the rights of creditors, in respect to the property assigned, must be governed by it.1 2 But in a later case, it has been held that where a debtor has executed and delivered the deed to the assignee, the assignor has no power afterward to change its terms and conditions without the consent of the assignee and the creditors. After the execution and delivery of an assignment, a schedule (previously omitted) may be annexed to it, by the consent of all the parties, and it may then be redelivered with the same effect as before. In a case in Georgia, where the debtor had provided in the assignment for a release, and subsequently relinquished any benefit he might be supposed to have reserved to himself therefrom, it was held that after the execution of such a relinquishment and its acceptance by the assignee, before the plaintiffs obtained judgment, the assignment would stand. In California, it is provided by statute that an assignment for the benefit of creditors, which has been executed and recorded so as to transfer the property to the assignee, cannot afterwards be canceled or modified by the parties thereto without the consent of every creditor affected thereby.5 § 262. By the Court.-Mistakes in assignments will also sometimes be corrected, and the instruments be reformed by a court of equity, in the absence of any express statute provision to the contrary, on application for that purpose. In a case in Alabama, where a debtor executed a deed of trust to secure certain of his creditors and sureties, and included in it certain notes on which one of the beneficiaries was supposed to be bound as surety, describing them as notes on which said beneficiary was security, under the belief that if he was not bound, the misdescription would exclude the holder of them from any benefit under the deed-the deed 3 Clap v. Smith, 16 Pick. 247; Hand, J., in Moir v. Brown, 14 Barb. 39, 48. was reformed in equity, upon proof of the mistake, and that the grantor intended to secure the said beneficiary only, and not the notes.1 But in a case in Connecticut, the Supreme Court of Errors refused to reform an assignment, so as to include a claim which was intended and agreed by the assignor to be included in it and conveyed to the assignee, but had been, through the mistake of the draftsman, omitted; on the ground that, as the statute of 1828, against fraudulent conveyances, expressly required the assignment to be in writing and lodged for record in the probate office, the ordinary principles which are adopted in chancery, as to the correction and reformation of mistakes in instruments, did not apply to the case. And in a later case, the same court adhered to the former decision, with the distinction that, as to the assignor, if it should become necessary to reform the assignment in consequence of a mistake attending its execution, the ordinary principles on which such relief is granted by courts of equity would apply. But such relief would not be granted against his creditors, for the obvious reason that, as to them, the instrument was rendered fraudulent and void.3 § 263. In other Cases. Sometimes the effect of amend ment has been allowed to be obtained by the mere act of the assignor, by means of a new and distinct instrument. Thus, in Connecticut, it has been held that an instrument referring to a former deed of trust, which was void by reason of a clause prescribing terms to the cestui que trust, renewing and confirming such deed, exclusive of the exceptionable clause, and assigning the same property for the same purpose, and giving the same authority to the trustee, not by a specification of such property, but by terms of reference to the former deed, might have effect as a new and independent instrument of conveyance. In a late case in Vermont, where an 1 Trapp v. Moore, 21 Ala. 693; see Moale v. Buchanan, 11 Gill & J. (Md.) 314. 2 Whitaker v. Gavit, 18 Conn. 522. 'Whitaker v. Williams, 20 Conn. 98; Storrs, J., Id. 102; see Farrow v. Hayes, 51 Md. 498. 4 Ingraham v. Wheeler, 6 Conn. 277. As to the revocation and canceling of assignments, see post, Chap. XXVII. assignment was defective on account of its containing a resulting trust before providing for all the assignor's creditors, it was held by the Supreme Court that the defect might be supplied by a new assignment providing in terms for the payment of all the assignor's debts. The court (Redfield, Ch. J.) said this was not only allowable, but it was certainly commendable; and they saw no reason why it might not be done by a mere declaration of trust in favor of all the cred itors, in addition to the former assignment, without making the whole paper anew. It was also held in the same case, that where an assignment was voidable or inoperative, as to creditors, under the statute, on account of its generality, the defect might be cured by a new assignment, excepting some substantial portion of the estate and leaving it open to attachment. But in a case in the Court of Appeals of New York, where an assignment was invalid by reason of its containing an authority to the assignee to sell the assigned property on credit, it was held that it could not be made. valid by any new instrument directing the property to be sold for cash only, executed by the assignor after the assignee had accepted the assignment and taken possession of the assigned property. By the assignment, the assignor had divested himself of all control over the property; and he could neither revoke nor alter it, to the prejudice of a creditor whose lien on the property had already attached. 2 The insertion of a provision of the assignment, that schedules may be corrected, if be corrected, if necessary, has already been noticed.* 1 Merrill v. Englesby, 28 Vt. 150, 155, 156. " Id. ibid. 'Porter v. Williams, 9 N. Y. 142; Willard, J., Id. 152. And the same rule was applied where the assignment was invalid by reason of a provision unlawfully exempting the assignee from liability. Metcalf v. Van Brunt, 37 Barb. 621; and see Gates v. Andrews, 37 N. Y. 657; Haines v. Campbell, 8 Wis. 187. But when the instrument is void by statute, and not merely voidable, no title vests in the assignee, and the assignor may therefore convey the property, by a proper instrument, to the assignee or to a third party. Juliand v. Rathbone, 39 N. Y. 369; and see Brahe v. Eldridge, 17 Wis. 184. In a special term case in New York, it is held that an assignment cannot be amended, even by order of court, although the schedules may be. Matter of Wilson, 1 Monthly L. Bul. 5. 'See ante, § 151. Dedham Bank v. Richards, 2 Metc. 105; Halsey v. Whitney, 4 Mason, 206. 2 § 264. Additions. In regard to additions to assignments, it has been held that a subsequent additional assignment, to be valid, must be made with the consent of all the parties to the instrument.1 The rights of creditors are fixed by the assignment, and without their knowledge or consent cannot be varied by any subsequent act of the assignor or assignee. Thus, in a case in New York, it was held that no subsequent agreement by the assignees, to apply a portion of the property for any other purpose than that specified by the assignment, could be upheld. And in a case in Maine, it was held that an instrument discharging such creditors as should have become parties to an assignment, from the effect of their release to the debtor contained therein, would not defeat an assignment made for the benefit of creditors pro rata, as to creditors who had not become parties. But the operation of an assignment may be extended by a new deed; as where it directs the appropriation of a surplus in the hands of the assignee, not appropriated by the first deed. And supplemental assignments are frequently made, in order to include property not comprised in the first instrument, or to pass a more perfect title to the property already assigned. The filing of a supplemental assignment containing property unintentionally omitted from the original assignment, does not carry forward the date of its taking effect. 6 A subsequent assignment may be made by one of two partners, for the purpose of correcting the first." 1 Ramsdell v. Sigerson, 2 Gilm. 78. 'Bell v. Holford, 1 Duer, 58, 78. 'Howe v. New begin, 34 Me. 15. 4 Flanagin v. Wetherill, 5 Whart. 280. In this case there were two additional instruments executed by the assignors, by which they assigned the surplus to the same assignee, for different purposes. 621. 'See Conkling v. Coonrod, 6 Ohio St. 611; Metcalf v. Van Brunt, 37 Barb. CHAPTER XVIII. ACCEPTANCE BY THE ASSIGNEE. In order to give the assignment validity, and render it operative, it is essential that there should be an acceptance of the instrument, and of the trust created by it, on the part of the assignee; a delivery of the instrument without acceptance, is nugatory.1 § 265. When and How to be Signified.—The acceptance should be signified by the assignee immediately on the delivery of the assignment; otherwise creditors may gain a priority, which will not be divested. Where an assignee delayed an express acceptance of the trust, but received the deed, and executions came to the sheriff's hands, it was held that the assignee's subsequent acceptance could not deprive the creditors of their priority." The acceptance must be actually signified by the assignee; the mere taking the instrument into his hands, and retaining it, amounts to nothing. It may be signified verb 1 Crosby v. Hillyer, 24 Wend. 280; Lawrence v. Davis, 3 McLean, 177; Pierson v. Manning, 2 Mich. 446; Pratt, J., Id. 462. Both the appointment and the acceptance of the trust are necessary to make one an assignee, and when these are denied they are facts to be proved. Dougherty v. Bethune, 7 Ga. 90. The fact that an act of the legislature recites the assignment to a certain person and confirms it, does not constitute him an assignee without his acceptance. Bethune v. Dougherty, 21 Ga. 257. But in the case of Furman v. Fisher, 4 Cold. (Tenn.) 626, Mr. Justice Shackelford expressed a contrary opinion. "The assent of the trustee," he observes, "is not necessary to the validity of a trust deed. He may refuse to act, be unable to comply with the statutes, or die, and in such or similar cases, a court of chancery will execute it." So where the clerk of the court was named as assignee, but was incompetent to act, it was held that this in no way affected the validity of the deed. Barcroft v. Snodgrass, 1 Cold. (Tenn.) 430. 2 Crosby v. Hillyer, 24 Wend. 280; see Pierson v. Manning, 2 Mich. 44; Siggers v. Evans, 32 Eng. Law & Eq. 139. Nelson, C. J., in Crosby v. Hillyer, 24 Wend. 284. In Wisconsin, the assignee is required to indorse his acceptance upon the assignment filed with the clerk. R. S. of Wis. (1878), § 1696. The names of the assignees may be affixed |