Page:Federal Reporter, 1st Series, Volume 10.djvu/845

 SEALE V. VAIDBN. 833 �of Garduer, Gates & Co., valued at $1,680 ; and that the indebtednesa to Baid Gardner, Gates & Co. is $3,177.86, and that to Yaiden, Hawkins & Co. $1,889.12. It is clear that these creditors had a lien upon the cotton in their hands, and a right to apply the pro- ceeds to the payment of their accounts, which, when done, would reduce the amount of assets to $7,392.90, and would reduce the lia- bities to $11,456.40. Experience bas shown, until it is almost a matter of judicial knowledge, that a remnant of a stock of goods and of debts can rarely, if ever, be made to realize more than half their nominal amount. The trust deed provides that the sum of $500 should be paid in full to the attorneys of the grantors; also the expenses of executing the trust, including $50 per month to the assignee. These expenses, at the least, will amount to $500, making in all at least $1,000 to be paid before any other creditors. The value of the assets, if placed at 50 cents on the dollar, would amount to $3,696.45 ; but, according to the proof of the assignee, they real- ized about $4,000, which shows better success than usual. �Deduct from this sum $1,000, would leave $3,000 for creditors. The proof is that five-sixths of the creditors in amount were present, and agreed to the assignment and to the reception of 33J per cent, of the amount due them. This was done before the assignment was made. Thirty-three and one-third per cent, on the amount due these cred- itors, as shown by the schedules, amounts to the sum of $3,182.15, which would absorb all the remaining assets and leave nothing. So far as it relates to these aocepting creditors there can be no doubt that the assignment is valid and binding, especially as they agreed to it before it was made, and before the grantor had parted with the assets and property conveyed, �The question is as to whether or not it is valid as to the non- assenting creditors, of whom Vaiden, Hawkins & Eoberts compose a part. It is considered that when an assignment of this character is made, in which a participation in the assets is dependent upon enter- ing a release of the remainder of the debt due, and there is no pro- vision made for a distribution of the surplus among the non-assenting creditors, that such conveyance would per se be held fraudulent and void ; but it is contended that the provision made for the third clas? of creditors avoids this resuit. Complainant'scounsel, to sustain this position, rely upon the case of Spalding v. Strong, 37 N. Y. 136, and 38 N. Y. 10. �v.l0,no.8— 53 ��� �