their respective debts, and release and discharge the debtor from all claims and demands. There are also frequently inserted a variety of clauses giving special powers to the assignee, and marking out, in considerable detail, the course of his proceedings in the execution of the trust.

In the execution of these instruments, it is usual to employ counterparts, so that the transfer may be made complete by a delivery to the assignee, in case the assignment is retained by the debtor for any purpose, as to procure the signatures of creditors.1

'Marston v. Coburn, 17 Mass. 454, 457.

CHAPTER IX.

PARTIAL ASSIGNMENTS.

§ 155. A partial assignment is an assignment of a portion of a debtor's property, in trust, for the benefit of his creditors,1 and is distinguished, on the one hand, from a special or particular assignment, which is made directly to the creditor, in payment or as security; and, on the other, from a general assignment, the nature of which has already been explained. A general assignment, with an express exception of part of the debtor's property, is, in effect, a partial assignment, and has been so treated. An assign

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1 The term partial has been occasionally applied to assignments in another sense, namely, as descriptive of the disposition made of the assigned property by the assignor, where he prefers one or more creditors to others. Thus, in Riggs v. Murray (2 Johns. Ch. 565, 577), assignments with preferences are called partial assignments.

* If an assignment in trust does not, on its face, purport to be of all the assignor's property, it will be treated as a partial assignment. See Seaving v. Brinkerhoff, 5 Johns. Ch. 329; Lentilhon v. Moffatt, 1 Edw. Ch. 451; Halsey v. Whitney, 4 Mason, 206. An assignment which, on its face, purports to be but a partial assignment, is so to be regarded and treated until the contrary is shown. Redfield, C. J., in Mussey v. Noyes, 26 Vt. 462, 474. But in a case where an assignment in terms conveyed all the property which the assignors owned in certain towns named, and it did not appear, either upon the face of the assignment or from the evidence, that they owned any property which was situated elsewhere, it was held in Vermont that the court would infer that all the property which the assignors owned was thereby conveyed. Dana v. Lull, 17 Vt. 390. So in Maryland, an assignment for the benefit of creditors stipulating for releases must, on its face and by its terms, convey all the property of the grantor, and unless it does so it is void, no matter whether it does in fact convey all his property or not. Rosenberg v. Moore, 11 Md. 376; Barnitz v. Rice, 14 Id. 24; Malcolm v. Hodges, 8 Id. 418.

Ingraham v. Grigg, 12 Sm. & M. 22. 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. Pearce v. Jackson, 2 R. I. 35. And where the assignor had real estate not conveyed to the assignee (the assignment gave preferences but did not stipulate for releases), this did not render the assignment void. Bates v. Ableman, 13 Wis. 644. In that case Mr. Justice Paine said the answer to this objection is, that if the property is not conveyed it is left as it was before, liable to seizure. See State v. Benoist, 37 Mo. 500; Carpenter v. Underwood, 19 N. Y. 520; Knight v. Waterman, 36 Penn. St. 258; Baldwin v. Peet, 22 Tex. 708; Henry v. Root, 38 Mich. 371.

ment of partnership effects is a partial one, whenever the debtor has separate property which is not conveyed.1 There may be cases where a debtor may find it expedient to provide for creditors by a partial assignment, but transfers of this kind are comparatively rare in practice, and when made, are usually preliminary either to further transfers of the same kind, or to a general assignment. If the appropriation of part of the debtor's property be found sufficient to liquidate all claims against him, it is usually made in a dif ferent and more direct form; and if it be insufficient, an assignment of such portion, without any further transfer, is of little value, the unassigned residue being open to the remedies of creditors, the same as if it had not been made.

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§ 156. Stipulations for Releases.-It is true that assignments of this description have sometimes been made with a stipulation for a full release by the creditor as the condition. of receiving the benefit of them; and in the important case of Halsey v. Whitney, Mr. Justice Story gave effect to such a condition in a partial assignment. But it is remarked by Chancellor Kent, in commenting on the decision in this that the learned judge's own judgment was not satisfied

case,

1 Gibson, C. J., in Thomas v. Jenks, 5 Rawle, 221.

"This was the case in the United States v. The Bank of the United States, 8 Rob. (La.) 262.

This was the case in Johnson v. Whitwell, 7 Pick. 71. In Nicholson v. Leavitt (4 Sandf. S. C. 252), the debtor's property was transferred by several partial assignments, followed by a general assignment. In Johnson v. Whitwell, a partial assignment had been made, as a temporary arrangement, for the benefit of three creditors, with the understanding and expectation that a general assignment should afterwards be made for the benefit of all the creditors. The partial assignment was, in fact, canceled, and the general, assignment made in the same form. But the first deed was held void, as intended to cover the property and intercept attachments. So in the case of Holt v. Bancroft (30 Ala. 195), where a partial assignment was made eight days previous to the execution of a general assignment, and it appeared that the intention to make the general assignment existed at the time the first instrument was executed, and the same trustee appointed in both, the entire transaction was taken together and deemed void as giving preferences.

4 Mason, 206. The assignment in this case did not, on its face, purport to convey all the debtor's estate. It was, however, suggested at the bar, that in point of fact the debtor had no other property. Story, J., Id. 218. In the reporter's statement of the case, the assignment is said to have been of all the debtor's property. Id. 207. See the observations of Curtis, J., in Stewart v. Spencer, 1 Curt. 157, 164.

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with the authorities under which he acted, and that partial assignments with such a condition ought not to be tol erated.' It appears, indeed, to be now the settled rule in New York, that an assignment to a trustee, of part of the debtor's property, upon condition of a full release, is void;" such a condition being regarded as oppressive, coercive, and unjust as against creditors. The same rule has been adopted, and for similar reasons, in Pennsylvania, Maryland," Virginia, Mississippi,' and Indiana. On this principle, it was held by the Supreme Court of Pennsylvania, that an assignment by partners, of the partnership effects, and not of their separate property also, if it contain a condition that

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1 2 Kent's Com. [534] 695, note a.

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Seaving v. Brinkerhoff, 5 Johns. Ch. 329; Lentilhon v. Moffatt, 1 Edw. Ch. 451: Grover v. Wakeman, 11 Wend. 187; Berry v. Riley, 2 Barb. S. C. 307. See the observations of Clayton, J., in Ingraham v. Grigg, 13 Sm. & M. 22, 30; Austin v. Bell, 20 Johns. 442; see Seldon, J., in Dunham v. Waterman, 17 N. Y. 9.

Kent, C., in Seaving v. Brinkerhoff, 5 Johns. Ch. 332. The chancellor said, in this case, "A partial assignment upon such a condition, is pernicious in its tendency, if it be not (as I rather apprehend it to be) fraudulent in its design." Id. ibid.

'Thomas v. Jenks, 5 Rawle, 221; Hennessy v. The Western Bank, 6 W. & S. 300; In re Wilson, 4 Barr, 430. In the last case, Rogers, J., speaking of the former decisions, observed: "It was ruled that such an assignment was against the policy of the law; that the condition was oppressive, without the color of justice, and evinced on the face of the instrument a fraudulent design; that it was taking an unfair advantage of the situation of the creditor, to impose the condition of a release, unless on the terms of the surrender of all the debtor's property. We thought so then, and, notwithstanding all that has been so pertinaciously and strenuously urged to the contrary, we are of the same opinion still." Id. 448, 449. In Wiener v. Davis (13 Penn. St. 331), it was held that, since the act of 1843, an assignment by a debtor, of part of his property, to some of his creditors, they stipulating to give a release, is not necessarily void. See opinion of Agnew, J., in Miners' National Bank Appeal (57 Penn. St. 193), reviewing the history of legislation and decision in Pennsylvania.

'An assignment for the benefit of creditors, exacting releases as the condition on which they may participate in the fund, must transfer all the debtor's estate. Green v. Trieber, 3 Md. 11; see Sangston v. Gaither, Id. 40; Rosenberg v. Moore, 11 Md. 376; Barnitz v. Rice, 14 Id. 178; Bridges v. Wood, 16 Id. 102; Whidbee v. Stewart, 40 Id. 414.

Skipwith's Ex'r v. Cunningham, 8 Leigh, 271, 291; Gordon v. Cannon, 18 Gratt. 387; 2 Tuck. Com. [442] 431.

'Ingraham v. Grigg, 13 Sm. & M. 22. In this case, Clayton, J., observed: "A debtor in failing circumstances cannot devote a part of his property to the payment of his debts, reserve a part, and say to his creditors, that they shall not touch the part so devoted unless upon surrendering all claim to that which is reserved. In other words, a debtor cannot keep any part of his property from his creditors, except that which the law secures to him; and any attempt to do so amounts to a fraud." Id. 30.

8 Henderson v. Bliss, 8 Ind. 100.

the creditors shall release their claims against the assignors individually, and as copartners, is fraudulent and void.1 And where an assignment by the members of a firm purported to convey merely the partnership goods and effects, with certain specified real estate, in trust for certain preferred creditors, and then in trust for such as should execute a release, but contained no words of conveyance of the private or individual estate of either member of the firm, and did not even purport to convey all the real estate of the firm, it was held by the same court to be invalid.2

§ 157. Preferences.-In some of the States assignments for the benefit of creditors are required to convey all the debtor's estate, and in some, such assignments will be construed to pass all the estate, whether purporting to or not; but, independently of statute, partial assignments, when they leave the unassigned residue open to the claims of creditors, are valid conveyances, and they have been so held in England. In some instances, also, where preferences have been prohibited in general assignments, they may still be made in partial assignments, or by means of such conveyances. But in other States, even where preferences are

' Weber v. Samuel, 7 Barr, 499. Whether an insolvent debtor who assigns but a part of his property for the benefit of all his creditors, can stipulate for a release in Rhode Island, see Stewart v. Spencer, 1 Curt. 157, 166; and see Le Prince v. Guillemot, 1 Rich. Eq. 187.

3 Fisher v. Dinwiddie, 12 B. Moь. (Ky.) 208; Ingraham v. Grigg, 13 Sm. & M. 22; Du Bose v. Carlisle, 51 Ala. 590; Leitensdorfer v. Webb, 1 N. Mex. 34; Pearce v. Jackson, 2 R. I. 35; State v. Benoist, 37 Mo. 500.

4 Estwick v. Caillaud, 5 Term R. 420; Goss v. Neal, 5 J. B. Moore, 19.

Thus, in Iowa, where preferences in general assignments invalidate the conveyance, "it is still competent," says Mr. Justice Cole, in Samson v. Arnold (19 Iowa, 480)," for any debtor to pay a part of his creditors in full, to secure another part by mortgage or deed of trust upon a part of his property, to make a partial assignment of still other property for the benefit of certain other creditors, with or without preference, and afterward to make a general assignment;" and see Fromme v. Jones, 13 Iowa, 474; Davis v. Gibson, 24 Id. 257; Farewell v. Howard, 26 Id. 381. So in Alabama, where preferences are not permitted in general assignments, the right of preferring creditors by partial assignments is untouched. Holt v. Bancroft, 30 Ala. 195; Stetson v. Miller, 36 Id. 642. So in Missouri. Johnson v. McAllister's Assignee, 30 Mo. 327; State v. Benoist, 37 Id. 500; Shapleigh v. Baird, 26 Id. 322; Woods v. Timmerman, 27 Id. 107; Many v. Logan, 31 Id. 91. These decisions were mainly under the act of 1855; but compare Stat. of Mo. (Wagner), c. 9, p. 150.