of the surplus was held not to be fraudulent on the ground that the delay of other creditors would be no longer than might be necessary to turn the property into money, unless where the amount of property assigned was so excessive as to create a presumption of fraud in fact ;(6) a secret reservation, however, of the surplus upon a conveyance absolute upon its face, is admitted to be a fraud.(7) In Hindman v. Dill & Co., 11

(1) Hall et al. v. Denison et tr., 17 Vermont, 311, 318. (2) Hubler v. Waterman, 33 Penna. 414.

(3) Suydam & Jackson v. Martin, &c., Wright, 698; Goodrich v. Downs, 6 Hill's N. Y. 438; Strong v. Skinner, 4 Barbour's Supreme Court, 547, 559; Cole v. Jessup, 2 Id. 309; and Barney v. Griffin, 2 Comstock, 365, 371; dicta in Leitch v. Hollister, 4 Id. 214. (4) Ely v. Cook, 18 Barbour, 612.

(5) Beatty, Trustee, v. Davis, 9 Gill, 213.

(6) And see Conkling v. Carson, 11 Illinois, 509.

(7) McCulloch v. Hutchinson, 7 Watts, 434; Smith v. Lowell, 6 New Hampshire, 67; Smith v. Smith, 11 Id. 460, 465.

Alabama, 689, a reservation to the grantor in the deed of assignment, of the surplus after payment of the debt for which the assignment was made, was decided not to be fraudulent. It was declared to be not the reservation of a benefit under the assignment, but rather a declaration in terms of what would be the legal effect of the deed, without such a clause and the decision in Goodrich v. Downs, 6 Hill's N. Y. 438, was thought to be controlled by the particular statute of that State, which declares a deed void if it reserves a trust for the use of the person making it. A similiar decision was made in Austin v. Johnson, 7 Humphreys, 191, where a variety of articles of unascertained value were conveyed to a trustee for the security of one creditor, and at the conclusion of the deed it was stipulated, that after paying the debt specified, any balance that might remain should be paid to the vendor or his order. This, it was contended, rendered the assignment void. "If the property conveyed were obviously of greater amount than was necessary to secure the debt provided for, this objection might have much weight," said the court; "but it does not so appear, and the stipulation only amounts to what the vendor would have been entitled to without it, viz., to receive any small balance that might be left after paying the debt. Why should he not be permitted to do this? no other creditor could get it without his judgment and by bill or garnishment. And if the design in conveying the property were not actually fraudulent, we are not warranted in presuming, that any balance left, would not be fairly appropriated by the vendor."

Whether a condition of release will avoid an assignment, as falling within the notion of a reserved benefit, has been disputed. An assignment to a trustee of part of the debtor's property, upon condition of a full release, is certainly fraudulent(1) (except perhaps in Massachusetts; Nostrand v. Atwood, 19 Pickering, 281, 285, 286); and an assignment by partners which does not include the individual property of both, as well as the joint property, and is upon a condition of release from all liabilities, individual and joint, is fraudulent, as was held in the principal case, Thomas v. Jenks, and apparently in Wyles v. Beals, 1 Gray, 236; and this even where it does not appear that the partner whose separate property is not transferred, in fact possessed any ;(2) the dicta in Fassit v. Phillips, 4 Wharton, 399, 409, were in an interlocutory proceeding, and are extra-judicial. But in Canal Bank v. Cox and Tr., 6 Greenleaf, 395, 402, it was held that a stipulation for the release of the *grantor's [*72 sureties and endorsers, as well as of himself, was not fraudulent. An assignment of part of the debtor's property to such creditors as

(1) Seaving v. Brinckerhoff, 5 Johnson's Chancery, 329, 332; Skipwith's Ex'or v. Cunningham, &c., 8 Leigh, 272, 291.

(2) Hennessy v. The Western Bank, 6 Watts & Sergeant, 301, 311; In re Wilson, Barr, 431, 448.

VOL. I.-6

should release, the surplus to be divided among the creditors generally, where the existence of a residue was concealed by the debtor, was considered to be fraudulent in fact, in Le Prince v. Guillemot, 1 Richardson's Equity, 187, 201, 218, 219; and in Jacot v. Corbett et al., 1 Cheves' Chancery, 71, 74, a reservation to the grantor of the surplus after paying to releasing creditors forty per cent., if the estate would yield as much, was decided to be fraudulent.

In New York, it is conclusively settled, not only that a stipulation for a release as a condition of receiving a benefit under the deed, the surplus returning to the debtor in exclusion of non-releasing creditors, is fraudulent;(1) but that such a stipulation as a condition of preference, though the only penalty be the postponement of non-releasing creditors to others, avoids the deed; (2) and the principle established by that case, and repeated in Goodrich v. Downs, 6 Hill's N. Y. 438, and Spaulding v. Strong, 32 Barbour, 240, is, that though preferences are allowed, the appropriation of the property to the use of the creditors must be absolute and unconditional, and that the creation of a trust that is to operate by way of coercing the creditors into a relinquishment of part of their demands, is fraudulent and void, though no portion of the property be reserved to the debtor's own use: and this general principle is approved and sanctioned in Hafner v. Irwin, 1 Iredell's Law, 490, and Robins et al. v. Embry et al., 1 Smedes & Marshall's Chancery, 208, 265; and see Whallon v. Scott, 10 Watts, 237, 244; see also Hastings v. Belknap, 1 Denio, 197. The law of Ohio goes as far as that of New York: a condition of release avoids the assignment;(3) even if the surplus is not reserved to the debtor but is to be distributed to creditors;(4) and the decisions in Missouri appear to go to the same extent.(5) In Connecticut, Illinois, and Maryland, the requirement of a release, as a condition of participation in the fund, the surplus resulting to the assignor, is fraudulent and avoids the deed;(6) and the same principle has been adopted in the District of Maine ;(7) these cases leaving undecided the question whether a release being made a condition of preference merely, is fraudulent. In the State of Maine, before the statute of April 1st, 1836, conditions of release were valid ;(8) but since that statute, as also (1) Hyslop v. Clarke, 14 Johnson, 458; Austin v. Bell, Id. 20, 442, 448.

(2) Wakeman v. Grover, 4 Paige, 24; S. C. on error, 11 Wendell, 187, 202, 225. (3) Atkinson & Rawlins v. Jordan Ellis & Co. and others, Wright, 246; Woolsey v. Urner, Wright, 606.

(4) Barret & Nicholson v. Reid et al., Wright, 701.

(5) Brown v. Knox, Boggs & Knox, 6 Missouri, 302; Drake v. Rogers & Shrewsburry, Id. 317, 319.

3

(6) Ingraham v. Wheeler, 6 Connecticut, 277, 283; Howell et al. v. Edgar et al., Scammon, 417; Ramsdell et al. v. Sigerson et al., 2 Gilman, 78, 83; Malcolm v. Hodges, 8 Md. 418; Bridges v. Hendes, 16 Id. 104; Swearingen v. Slicer, 5 Missouri, 241. (7) The Watchman, Ware, 232, 242, 244.

(8) Todd v. Bucknam, 2 Fairfield, 41.