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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 "It may be mentioned in this place, that he may work through devious methods to though papers and other subjects of evidence accomplish his purpose and laugh at the stat
may have been illegally taken from the posses
sion of the party against whom they are offerutory efforts of law enforcement. We con
ed, or otherwise unlawfully obtained, this is no clude that the statute under consideration is valid objection to their admissibility if they not subject to the objection suggested.
are pertinent to the issue. The court will not  We next consider the question as to
take notice how they were obtained, whether
lawfully or unlawfully, nor will it form an issue whether or not the act is unconstitutional as to determine that question." being discriminatory class legislation. Sec
It is further complained that the court tion 8 thereof reads as follows: "That nothing contained in this act shall be
erred in permitting a cross-examination of held to apply to the legitimate business of state
the defendant upon matters upon which he and national banks, licensed bankers, trust com- was not questioned in his direct examination. panies, savings banks, building and loan asso
We have examined the record very carefully, ciations, or real estate brokers.”
and while it is long and it is not necessary to Speaking of a somewhat similar statute, / set it out herein, we may say that we find the United States Supreme Court, speaking the cross-examination of the defendant conby Mr. Justice McKenna, says:
fined to matters germane to his direct testi"This contention attacks section 6 of the stat- | mony, and therefore proper. . ute which exempts from its provisions certain banks, banking institutions and loan companies.
|  This brings us to a consideration of a It is urged that the provision is discrimina- question which was raised for the first time tory and therefore denies to plaintiff the equal in the argument of the case in this court. protection of the laws. We have declared so
The indictment, as has already been noted, often the wide range of discretion which the
ature possesses in classifying the objects was based upon chapter 278 of the Session of its legislation that we may be excused from Laws of 1913, and the trial, conviction, and a citation of the cases. We shall only repeatse
sentence were all accomplished while that act that the classification need not be scientific nor logically appropriate, and if not palpably
was in force. Thereafter, and while the aparbitrary and is uniform within the class, it is peal herein was pending, the Legislative Aswithin such discretion. The legislation under | sembly of 1915 passed a new statute, chapter review was directed at certain evils which had
219, Session Laws of 1915, which expressly arisen, and the Legislature, considering them and from whence they arose, 'might have thought repeals chapter 278, supra. The later act, or discerned that they could not or would not like the former, begins with the following arise from a greater freedom to the institutions words: mentioned than to individuals. This was the view that the Supreme Judicial Court took, and,
| “That hereafter it shall be unlawful to engage we think, rightly took. The court said that the in the business of making, loans of money Legislature might have decided that the dangers
personal credit upon which there is, directly or which the statute was intended to prevent would
indirectly, charged or received, interest, disnot exist in any considerable degree in loans
count, or consideration greater than ten per made by institutions which were under the su
cent. per annum, without first procuring a lipervision of bank commissioners, and believed | cense as hereinafter provided." rightly that the business done by them would! The requirements as provided are identical not need regulation in the interest of employés or employers.' * * * But even if some de
edes in both laws, with the exception that in the gree 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 make the law unconstitutional. Legislation may
The only other changes in the later act are 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,
for a license to be made to the state banking 32 Sup. Ct. 74, 75 (56 Ú. Ed. 175, Ann. Cas. board and give such board power to reject 1913B, 529).
such application upon proper notice and a We regard this quotation from the high- public hearing “before issuing such license," est court of our country as a wise and correct so we are not left in doubt as to the authordeclaration of the true doctrine of interpreta ity which is to issue the same. In brief, as tion.
has already been observed, there is, up to the (3) We come then to a consideration of point of securing the license, absolutely no defendant's contention that the court erred in change in the later act, other than an inadmitting in evidence certain papers and cor- | crease in the amount of the annual fee to be paid by the applicant, and, therefore, since, may be added that this doctrine has been the defendant never paid any fee nor secured distinctly enunciated by this court in the any license, there is practically no change cases of Renshaw v. Lane County, 49 Or. 526, in the law so far as it affects this case. We 89 Pac. 147, and Bayless v. Douglas County, are then to consider whether or not the re- 57 Or. 301, 111 Pac. 384. peal of the earlier act and simultaneous re-  Finally it has been urged that the title enactment of substantially the same provi- of chapter 278, supra, is so defective as to sions necessitates the dismissal of the indict-render the act void, and the case of State ment and discharge of the defendant. Wev. Levy, recently decided by this court and are unable to find any good, practical reason reported in 147 Pac. 919, is cited in supfor such a contention, since every element port of this contention. A careful examinaof the law with which the defendant is tion of the enactments discloses, however, charged of violating, is still the law and has that the citation does not support this theory. never at any moment since its first enactment The title of the act in question reads as in 1913 ceased to be the law. The only follows: justification, then, for so holding must be “To regulate the business of loaning money or found in precedent. In the case of Steam-credit by persons, firms, and corporations other ship Company v. Joliffe, 69 U. S. (2 Wall.)
than national banks, licensed bankers, trust
companies, saving banks, building and loan as450, 17 L. Ed. 805, we find the following
sociations, real estate brokers and pawnbrokers." language:
The regulation of the business as indicat"The new act re-enacts substantially all the
ed would naturally and logically connect the provisions of the original act, relating to pilots and pilot regulations for the harbor of San state banking board and the state examiner Francisco. It subjects the pilots to similar ex- with the management and conduct of adminaminations; it requires like qualifications; it
istering such regulation, and the provisions prescribes nearly the same fees for similar seryices; and it allows half pilotage fees under |
are therefore germane to the title. In the the same circumstances as provided in the origi- case of State v. Levy, supra, there is no nal act. It appears to have been passed for the logical connection between the powers of a purpose of embracing within its provisions the ports of Mare Island and Benicia, as well as the
railroad commissioner and the duty of superport of San Francisco; of creating a board of vising the business of a commission merchant. pilot examiners for the three ports, in place of The conclusion is that there is no substanthe board of pilot commissioners for the port of
tial error in the record, and the judgment of San Francisco alone, and of prohibiting the issue of licenses to any persons who were disloyal
the lower court should be affirmed. to the government of the United States. The new act took effect simultaneously with the re- BURNETT and MCBRIDE, JJ., dissent peal of the first act; its provisions may, therefore, more properly be said to be substituted in
TEAKIN, J., did not sit. the place of, and to continue in force with modifications, the provisions of the original act. rather than to have abrogated and annulled them.
(79 Or. 191) The observations of Mr. Chief Justice Shaw, in Wright v. Oakley, 5 Metc. (Mass.) 406, upon SABIN v. CHRISMAN, Sheriff, et al. the construction of the Revised Statutes of Massachusetts, which in terms repealed the pre
(Supreme Court of Oregon. Feb. 8, 1916.) vious legislation of the state, may with proprie- 1. BANKRUPTCY 9-NATIONAL BANKRUPTty be applied to the case at bar. 'In construing
CY ACT-EFFECT. the Revised Statutes and the connected acts of
The national Bankruptcy Act July 1, 1898, amendment and repeal, it is necessary to ob- c. 541, 30 Stat. 544, suspended state laws conserve great caution to avoid giving an effect to cerning assion
cerning assignments for the benefit of creditors, these acts which was never contemplated by leaving such assignments to be governed by the the Legislature. In terms, the whole body of
common law. the statute law was repealed; but these re- [Ed. Note.-For other cases, see Bankruptcy, peals went into operation simultaneously with
Cent. Dig. $$ 7-9; Dec. Dig. 9.] the Revised Statutes, which were substituted for them, and were intended to replace them, 2. ASSIGNMENTS FOR BENEFIT OF CREDITORS with such modifications as were intended to be C175DESCRIPTION OF PROPERTY ASSIGNmade by that revision. There was no moment ED-SUFFICIENCY. 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 mer. of the Revised Statutes. In practical operation chandise business at a named city, and, being and effect, therefore, they are rather to be con- unable to meet his obligations, transferred his sidered as a continuance and modification of old assets for the benefit of his creditors consisting laws than as an abrogation of those old and the of a stock of general merchandise together with re-enactment of new ones.'”
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 mar
I ket 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, Merchanment of the provisions under consideration do
Ed. Note.-For other cases, see Assignments not constitute such a repeal as would be of for Benefit of Creditors, Cent. Dig. 88 512-154; any avail to the defendant herein, and it (Dec. Dig. 175.)
3. ASSIGNMENTS FOR BENEFIT OF CREDITORS | To insure the same against loss by fire. (3) Om 174ACTIONS-EVIDENCE.
To sell and dispose of said stock of merchandise Whether the property in possession of the at retail sales or in bulk as may to the said paragent of an assignee for benefit of creditorsty of the second part seem most advantageous was the property intended to be assigned held, and to collect said notes and accounts by legal under the evidence, for the jury.
process or otherwise. (4) Out of the proceeds [Ed. Note.-For other cases, see Assignments arising from said sales and collections to pay. for Benefit of Creditors, Cent. Dig. 8 512; Dec. the actual and necessary expense incurred in Dig. 174.)
carrying out this trust. (5) Out of the proceeds
remaining after the payment of such expenses 4. ASSIGNMENTS FOR BENEFIT OF CREDITORS
to pay all the creditors of said party of the first 34 - VALIDITY – DELAYING OF CREDI
part in full, if sufficient funds be realized thereTORS.
for, and if not then pro rata in accordance with There being no statute law governing as
the amounts of the respective claims and designments for benefit of creditors, a debtor may
mands of said creditors and without preference assign his property for the purpose of paying
except such as is fixed by law. (6) To return his debts, though the effect of such assignment
the overplus, if any there be, to the said party may hinder and delay some creditors in the col
of the first part. In witness whereof the said lection of their demands; it being sufficient if
party of the first part has hereunto set his hand the transaction is fair and without fraud, the
lat Portland, Oregon, this 15th day of August, law requiring no more of a debtor unable to 1014"
1914. P. Perlman."
"u pay all of his creditors than that he devote all of his assets to such purpose.
Plaintiff, by his agent Foster, took posses[Ed. Note.-For other cases, see Assignments sion of the stock of goods in both stores, and for Benefit of Creditors, Cent. Dig. 88 33, 36 subsequently the sheriff, Levi Chrisman, act61; Dec. Dig. 34.)
| ing upon an execution issued upon a judg5. REPLEVIN em 13 – ACTIONS — ANSWER
ment in favor of the Portland Association FRAUD.
Where defendant questioned the validity of of Credit Men.against P. Perlman, levied upan assignment for benefit of creditors, under on a number of stoves situated in the hard. which plaintiff in replevin claimed, on the ware store, and by arrangement with plainground of fraud, such fraud must be set up in
tiff's agent, who protested against the levy, the answer. (Ed. Note.-For other cases, see Replevin,
left them in the store, but separate from othCent. Dig. 88 225–238; Dec. Dig. Omw 63.]
er goods therein, in charge of one Fine, a
clerk in the store, to hold for him as sheriff. Department No. 1. Appeal from Circuit
The building, without any fault of the sheriff Court, Wasco County; W. L Bradshaw,
so far as appears, was burned, and the propJudge.
erty so levied upon was destroyed. ThereAction by R. L. Sabin against Levi Chris
upon the sheriff, against the protest of the man, Sheriff of Wasco County, and another.
agent of plaintiff, levied upon a sufficient From a judgment for defendants, plaintiff
quantity of dry goods in the general merchanappeals. Reversed and remanded.
dise store to satisfy the exigency of his writ, One P. Perlman was engaged in business and took them away and still holds them; at The Dalles, Or., conducting two stores; and plaintiff brought this action of replevin, one containing a stock of general merchan- alleging the conveyance from Perlman to dise, consisting of clothing, etc., and the other himself and his ownership of the property. containing furniture, hardware stores, and Defendants answered denying plaintiff's own. goods of like character. Being unable to lership and right to possession, alleging that meet his obligations in the ordinary course Perlman was the owner and justified under of business, he made the following convey- his writ. Upon the trial there was a directed ance or bill of sale to R. L. Sabin:
verdict for defendants, and plaintiff appeals. “Know all men by these presents, that whereas, P. Perlman, engaged in mdse. business at Sidney Teiser, of Portland, for appellant. The Dalles, Oregon, party of the first part, is M. W. Seitz, of Portland (Seitz & Clark, of unable to meet his obligations in full in the ordi
Portland, and J. W. Allen, of The Dalles, nary course of business, and desires to transfer his assets in trust for the benefit. pro rata, of on the brief), for respondents. his creditors in order to avoid litigation and court proceedings: Now, therefore, in consider
MCBRIDE, J. (after stating the facts as tion of the premises and of the sum of one dollar ($1.00) and other good and valuable con-|
| above).  The laws of this state concernsiderations to him in hand paid by R. L. Sabin, ing assignments for the benefit of creditors of Portland, Oregon, party of the second part, the receipt whereof is hereby duly acknowledged,
are suspended by the United States Bankruptthe said party of the first part does hereby sell, cy Act. Pelton v. Sheridan, 74 Or. 176, 144 assign, set over, and transfer unto the said par- Pac, 410, 33 Am. Bankr. Rep. 472. This being ty of the second part all of the following describ
the case, the sufficiency of the assignment ed personal property, to wit: A stock of general merchandise located at The Dalles, Oregon,
must be judged by those rules of law genertogether with all fixtures used in and about ally in force in this country prior to the ensaid business. Also all accounts and bills re-actment of our state statutes. ceivable, due, and owing or to become due and owing to said party of the first part.
[2, 3] Does the deed of assignment suffi
To have and to hold all of the described personal proper.
ciently describe the property? It appears ty unto the said party of the second part, his that there were two stores operated by Perl. representatives and assigns forever. This trans. man at The Dalles. The assignment, after fer is made nevertheless in trust for the uses and purposes following, to wit: (1) To take reciting that the assi
reciting that the assignor is “engaged in merpossession of all of said personal property. (2) chandise business at The Dalles, Or., is un
mFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
able to meet his obligations in full in the The right to transfer property is an inordinary course of business, and desires to cident naturally flowing from the right to transfer his assets in trust for the benefit, acquire and hold it; this right being subject pro rata, of his creditors," does assign to R. to the further restriction that assignments L. Sabin as trustee, etc., “a stock of general by a debtor of the whole or a greater part of 'merchandise located at The Dalles, Or., to his property should not be employed as a gether with all fixtures used in and about means of preserving it for his own use or said business; also, all accounts and bills benefit or of unluly protecting it from the receivable and owing or to become due and remedies of his creditors. Burrill on Assignowing to the party of the first part.” We ments, ss 9, 13. The following excerpts from think this is a sufficient identification of the decisions upon this question are embodied in property when it appears, as it does here,' a note to the last section and give the genfrom plaintiff's testimony, that the agent of eral spirit of the decisions from which they the assignee was in possession of both stores are taken: and protesting against a levy by the sheriff. " 'Every debtor has a legal right to assign "General merchandise” is a comprehensive property for the security of the debts due him, term, and includes whatever is usually bought and so far from such an act being reprehended
I by the law, it is justified and approved.' Story, and sold in trade or market by merchants. j. in Browny. Minturn. 2 Gall. 557. 559 (Fed. It includes all those things which they sell Cas. No. 2,021). General assignments are spoeither at wholesale or retail, as dry goods, ken of by the same judge as 'encouraged by the hardware, groceries, drugs, etc. Words and
common law.' Halsey v. Whitney, 4 Mason,
na 206, 210 [Fed. Cas. No. 5,964]. See, also, BasPhrases, tit. Merchandise. So that whether com v. Rainwater, 30 Mo. App. 483; Bryce v. Perlman's goods were stoves or stockings, Foot, 25 S. C. 467; Hauselt v. Vilmar, 70 N. furniture or furs, they are all' equally com-Y. 630; Barton v. Brent, 87 Va. 385, 13 S. E. prehended in the term "merchandise"; and
29; Hyde v. Weitzner, 45 Minn. 35 (47 N. W.
rchandise; and (311), A conveyance in trust to pay debts is a whether the stock was kept in one building valid conveyance founded on a good considerain The Dalles or in two makes no difference, tion.' Kent, C., in Dey v. Dunham, 2 Johns.
| Ch. N. Y.) 182, 189. 'It is settled & if, in fact, the assignee took possession of
that an insolvent debtor may, at any time, be what was intended to be conveyed. In the fore his property becomes bound by any lien, ascase at bar, we think there was some evidence sign it over to trustees, for the benefit of all
The tending to show that the property in the bis creditors, by an act made bona fide. possession of Foster, plaintiff's agent, was attached to his character of debtor, to make the
assignment is to be referred to an act of duty, the property intended to be conveyed by the fund available for the whole body of the crediassignment, and that therefore that matter tors.' Kent, C., in Nicoll v. Mumford, 4 Johns. was a question of fact for the jury; and, un
Ch. (N. Y.) 522, 529. “The right of an insolvent
debtor to make an assignment for the benefit of less there is found some other reason why his creditors, before the property is bound by the court should have taken the case from any lien, does not admit of question, provided it them, it committed error in so doing.
be bona fide.' 2 Tucker's Com. (443) 432. "The
right to make a general assignment of all a  In considering the questions raised | man's property results from that absolute owI· upon this appeal, we must ignore our own ership which every man claims over_that which statute concerning insolvency assignments is his own.' Marshall, C. J., in Brashear V. and treat them as though they never existed, Garland. J in United States v. Bank of Unit.
West, 7 Pet. (U. S.) 608, 614 (8 L. Ed. 801). because, as decided in Pelton v. Sheridan, ed States, '8 Rob. (La.) 262, 404: I think supra, such statutes are suspended and of no * * * that where an assignment is for the effect until the Congress of the United States
benefit of all the creditors of the assignor, equal
ly and ratably, it must command the sanction shall have repealed the present Bankruptcy of every enlightened tribunal. * * * It is 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
Tv Embry Smedes & M.Ch Miss.] 207 2 $ instant case with those which stipulate for
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 y. Denison, 17 Vt. 310; and Ewing, J., or with those in the nature of composition in Vernon v. Morton, 8 Dana [ky] 247, 251.
Mr. Justice Field, in Mayer v. Hellinan, 13 deeds which require the signatures of cred
N. B. R. 440 (91'U. S. 496, 23 L. Ed. 377]: itors before becoming effective. In the press 'Whenever such a disposition has been volun. ent suspended condition of our assignment tarily made by the debtor, the courts in this law, we have no limitation upon the power
country have uniformly expressed their appro
bation of the proceeding.' Mr. 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 and when a debtor makes a transfer of his prod
erty for the fair purpose of equal distribution are several beyond the general equitable re
among his creditors, he does an honest act, and quirement that the trausaction must be fair, discharges a moral duty.' See Kalkman v. Mcbona fide, and without fraud.
Elderry, 16 Md. 60. Mr. Justice Bailey, in "It would seem," says Chief Justice Marshall,
Hoffman v. Mackall, 5 Ohio St. 124 (61 Am. in Sexton v. Wheaton, 8 Wheat. (U. S.) 229, 5
Dec. 637]; Forbes v. Scannell, 13 Cal. 242." L. Ed. 603, "to be a consequence of that abso- Section 146, Freeman on Executions, is to lute power which a man possesses over his own property, that he may make any disposition of it
the same effect. He says: which does not interfere with the existing rights “It seems to be unanimously conceded that an of others, and such disposition, if it be fair and assignment to a trustee for the benefit of cred
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. Increditors, and to which they are not, technically other words, although such a transfer neces- speaking, parties, if bona fide made, they are
unguestionably 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 re
The same authority also observes: sult through the intervention of a trustee. To "The creditors may reject the beneficiary indeny the right to hinder creditors, in a certainterest given to them by the assignment, and, sense, would be to deny the right to make an if they do, it falls to the ground, and becomes a assignment for the benefit of creditors, for such resulting trust for the debtor. But if the trust assignment, if given any operation, must neces- is for their benefit, the law presumes their assarily prevent some of the creditors from reach- sent to it until the contrary is shown. Whether ing under execution or attachment property the beneficiaries in the trust deed are apprised which they could have reached but for such of the conveyance or not is not material. When assignment. And the assignor may have fore- it comes to their knowledge they are entitled to seen and intended this result. He may have accept or reject its provisions. An express desired to prevent the sacrifice of his assets, arowal of that assent is not necessary to the which must inevitably attend their immediate operation of the assignment, for the deed is seizure and sale under execution. To this ex- complete when executed by the parties to it. If tent he has the right to hinder his creditors, an assent is expressly given, it operates retroand the assignment is not rendered void there- actively to confirm the conveyance ab initio, by, provided the hindrance is only such as re- | Even without such assent the assignment will sults from turning over the property in good prevail over a subsequent execution or attachfaith, to be applied to the satisfaction of his ment. satisfaction of his ment. If one cestui que trust renounces the
If debts. If, however, the hindering of creditors trust, then it either inures solely to the benefit was, the object rather than the incident of the of the rest, or, if there are no others, it results assignment; if the assignment was resorted to to the debtor. But until the renunciation is as a mere device to gain time or to coerce the made, or implied from circumstances, the trust creditors, or some of them, into making some continues.” settlement of their claims, to which the assignor was not legally entitled-it is doubtless void.
The assent of creditors will be presumed In the absence of any statutory inhibition, a unless they, by some affirmative act, signify debtor may prefer any one or more of his credi-l their dissent, and in such case it would seem tors, either by making payment of his liabilities to them or by turning over property to them to
that such dissent does not render the con-, be held as security, or to be applied at once at
veyance void as to those not dissenting or an agreed value, or by means of a sale, to the
even to render the property conveyed liable extinction of the debt. In many of the states, 1 to a subsequent execution by a dissenting statutes have been enacted forbidding preferences in assignments for the benefit of creditors: creditor. Nor is such an assignment, if honbut, in the absence of such statutes, the prefer estly made, void for the reason that it tends ring of any creditor or class of creditors, if free to hinder and delay creditors in the collection from any fraudulent intent, does not render the
of their demands. The reason for this rule assignment fraudulent nor void. The fact that some of the creditors are preferred to others is thus stated: will doubtless cause an assignment to be viewed “Although the intent to deprive all or particuwith suspicion, and may, when combined with lar creditors of their lawful suits, and hinder other suspicious circumstances, produce the con- and delay them in the recovery of their just viction that it was intended to defraud the demands, is confessed or proved, still the assignother creditors. Of course, if any actual designment, if by its terms all the property which it to defraud taints the assignment, it is void. embraces must be applied ratably or otherwise to There are several things which, when connected the payment of debts, is upheld as valid and efwith an assignment, are well-established badges fectual. The mere intent to avoid an execuof fraud, and some of which render the assign- / tion or other legal process does not in point of ment fraudulent per se. The most prominent law make it void. It may even be made on the of these will now be mentioned. An assignment same day that a verdict is rendered against the will not be allowed to withdraw property from assigpor, or the claim of the creditor assailing the reach of the creditors, that it may, to any it may be specially in the contemplation of the extent, be securer for the benefit of the assignor. debtor. It will not in such case be void, even Ile must part with all interest in the property, as against the persons who are in fact very except his right to such surplus as may remain ngaterially hindered and delayed, and were after satisfying the demands of his creditors. meant to be so. It is valid even against the Hence, when it appears that the debtor has re-creditors whom it deprives, and is intended to served some portion of the property, or some deprive of that full satisfaction of their debts interest therein, for his own benefit; or that which by their superior diligence in prosecuting he stipulates for some benefit or advantage for their suits they would otherwise have certainhimself or for his family, to be reserved out of ly, obtained. The explanation is that, although the proceeds--it is evident that he thereby seeks in these cases the intent to hinder and delay the to withdraw something of value from the reach creditors is manifest, it is just as certain that of his creditors, and the assignment is fraudu- there is no intent to cheat or defraud them, and lent per se."
the reasonable construction of the statute is Nor is there any need of assent on the part
that it is only such a hindrance or delay as is
intended to operate, or, if permitted, could opof creditors to render the assignment valid:
crate as a fraud upon the creditors, that was "To the creation of a trust by deed in favor ineant to be prohibited. All the law can reasonof any person, it is not necessary that the ably demand of a debtor is the faithful applicacestui que trust should either be a party or as tion of his entire property to the satisfaction sent to it. It is clear that trusts may law- of his debts, and where, by the terms of the as. fully be created where there can be no present signment, this is secured, the hindrance or deassent, for they may be in favor of persons not lay which they create, bowever they may opin existence. It is sufficient in general that in erate to the prejudice of particular creditors,