N. Y. Court of Appeals.-Leavitt v Blatchford and others. cates of deposit given by the said North American Trust and Banking Company, or the renewals thereof, are or shall be fully paid and satisfied according to the tenor and effect thereof respectively, except so far as the same stocks, bonds and mortgages, and premises may be realized in pursuance of the TRUSTS herein contained. AND IT IS HEREBY DECLARED AND AGREED, by and between all the parties to these presents, that the said Richard M. Blatchford, and James B. Murray, or the survivor of them, his executors and administrators, shall hold and stand possessed of the said stocks, bonds and mortgages, and other the premises hereinbefore stated, assigned to them as aforesaid, IN TRUST, for the said North American Trust and Banking Company, until default shall be made in the payment of the said certificates of deposit of the said North American Trust and Banking Company, now or hereafter to be issued upon this agreement, or in some or one of them, according to the tenor and effect thereof respectively. And from and after default shall have been made in payment of the said certificates of deposit, or any of them, or any part thereof, or the money secured thereby, then, and from thenceforth, to stand possessed of the said stocks, bonds, mortgages and premises, IN TRUST, for the holders of the said certificates of deposit of the said North American Trust and Banking Company respectively. And that the said Richard M. Blatchford, and James B. Murray, or the survivor of them, his executors or administrators, do and shall as soon after any such default shall be made as aforesaid, proceed to the realization of the said securities, either by sale or otherwise in their discretion; or, as shall be directed by the holders of said certificates of deposit, and do and shall pay over the moneys which shall be so raised, as aforesaid, unto the said Palmers, Mackillop, Dent & Co., or any other parties who may then be the holders of said certificates of deposit, and until the amount owing to the holders of said certificates of deposit shall be fully paid and satisfied, whether the same, as the case may be, is for principal or interest, or for any costs, charges or expenses, which may have been incurred or sustained by the holders of the said certificates of deposit by reason of any such default. And from and after all the said certificates of deposit last referred to, and all interest thereon, and all costs, charges, and expenses, which may have been sustained by the holders of the said certificates, or any of them, or by the said Palmers, Mackillop, Dent & Co., by reason of the non-payment of the said certificates of deposit, or any of them, IN TRUST, to hold the said stocks, bonds, and mortgages, and the moneys thereby secured for the said North American Trust and Banking Company, and to transfer and dispose of the same, as the said North American Trust and Banking Company shall direct and appoint; at all times, however, during this trust, retaining in their hands their disbursements, expenses, costs, and charges, incurred in and about the execution thereof. And the said Richard M. Blatchford and James B. Murray, and each of them doth for himself, his heirs, executors and administrators, covenant, promise and agree to and with the said parties of the first VOL. VIII. 9 N. Y. Court of Appeals-Leavitt v. Blatchford and others. and third parts, and their respective successors and assigns, that they, the said Richard M. Blatchford and James B. Murray shall and will well and faithfully, and with all due care and diligence, execute the several TRUSTS hereby created and declared according to the true intention hereof. AND IT IS HEREBY FURTHER DECLARED AND AGREED, by and between the said parties, and particularly by the said North American Trust and Banking Company, that in case default shall be made in the payment of the said certificates of deposit as aforesaid, the said Richard M. Blatchford and James B. Murray, or the survivor of them, his heirs, executors and administrators, shall have, and they or he are and is hereby declared to have full and absolute power and authority to compel the payment of the said bonds, mortgages, and other the premises so assigned, in the same manner, and exercise the same power as the said North American Trust and Banking Company would have if the said securities had not been assigned. And also, to BORROW MONEY upon and to sell and dispose of the said stocks, bonds and mortgages, and premises absolutely, and to convey, transfer and assign the same to the purchaser or purchasers thereof respectively, without any concurrence of consent by and from the said North American Trust and Banking Company, and to do all acts, matters and things which may be required or deemed necessary by and on the part of the said North American Trust and Banking Company, to receive the purchase or consideration money, and to give receipts for the same, and for perfecting and completing the title of the purchaser or purchasers thereof respectively, his or their heirs, executors, administrators and assigns. And also, the said Richard M. Blatchford and James B. Murray, trustees as aforesrid, are hereby empowered and authorized in their discretion, at any time during the existence of the trusts hereby created, to take all necessary legal proceedings for the collection of the moneys due and payable upon the said securities, or any or either of them; and the proceeds of such collections, and all moneys derived from said securities to be paid over and accounted for at once to the said Palmers, Mackillop, Dent & Co., or any other parties who shall at the time of such payment, be the holders of such certificates of deposit, on account thereof, such payments to be endorsed upon such certificates, or a portion of them, equal to the amount so paid, to be surrendered to the said Richard M. Blatchford and James B. Murray, or the survivor of them, to be cancelled. It is also understood, and hereby stipulated and agreed by the said North American Trust and Banking Company, that they will at all times protect the said parties of the second and third parts against the incumbrances upon the real estate covered by the mortgages mentioned in said schedule, and prior to such mortgages. IN WITNESS WHEROF, to three parts of this agreement, one remaining with each of the parties of the first, second and third parts, the parties to these presents have hereto set their hands and seals. And the said parties of the first part have caused the same to be signed by N. Y. Court of Appeals.-Leavitt v. Blatchford and others. their president and attested by their cashier, the day and year above written. Sealed and delivered, first in the presence of R. M. BLATCHFORD, JAS. B. MURRAY, [SEAL.] SEAL. PALMERS, MACKILLOP, DENT & CO., [SEAL.] ATTEST: WALTER MEAD, In addition to the certificates for £46,875, secured by this trust deed, another certificate has been given to Messrs. Palmers, Mackillop, Dent and Co., for £2,700 st'g. which is intended to cover the interest, expenses and charges which they are entitled to, up to this period, under and growing out of the credit for £46,875, but as it is not known at this time what such interest, expenses and charges amount to, and certificates for £2,700 st'g is given to be held until the exact amount is ascertained and adjusted, with consent of all the parties, and then it is to represent such exact amount; and the trust hereby created, is for the security of such exact amount when it is ascertained; and until then, for the security of said £2,700, precisely the same as for the other certificates. WALTER MEAD, Cash. 30th November, 1840. THOS. TALMAGE, Prest. R. M. BLATCHFORD, JAS. B. MURRAY. ACT OF MAY 14, 1840. Section 4. "No banking association or individual banker, as such, shall issue or put in circulation any bill or note of said association or individual banker, unless the same shall be made payable on demand, and without interest; and every violation of this section, by any officer or member of a banking association, or by any individual banker shall be deemed and adjudged a misdemeanor, punishable by fine or imprisonment, or both, in the discretion of the court, having cognizance thereof." SAFETY FUND ACT, 1829. § 35. "No moneyed corporation, subject to the provisions of this act shall issue any bill or note of the said corporation, unless the same shall be made payable on demand and without interest." N. Y. Court of Appeals-Barney v. Griffin and others. HIRAM BARNEY V. FRANCIS GRIFFIN AND OTHERS. FRAUDULENT ASSIGNMENT. An assignment by an insolvent debtor of all his property in trust to pay certain specified creditors; and then-(without making any provision for other creditors) in trust to re-convey the residue of the property to the debtor held to be a fraud upon the creditors who are not provided for by the deed. THE points adjudicated on, sufficiently appear in the opinion of the court. Bronson, J.-This was an assignment by an insolvent debtor of all his property in trust to pay certain specified creditors; and then without making any provision for other creditors, in trust to re-convey the residue of the property to the debtor. We need go no farther to see that this was a fraud upon the plaintiff, and the other creditors who were not provided for by the deed. The property was placed beyond the reach of their judgments and executions, in the hands of men who were not accountable to them, and upon a trust which was, in part, for the benefit of the debtor. The court have very reluctantly upheld general assignments by an insolvent debtor, which give a preference among creditors, (Boardman v. Halliday, 10 Paige, 229, 230) and they can only be supported when they make a full and unconditional surrender of the property to the payment of debts. The debtor can neither make terms, nor reserve any thing to himself, until after all the creditors have been satisfied. This question was considered upon authority in Goodrich v. Downes, (6 Hill 238,) and we think the case was properly decided. The deed was void upon its face, and it cannot be made good by showing that there will be no surplus for the debtor, after paying the preferred creditors. The parties contemplated a surplus, and provided for it; and they are not now at liberty to say that this was a mere form, which meant nothing. And although it should ultimately turn out that there is no surplus, still the illegal purpose which destroys the deed is plainly written on the face of the instrument, and there is no way of getting rid of it. The cases already cited, of Goodrich v. Downes, and Boardman v. Halliday, are in point upon this question. It is also an unanswerable objection to the deed, that the assignees are authorized to sell the property on credit. An insolvent debtor cannot, under color of providing for creditors, place his property beyond their reach, in the hands of trustees of his own selection, and to take away the right of the creditors to have the property converted into money for their benefit, without delay. They have the right to determine for themselves whether the property shall be sold on credit; and a conveyance which takes away that right, and places it in the hands of the debtor, or in trustees of his own selection, comes within the very words of the statute; it is a conveyance to hinder and delay creditors, English Cases. and cannot stand. This question was considered by the Chancellor in Meacham v. Steines, (9 Paige, 405-6,) and his views fully accord with my own. There is a third objection to the deed. The property is not only charged with the payment of "all costs, charges, disbursements and expenses" in executing the trust, but the trustees are also to have "a commission of six per cent. on the gross amount of the moneys received and paid by them." If the debtor can provide for any thing more than the necessary expenses of executing the trust, I think he cannot go beyond the commissions allowed by law to executors, administrators and guardians for similar services; (See Meacham v. Steines, 9 Paige, 398,) while, considering the magnitude of the estate, is much less than the trustees are to receive. (2 R. S. 93, § 58, p. 153, $22.) It may be very true, as the answer alleges, that the commissions allowed by the deed are "no more than a just, fair and proper compensation to three men, all actively engaged in professional pursuits." But unless something was to be done besides winding up the estate without delay for the benefit of creditors, it was not necessary to have three trustees; and a competent agent might have been found who would not have required a very large commission on account of the value of his time for professional pursuits. If an insolvent debtor should be allowed to give a large reward to the friends whom he selects and puts in the place of the process and officers of justice, it would not only divert a portion of the property from those who ought to have it; but it might induce the assignees to consult the interest of the debtor at the expense of the creditors. This objection, standing alone, may not go beyond the excess of commissions. But we think the deed wholly void on the other grounds which have been mentioned. SELECTIONS FROM RECENT ENGLISH DECISIONS. Eourt of Common Pleas. THOROWGOOD, adm'x., v. BRYANT.-20th June, 1849. COMPENSATION FOR DEATH BY ACCIDENT. In an action for compensation to administratrix for testator's death, which was alleged to have been caused by the defendant's neglect, the judge who presided at the trial directed the jury that if in their opinion the death happened from pure accident, or might have been avoided by due care on the part of the deceased, or the driver of the omnibus in which he rode, they would find for the defendant; and that if the death was attributable to the neglect of the defendant's servant, to find for the plaintiff. Held, a right direction and rule nisi for new trial was discharged. THIS action was brought by the widow of Mr. Thorowgood, under the 9th and 10th Vict. c. 93, s. 2, as administratrix of the deceased, to |