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ment by a debtor, of all his estate and effects, will pass to the assignee everything which is in its nature assignable, except such property as may be specially exempted by law, or excepted by the terms of the deed itself, where such exception is allowed.

It is, however, a leading rule in the construction of assign- ) ments by debtors, that no more property will pass to the assignee than is embraced in the terms of the instrument; and even where all the debtor's property is assigned, in terms, if there be subsequent words of description, or a reference to a schedule, as setting it forth particularly, the contents of such clause or schedule will operate to limit the general clause of transfer, and nothing will pass that is not so set forth or specified.1

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§ 96. Exemptions.-There are, however, portions of a debtor's property which the law expressly exempts from the process of creditors; and these, of course, he is allowed to except and retain out of the general conveyance. Provis ion is frequently made by statute for these exemptions. Thus, as we have seen in Connecticut, the assignment is not required to embrace property exempt from execution, or real estate situated out of the State, or, in cases of sole assignors, one hundred dollars in cash. But where the debtor made no reservation in the instrument of the one hundred dollars so exempt, he was held to have waived his right to reserve the money. In California, property exempt from execution, and insurance upon the life of the assignor, do not pass to the assignee by a general assignment for the benefit of creditors, unless the instrument especially mentions them, and declares an intention that they shall pass thereby. In

1 See post, Chap. VIII.

1 Heckman v. Messenger, 49 Penn. St. 465; Mulford v. Shirk, 26 Penn. St. 473; Dow v. Platner, 16 N. Y. 562; Baldwin v. Peet, 22 Tex. 708; Garner v. Frederick, 18 Ind. 507; Smith v. Mitchell, 12 Mich. 180; Brooks v. Nichols, 17 Mich. 38; Farquharson v. McDonald, 2 Heisk. (Tenn.) 404; Sugg v. Tillman, 2 Swan, 208; see Simpson v. Roberts, 35 Ga. 180; Dolson v. Kerr, 5 Hun, 643.

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Indiana, appraisers may set off to a resident householder property not exceeding six hundred dollars in value,' but this does not prevent the assignor from reserving in the assignment property exempt from execution.2

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So in Michigan, an assignment is not void on its face for excepting property exempt from execution without specifying it, and the assignor may select property exempt from execution after the execution of the instrument, and the assignee takes the property subject to this right of selection.* So in Maine and New Hampshire, exempt property does not pass to the assignee under the assignment; and in Pennsylvania, where the assignor has included exempt property in the assignment, an appraisal will be made and the property will be set off to the debtor; and where the assignor expressly reserved the benefit of any and all exemption laws, this did not invalidate the assignment. But in New Jersey an assignment of all his property by a debtor divests him of the personal right to claim what is by statute exempt from execution, and does not vest it in the assignee.' But in Tennessee, where an assignment in trust by a debtor, for the benefit of a portion of his creditors, conveyed all his property of every description, consisting of real and personal estate, &c., but reserved out of the personal effects so much as he was by law allowed to retain free from execution, it was held to be fraudulent and void in law, whether so intended or not.10 In Ohio, it has been held that the assignor's

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1Stat. of Ind. (Rev. 1876), vol. I, p. 144, § 9; amount increased to six hundred dollars by Laws of 1879, c. 50, p. 127. O'Neil v. Beck, 69 Ind. 239. * Garner v. Frederick, 18 Ind. 407.

* Smith v. Mitchell, 12 Mich. 180; Hollister v. Loud, 2 Mich. 309, 310, 322. Brooks v. Nichols, 17 Mich. 38. The exemption is not lost by offering the exempted property for sale, or changing the place or conditions of occupation. Rosenthal v. Scott, 41 Mich. 632.

Rev. Stat. of Maine (ed. 1871), p. 543, § 1.

Gen. Stat. of N. H. c. 126, § 1, p. 262; Gen. Laws of N. H. (ed. 1878), c. 140. "Act of May 4th, 1864; Purden's Dig. (Brightley), vol. I, p. 93, § 17.

Heckman v. Messenger, 49 Penn. St. 465; see Mulford v. Shirk, 26 Penn.

St. 473; Peterman's Appeal, 76 Penn. St. 279.

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Moses v. Thomas, 26 N. J. L. 124; Van Waggoner v. Moses, Id. 570.
Sugg v. Tillman, 2 Swan, 208.

wife was entitled to an allowance in lieu of the homestead, against the assignee, though the family dwelling house had been burned previous to the sale by the assignee.1

§ 97. Exception of Property not Exempt.-It has sometimes been the practice to except, in addition to such articles as were exempted by law, other portions of property for the debtor's use; and it has been held that the insertion of such a clause of exception would not vitiate the assignment. Thus, in Maine, previous to the statute of April 1, 1836, concerning assignments, where the assignor excepted from the general conveyance of his property,. "necessary and proper household furniture, and means of paying his small debts under fifty dollars, and ordinary family expenses," it was held that, as the excepted property did not pass to the assignee, but was left open to attachment as it was before, the exception did not vitiate the assignment. But it was afterwards held in that State, that an exception of property not exempted by law, rendered an assignment void. It is now declared by statute that assignments shall be construed to pass all the debtor's property, real and personal, whether specified in the assignment or not, which is not by law exempt from attachment. In Mississippi, a deed of assignment by a bank for the benefit of its creditors, which conveys all its assets and property, except certain specified portions, to trustees, has been held not void because of the reservation. In Pennsylvania, an assignment (stipulating for a release), excepting the household furniture of the assignors, and property exempt from execution, is voidable; but until an election by creditors to avoid it, conveyances by the assignees for value received by them, are valid. But in

533.

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Kelly v. Duffy, 31 Ohio St. 437; see also Hoge v. Hollister, 8 Baxter (Tenn.),

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* See Act of March 21, 1844; Merrill v. Wilson, 29 Me. 58.

' Ingraham v. Grigg, 13 Sm. & M. 22.

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* Johns v. Bolton, 12 Penn. St. 339; Boker v. Crookshank, 1 Phila. 193.

other cases in that State it has been held that the reservation from a general assignment for the benefit of creditors of certain specified property, without any stipulation, reservation, or condition, in favor of the assignor, does not render it void as to creditors.1 And even where all the debtor's property passes under the assignment by reason of statutory enactment, the fact that a foreign tribunal will not give efficacy to the assignment, and that certain real property of the debtor situated elsewhere may not pass, owing to such construction, will not invalidate the assignment. And an express exception from the grant of a portion of the property, as, for instance, a claim against certain persons then in suit, there being no reservation of any benefit from or interest in the property actually assigned, does not invalidate an assignment, nor does the insertion of the clause "except what is by law exempt," when in fact none is exempt. Considering the present general inclination of the courts against all reservations in assignments for the debtor's own benefit, the safest rule is to avoid these clauses altogether.

§ 98. When the Assignment must Embrace all.-Assignments containing a stipulation for the release of the debtor (even where such stipulations are allowed) are, in

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Knight v. Waterman, 36 Penn. 258; Heckman v. Messenger, 49 Penn. St. 465. In Bausman's Appeal (90 Penn. St. 178), the court say: The general right of the assignor to except and reserve from the assignment property to the value of $300 is undoubted. He may not do so out of land to the injury of one holding a lien for the purchase money, or a judgment lien in which the exemption from execution is waived. His claim, however, must be restricted to some property which he owned, or in which he had an interest at the time of the assignment, or, at the farthest, to the proceeds for which that property was sold. It cannot extend to money made by the assignee's care, management, and use of the assigned property." Wiley's Appeal, 90 Penn. St. 173. Where the debtor assigned reserving property exempt by law, and afterward a creditor recovered judgment against him on a note containing a waiver of exemption, it was held that the creditor must assert the waiver by execution or attachment against the reservation, and had no standing to claim in the distribution of the fund assigned. Myers' Appeal, 78 Penn. St. 452; see Numbers v. Shelly, Id. 426.

2 Frink v. Buss, 45 N. H. 325.

Carpenter v. Underwood, 19 N. Y. 520; see Bates v. Ableman, 13 Wis. 644; Baldwin v. Peet, 22 Tex. 702; Foster v. Libby, 24 Me. 448; Moss v. Humphrey, 3 Greene (Iowa), 443.

* Dodd v. Hills, 21 Kans. 707.

most of the States, invalid unless they contain a transfer of all the debtor's property;1 but assignments with preferences not conveying all the property are not necessarily void for that reason.2

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In Rhode Island it has been held that an assignment which, on its face, purports to convey all the assignor's property, when, in fact, he has other property not disclosed in the assignment, is void as against creditors; but if it does not so purport, it is valid, notwithstanding property may remain in the hands of the assignor unassigned. And, in Massachusetts, an assignment by partners, not purporting to transfer their whole property, but only their partnership property, and not purporting to transfer their separate property, nor alleging that they had no separate property (and it not appearing elsewhere that they had no separate property), and providing for a discharge from their entire partnership debts, was held to be repugnant to the insolvent laws of the State.*

But in Maine, the provisions of the act of 1844, that an assignment shall be construed to pass all property not exempt from attachment, whether specified in such assignment or not, will not bring the private property of partners within an assignment of property belonging to the copartnership. In Michigan an assignment has been held void for not including the assignor's real estate; but an express omission of property subject to specific claims, did not necessarily invalidate an assignment."

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§ 99. Proportion of Amount assigned to Debts.-Where an assignment is made for the benefit of particular creditors, the proportion which the amount of property assigned

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