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institutions make no pretense of engaging | respondence which he claims were seized by in the business, and hence arises the duty of the officers in his rooms, in violation of the the state to protect the unfortunate victim constitutional guaranties against unreasonaof rapacity so far as it is practicable. It ble searches. Whatever may be the rule in requires no argument to establish the truth the federal courts, it has been repeatedly held that this is a proper exercise of the police in state courts that evidence thus obtained power. The state owes a duty in this regard is not thereby rendered inadmissible. State just as clearly as it does to protect the ig- v. McDaniel, 39 Or. 161, 65 Pac. 520; State norant and the unwary from the machination v. Wilkins, 72 Or. 77, 142 Pac. 589; 1 Bishof the confidence man or the extortion of the op's New Cr. Proc. § 211. In 1 Greenleaf on highwayman, and if the lender under such Ev. § 254, the rule is stated thus: circumstances is a nonresident of the state he may work through devious methods to accomplish his purpose and laugh at the statutory efforts of law enforcement. We conclude that the statute under consideration is not subject to the objection suggested.

"It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue. The court will not [2] We next consider the question as to lawfully or unlawfully, nor will it form an issue take notice how they were obtained, whether to determine that question."

Sec

whether or not the act is unconstitutional as
being discriminatory class legislation.
tion 8 thereof reads as follows:

"That nothing contained in this act shall be held to apply to the legitimate business of state and national banks, licensed bankers, trust companies, savings banks, building and loan associations, or real estate brokers."

Speaking of a somewhat similar statute, the United States Supreme Court, speaking by Mr. Justice McKenna, says:

It is further complained that the court erred in permitting a cross-examination of the defendant upon matters upon which he was not questioned in his direct examination. We have examined the record very carefully, and while it is long and it is not necessary to set it out herein, we may say that we find the cross-examination of the defendant confined to matters germane to his direct testimony, and therefore proper.

[4] This brings us to a consideration of a question which was raised for the first time in the argument of the case in this court. The indictment, as has already been noted, was based upon chapter 278 of the Session Laws of 1913, and the trial, conviction, and sentence were all accomplished while that act was in force. Thereafter, and while the appeal herein was pending, the Legislative Assembly of 1915 passed a new statute, chapter 219, Session Laws of 1915, which expressly repeals chapter 278, supra. The later act, like the former, begins with the following words:

"This contention attacks section 6 of the statute which exempts from its provisions certain banks, banking institutions and loan companies. It is urged that the provision is discriminatory and therefore denies to plaintiff the equal protection of the laws. We have declared so often the wide range of discretion which the Legislature possesses in classifying the objects of its legislation that we may be excused from a citation of the cases. We shall only repeat that the classification need not be scientific nor logically appropriate, and if not palpably arbitrary and is uniform within the class, it is within such discretion. The legislation under review was directed at certain evils which had arisen, and the Legislature, considering them and from whence they arose, might have thought or discerned that they could not or would not arise from a greater freedom to the institutions mentioned than to individuals. This was the view that the Supreme Judicial Court took, and, we think, rightly took. The court said that the Legislature might have decided that the dangers which the statute was intended to prevent would not exist in any considerable degree in loans made by institutions which were under the supervision of bank commissioners, and 'believed rightly that the business done by them would not need regulation in the interest of employés in both laws, with the exception that in the The requirements as provided are identical or employers.' But even if some degree of evil which the statute was intended to earlier act, the annual license fee is $50, prevent could be ascribed to loans made by the while in the later one it is increased to $100. exempted institutions, their exception would not The only other changes in the later act are make the law unconstitutional. Legislation may recognize degrees of evil without being arbitrary, directed to additional details as to the conduct unreasonable, or in conflict with the equal pro- of such business after a license has been tection provision of the Fourteenth Amendment procured. Both laws require the application to the Constitution of the United States." Mutual Loan Co. v. Martell, 222 U. S. 225, 235, 32 Sup. Ct. 74, 75 (56 L. Ed. 175, Ann. Cas. 1913B, 529).

We regard this quotation from the highest court of our country as a wise and correct declaration of the true doctrine of interpretation.

[3] We come then to a consideration of defendant's contention that the court erred in admitting in evidence certain papers and cor

"That hereafter it shall be unlawful to engage in the business of making loans of money or of personal credit upon which there is, directly or indirectly, charged or received, interest, discount, or consideration greater than ten per cent. per annum, without first procuring a license as hereinafter provided."

for a license to be made to the state banking board and give such board power to reject such application upon proper notice and a public hearing "before issuing such license," so we are not left in doubt as to the authority which is to issue the same. In brief, as has already been observed, there is, up to the point of securing the license, absolutely no change in the later act, other than an increase in the amount of the annual fee to be

paid by the applicant, and, therefore, since
the defendant never paid any fee nor secured
any license, there is practically no change
in the law so far as it affects this case. We
are then to consider whether or not the re-
peal of the earlier act and simultaneous re-
enactment of substantially the same provi-
sions necessitates the dismissal of the indict-
ment and discharge of the defendant. We
are unable to find any good, practical reason
for such a contention, since every element
of the law with which the defendant is
charged of violating, is still the law and has
never at any moment since its first enactment
in 1913 ceased to be the law. The only
justification, then, for so holding must be
found in precedent.
In the case of Steam-
ship Company v. Joliffe, 69 U. S. (2 Wall.)
450, 17 L. Ed. 805, we find the following
language:

may be added that this doctrine has been distinctly enunciated by this court in the cases of Renshaw v. Lane County, 49 Or. 526, 89 Pac. 147, and Bayless v. Douglas County, 57 Or. 301, 111 Pac. 384.

[5] Finally it has been urged that the title of chapter 278, supra, is so defective as to render the act void, and the case of State v. Levy, recently decided by this court and reported in 147 Pac. 919, is cited in support of this contention. A careful examination of the enactments discloses, however, that the citation does not support this theory. The title of the act in question reads as follows:

"To regulate the business of loaning money or credit by persons, firms, and corporations other than national banks, licensed bankers, trust sociations, real estate brokers and pawnbrokers." companies, saving banks, building and loan as

The regulation of the business as indicated would naturally and logically connect the state banking board and the state examiner with the management and conduct of administering such regulation, and the provisions are therefore germane to the title. In the case of State v. Levy, supra, there is no logical connection between the powers of a railroad commissioner and the duty of supervising the business of a commission merchant.

The conclusion is that there is no substantial error in the record, and the judgment of the lower court should be affirmed.

BURNETT and MCBRIDE, JJ., dissent. EAKIN, J., did not sit.

(79 Or. 191)

"The new act re-enacts substantially all the provisions of the original act, relating to pilots and pilot regulations for the harbor of San Francisco. It subjects the pilots to similar examinations; it requires like qualifications; it prescribes nearly the same fees for similar services; and it allows half pilotage fees under the same circumstances as provided in the original act. It appears to have been passed for the purpose of embracing within its provisions the ports of Mare Island and Benicia, as well as the port of San Francisco; of creating a board of pilot examiners for the three ports, in place of the board of pilot commissioners for the port of San Francisco alone, and of prohibiting the issue of licenses to any persons who were disloyal to the government of the United States. The new act took effect simultaneously with the repeal of the first act; its provisions may, therefore, more properly be said to be substituted in the place of, and to continue in force with modifications, the provisions of the original act, rather than to have abrogated and annulled them. The observations of Mr. Chief Justice Shaw, in Wright v. Oakley, 5 Metc. (Mass.) 406, upon the construction of the Revised Statutes of Massachusetts, which in terms repealed the previous legislation of the state, may with propriety be applied to the case at bar. 'In construing the Revised Statutes and the connected acts of amendment and repeal, it is necessary to observe great caution to avoid giving an effect to these acts which was never contemplated by the Legislature. In terms, the whole body of the statute law was repealed; but these repeals went into operation simultaneously with the Revised Statutes, which were substituted for them, and were intended to replace them, with such modifications as were intended to be made by that revision. There was no moment in which the repealing act stood in force without An assignment for the benefit of creditors, being replaced by the corresponding provisions reciting that the assignor was engaged in merof the Revised Statutes. In practical operation|chandise business at a named city, and, being and effect, therefore, they are rather to be considered as a continuance and modification of old laws than as an abrogation of those old and the re-enactment of new ones.'

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SABIN v. CHRISMAN, Sheriff, et al. (Supreme Court of Oregon. Feb. 8, 1916.) 1. BANKRUPTCY 9-NATIONAL BANKRUPTCY ACT-EFFECT.

The national Bankruptcy Act July 1, 1898, c. 541, 30 Stat. 544, suspended state laws concerning assignments for the benefit of creditors, leaving such assignments to be governed by the common law.

Cent. Dig. §§ 7-9; Dec. Dig. 9.]
[Ed. Note. For other cases, see Bankruptcy,

2. ASSIGNMENTS FOR BENEFIT OF CREDITORS
175-DESCRIPTION OF PROPERTY ASSIGN-
ED-SUFFICIENCY.

unable to meet his obligations, transferred his assets for the benefit of his creditors consisting of a stock of general merchandise together with all fixtures used in and about the premises and accounts receivable, is sufficient to include a The good practical sense of the above number of stoves, the term "general merchanquotations seems to render further citation of dise" being comprehensive and including whatauthorities unnecessary, for both of the cited ever is usually bought and sold in trade or market by merchants, and the sufficiency of the ascases seem to be precisely in point and to signment is not affected because the goods were furnish ample authority for the conclusion kept in two different stores, the assignee taking that the simultaneous repeal and re-enact-possession (citing Words and Phrases, Merchandise). ment of the provisions under consideration do not constitute such a repeal as would be of any avail to the defendant herein, and it

for Benefit of Creditors, Cent. Dig. §§ 512-554; [Ed. Note.-For other cases, see Assignments Dec. Dig. 175.]

3. ASSIGNMENTS FOR BENEFIT OF CREDITORS | To insure the same against loss by fire. 174-ACTIONS-EVIDENCE.

Whether the property in possession of the agent of an assignee for benefit of creditors was the property intended to be assigned held, under the evidence, for the jury.

[Ed. Note.-For other cases, see Assignments for Benefit of Creditors, Cent. Dig. § 512; Dec. Dig. 174.]

4. ASSIGNMENTS FOR BENEFIT OF CREDITORS 34 — VALIDITY-DELAYING OF CREDI

TORS.

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There being no statute law governing assignments for benefit of creditors, a debtor may assign his property for the purpose of paying his debts, though the effect of such assignment may hinder and delay some creditors in the collection of their demands; it being sufficient if the transaction is fair and without fraud, the law requiring no more of a debtor unable to pay all of his creditors than that he devote all of his assets to such purpose.

[Ed. Note.-For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 33, 3661; Dec. Dig. 34.] 5. REPLEVIN 63 FRAUD.

ACTIONS

ANSWERWhere defendant questioned the validity of an assignment for benefit of creditors, under which plaintiff in replevin claimed, on the ground of fraud, such fraud must be set up in

the answer.

[Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 225-238; Dec. Dig. 63.]

(3)

To sell and dispose of said stock of merchandise at retail sales or in bulk as may to the said party of the second part seem most advantageous and to collect said notes and accounts by legal process or otherwise. (4) Out of the proceeds arising from said sales and collections to pay. the actual and necessary expense incurred in carrying out this trust. (5) Out of the proceeds to pay all the creditors of said party of the first remaining after the payment of such expenses part in full, if sufficient funds be realized therefor, and if not then pro rata in accordance with mands of said creditors and without preference the amounts of the respective claims and deexcept such as is fixed by law. (6) To return the overplus, if any there be, to the said party of the first part. In witness whereof the said party of the first part has hereunto set his hand at Portland, Oregon, this 15th day of August, 1914. P. Perlman."

Plaintiff, by his agent Foster, took possession of the stock of goods in both stores, and subsequently the sheriff, Levi Chrisman, acting upon an execution issued upon a judgment in favor of the Portland Association of Credit Men. against P. Perlman, levied upon a number of stoves situated in the hard-, ware store, and by arrangement with plaintiff's agent, who protested against the levy, left them in the store, but separate from oth

er goods therein, in charge of one Fine, a clerk in the store, to hold for him as sheriff. The building, without any fault of the sheriff so far as appears, was burned, and the prop

Department No. 1. Appeal from Circuit Court, Wasco County; W. L. Bradshaw, Judge. Action by R. L. Sabin against Levi Chris-erty so levied upon was destroyed. Thereman, Sheriff of Wasco County, and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

One P. Perlman was engaged in business at The Dalles, Or., conducting two stores; one containing a stock of general merchandise, consisting of clothing, etc., and the other containing furniture, hardware stores, and goods of like character. Being unable to meet his obligations in the ordinary course of business, he made the following conveyance or bill of sale to R. L. Sabin:

"Know all men by these presents, that whereas, P. Perlman, engaged in mdse. business at The Dalles, Oregon, party of the first part, is unable to meet his obligations in full in the ordinary course of business, and desires to transfer his assets in trust for the benefit, pro rata, of his creditors in order to avoid litigation and court proceedings: Now, therefore, in consideration of the premises and of the sum of one dollar ($1.00) and other good and valuable considerations to him in hand paid by R. L. Sabin, of Portland, Oregon, party of the second part, the receipt whereof is hereby duly acknowledged, the said party of the first part does hereby sell, assign, set over, and transfer unto the said party of the second part all of the following describe ed personal property, to wit: A stock of general merchandise located at The Dalles, Oregon, together with all fixtures used in and about said business. Also all accounts and bills receivable, due, and owing or to become due and owing to said party of the first part. To have and to hold all of the described personal property unto the said party of the second part, his representatives and assigns forever. This transfer is made nevertheless in trust for the uses and purposes following, to wit: (1) To take possession of all of said personal property. (2)

upon the sheriff, against the protest of the agent of plaintiff, levied upon a sufficient quantity of dry goods in the general merchandise store to satisfy the exigency of his writ, and took them away and still holds them; and plaintiff brought this action of replevin, alleging the conveyance from Perlman to himself and his ownership of the property. Defendants answered denying plaintiff's ownership and right to possession, alleging that Perlman was the owner and justified under his writ. Upon the trial there was a directed verdict for defendants, and plaintiff appeals.

Sidney Teiser, of Portland, for appellant. M. W. Seitz, of Portland (Seitz & Clark, of Portland, and J. W. Allen, of The Dalles, on the brief), for respondents.

MCBRIDE, J. (after stating the facts as above). [1] The laws of this state concerning assignments for the benefit of creditors are suspended by the United States Bankruptcy Act. Pelton v. Sheridan, 74 Or. 176, 144 Pac. 410, 33 Am. Bankr. Rep. 472. This being the case, the sufficiency of the assignment must be judged by those rules of law generally in force in this country prior to the enactment of our state statutes.

[2, 3] Does the deed of assignment sufficiently describe the property? It appears that there were two stores operated by Perlman at The Dalles. The assignment, after reciting that the assignor is "engaged in merchandise business at The Dalles, Or., is un

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

able to meet his obligations in full in the ordinary course of business, and desires to transfer his assets in trust for the benefit, pro rata, of his creditors," does assign to R. L. Sabin as trustee, etc., "a stock of general merchandise located at The Dalles, Or., together with all fixtures used in and about said business; also, all accounts and bills receivable and owing or to become due and owing to the party of the first part." We think this is a sufficient identification of the property when it appears, as it does here, from plaintiff's testimony, that the agent of the assignee was in possession of both stores and protesting against a levy by the sheriff. "General merchandise" is a comprehensive term, and includes whatever is usually bought and sold in trade or market by merchants. It includes all those things which they sell either at wholesale or retail, as dry goods, hardware, groceries, drugs, etc. Words and Phrases, tit. Merchandise. So that whether Perlman's goods were stoves or stockings, furniture or furs, they are all equally comprehended in the term "merchandise"; and whether the stock was kept in one building in The Dalles or in two makes no difference, if, in fact, the assignee took possession of what was intended to be conveyed. In the case at bar, we think there was some evidence tending to show that the property in the possession of Foster, plaintiff's agent, was the property intended to be conveyed by the assignment, and that therefore that matter was a question of fact for the jury; and, unless there is found some other reason why the court should have taken the case from them, it committed error in so doing.

The right to transfer property is an incident naturally flowing from the right to acquire and hold it; this right being subject to the further restriction that assignments by a debtor of the whole or a greater part of his property should not be employed as a means of preserving it for his own use or benefit or of unduly protecting it from the remedies of his creditors. Burrill on Assignments, §§ 9, 13. The following excerpts from decisions upon this question are embodied in a note to the last section and give the general spirit of the decisions from which they are taken:

"Every debtor has a legal right to assign property for the security of the debts due him, and so far from such an act being reprehended by the law, it is justified and approved.' Story, J., in Brown v. Minturn, 2 Gall. 557, 559 [Fed. Cas. No. 2,021]. General assignments are spoken of by the same judge as 'encouraged by the 206, 210 [Fed. Cas, No. 5,964]. See, also, Bascommon law.' Halsey v. Whitney, 4 Mason, com v. Rainwater, 30 Mo. App. 483; Bryce v. Foot, 25 S. C. 467; Hauselt v. Vilmar, 76 N. Y. 630; Barton v. Brent, 87 Va. 385, 13 S. E. 311]. A conveyance in trust to pay debts is a 29; Hyde v. Weitzner, 45 Minn. 35 (47 N. W. valid conveyance founded on a good consideration.' Kent, C., in Dey v. Dunham, 2 Johns. that an insolvent debtor may, at any time, be'It is settled Ch. [N. Y.] 182, 189. fore his property becomes bound by any lien, assign it over to trustees, for the benefit of all The his creditors, by an act made bona fide. assignment is to be referred to an act of duty, attached to his character of debtor, to make the fund available for the whole body of the creditors.' Kent, C., in Nicoll v. Mumford, 4 Johns. debtor to make an assignment for the benefit of Ch. (N. Y.) 522, 529. The right of an insolvent his creditors, before the property is bound by any lien, does not admit of question, provided it be bona fide.' 2 Tucker's Com. (443) 432. The right to make a general assignment of all a man's property results from that absolute ownership which every man claims over that which is his own.' Marshall, C. J., in Brashear v. Garland, J., in United States v. Bank of UnitWest, 7 Pet. [U. S.] 608, 614 [8 L. Ed. 801]. ed States, 8 Rob. (La.) 262, 404: 'I think that where an assignment is for the benefit of all the creditors of the assignor, equalof every enlightened tribunal. ly and ratably, it must command the sanction It is

* * *

[4] In considering the questions raised upon this appeal, we must ignore our own statute concerning insolvency assignments and treat them as though they never existed, because, as decided in Pelton v. Sheridan, supra, such statutes are suspended and of no effect until the Congress of the United States shall have repealed the present Bankruptcy Law. Neither must we confuse an assign-a practical enforcement of the maxim that ment of the character of that made in the "equality is equity." Buckner, C., in Robins instant case with those which stipulate for V. Embry, Smedes & M. Ch. [Miss.] 207. 258. See Malcolm v. Hall, 9 Gill [Md.] 177 [52 Am. a final release when the proceeds of the Dec. 688]. And see the opinion of Bennett, J., assigned property shall have been exhausted, in Hall v. Denison, 17 Vt. 310; and Ewing, J., or with those in the nature of composition in Vernon v. Morton, 8 Dana [Ky.] 247, 251. deeds which require the signatures of cred- N. B. R. 440 [91 U. S. 496, 23 L. Ed. 377]: Mr. Justice Field, in Mayer v. Hellman, 13 itors before becoming effective. In the pres- 'Whenever such a disposition has been volunent suspended condition of our assignment tarily made by the debtor, the courts in this law, we have no limitation upon the power bation of the proceeding.' country have uniformly expressed their approMr. Justice Buof a debtor to assign his property for the chanan, in State v. Bank of Maryland, 6 Gill & purpose of paying his debts, or for the pur-J. 217 [26 Am. Dec. 561]: 'Equality is equity, pose of paying a particular debt where there are several beyond the general equitable requirement that the transaction must be fair, bona fide, and without fraud.

"It would seem," says Chief Justice Marshall, in Sexton v. Wheaton, 8 Wheat. (U. S.) 229, 5 L. Ed. 603, "to be a consequence of that absolute power which a man possesses over his own property, that he may make any disposition of it which does not interfere with the existing rights of others, and such disposition, if it be fair and

and when a debtor makes a transfer of his propamong his creditors, he does an honest act, and erty for the fair purpose of equal distribution discharges a moral duty. See Kalkman v. MeElderry, 16 Md. 60. Mr. Justice Bailey, in Hoffman v. Mackall, 5 Ohio St. 124 [64 Am. Dec. 637]; Forbes v. Scannell, 13 Cal. 242.”

Section 146, Freeman on Executions, is to the same effect. He says:

"It seems to be unanimously conceded that an assignment to a trustee for the benefit of cred

"The creditors may reject the beneficiary interest given to them by the assignment, and, if they do, it falls to the ground, and becomes a resulting trust for the debtor. But if the trust is for their benefit, the law presumes their assent to it until the contrary is shown. Whether the beneficiaries in the trust deed are apprised of the conveyance or not is not material. When it comes to their knowledge they are entitled to accept or reject its provisions. An express avowal of that assent is not necessary to the operation of the assignment, for the deed is complete when executed by the parties to it. If an assent is expressly given, it operates retroactively to confirm the conveyance ab initio. Even without such assent the assignment will prevail over a subsequent execution or attachment. If one cestui que trust renounces the trust. then it either inures solely to the benefit of the rest, or, if there are no others, it results to the debtor. But until the renunciation is made, or implied from circumstances, the trust continues."

sence of statutory prohibition, valid. It oper- such cases there is a competent grantor to conates to withdraw the property from the reach vey and a competent grantee to take the propof all liens and processes taking effect subse-erty. As to trusts created for the benefit of quently to the execution of the transfer. In creditors, and to which they are not, technically other words, although such a transfer neces- speaking, parties, if bona fide made, they are sarily tends to hinder and delay creditors, by unquestionably valid, and pass a legal estate to depriving them of the right to take the debtor's the trustee. The sole question that can arise, property in execution, and apply its proceeds independent of the bankrupt law, is whether to the payment of their debts, yet, as the cred- the conveyance is bona fide or fraudulent." itor had the right to directly turn over his prop- Bump on Fraudulent Conveyances, p. 324. erty to his creditors, in satisfaction of their de mands, he is allowed to accomplish the same reThe same authority also observes: sult through the intervention of a trustee. To deny the right to hinder creditors, in a certain sense, would be to deny the right to make an assignment for the benefit of creditors, for such assignment, if given any operation, must necessarily prevent some of the creditors from reaching under execution or attachment property which they could have reached but for such assignment. And the assignor may have foreseen and intended this result. He may have desired to prevent the sacrifice of his assets, which must inevitably attend their immediate seizure and sale under execution. To this extent he has the right to hinder his creditors, and the assignment is not rendered void thereby, provided the hindrance is only such as results from turning over the property in good faith, to be applied to the satisfaction of his debts. If, however, the hindering of creditors was the object rather than the incident of the assignment; if the assignment was resorted to as a mere device to gain time or to coerce the creditors, or some of them, into making some settlement of their claims, to which the assignor was not legally entitled-it is doubtless void. In the absence of any statutory inhibition, a debtor may prefer any one or more of his creditors, either by making payment of his liabilities to them or by turning over property to them to be held as security, or to be applied at once at an agreed value, or by means of a sale, to the extinction of the debt. In many of the states, statutes have been enacted forbidding preferences in assignments for the benefit of creditors; but, in the absence of such statutes, the preferring of any creditor or class of creditors, if free from any fraudulent intent, does not render the assignment fraudulent nor void. The fact that some of the creditors are preferred to others will doubtless cause an assignment to be viewed with suspicion, and may, when combined with other suspicious circumstances, produce the conviction that it was intended to defraud the other creditors. Of course, if any actual design to defraud taints the assignment, it is void. There are several things which, when connected with an assignment, are well-established badges of fraud, and some of which render the assignment fraudulent per se. The most prominent of these will now be mentioned. An assignment will not be allowed to withdraw property from the reach of the creditors, that it may, to any extent, be secured for the benefit of the assignor. He must part with all interest in the property, except his right to such surplus as may remain after satisfying the demands of his creditors. Hence, when it appears that the debtor has reserved some portion of the property, or some interest therein, for his own benefit; or that he stipulates for some benefit or advantage for himself or for his family, to be reserved out of the proceeds-it is evident that he thereby seeks to withdraw something of value from the reach of his creditors, and the assignment is fraudulent per se."

Nor is there any need of assent on the part of creditors to render the assignment valid: "To the creation of a trust by deed in favor of any person, it is not necessary that the cestui que trust should either be a party or assent to it.

It is clear that trusts may law fully be created where there can be no present assent, for they may be in favor of persons not in existence. It is sufficient in general that in

The assent of creditors will be presumed unless they, by some affirmative act, signify their dissent, and in such case it would seem that such dissent does not render the conveyance void as to those not dissenting or even to render the property conveyed liable to a subsequent execution by a dissenting creditor. Nor is such an assignment, if honestly made, void for the reason that it tends to hinder and delay creditors in the collection of their demands. The reason for this rule is thus stated:

"Although the intent to deprive all or particular creditors of their lawful suits, and hinder and delay them in the recovery of their just demands, is confessed or proved, still the assignment, if by its terms all the property which it embraces must be applied ratably or otherwise to the payment of debts, is upheld as valid and effectual. The mere intent to avoid an execution or other legal process does not in point of law make it void. Ît may even be made on the same day that a verdict is rendered against the assignor, or the claim of the creditor assailing it may be specially in the contemplation of the debtor. It will not in such case be void, even as against the persons who are in fact very materially hindered and delayed, and were meant to be so. It is valid even against the creditors whom it deprives, and is intended to deprive of that full satisfaction of their debts which by their superior diligence in prosecuting their suits they would otherwise have certainly obtained. The explanation is that, although in these cases the intent to hinder and delay the creditors is manifest, it is just as certain that there is no intent to cheat or defraud them, and the reasonable construction of the statute is that it is only such a hindrance or delay as is intended to operate, or, if permitted, could operate as a fraud upon the creditors, that was meant to be prohibited. All the law can reasonably demand of a debtor is the faithful application of his entire property to the satisfaction of his debts, and where, by the terms of the assignment, this is secured, the hindrance or delay which they create, however they may operate to the prejudice of particular creditors,

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