Page:Federal Reporter, 1st Series, Volume 10.djvu/846

 83e FEDERAL REPORTER. �' I am' of opinion that the ruie laid down in those cases goes to the verge in upholding these assignments ; but in these cases the assign- aient is held valid because of the contract between the parties, and as a modo of preference by classes. I doubt that the court in these cases wonld have held the assignment valid, had it beenshown upon the face of the assignment and schedule annexed to it, to a moral cer- tainty, as in this case, that nothing would be left to the non-assent- ing creditors. The vice of the release demanded cannot be cnred by a contingency which, it is apparent from the face of the conveyancBj Schedule, and proof, oan never take place. �' Vaiden,: Hawkins & EobertS were not present when the assign- ment was agreed to by the assenting creditors, and are in no way bound by what they did, when we consider the creditors who, in amount, agreed to the assignment, and consequently to its terms, and the largest sum which the assets could reasonably be expected to produce. It was in eiiect saying, upon the part of the grantors, to their non-assenting creditors : Your participation in the property and assets conveyed, depends upon ybur releasing to us two-thirds or the remainder of your just demand against us. This is a demand not sustained by law, and which renders this conveyance fraudulent and void as against Yaiden, Hawkins & Eoberts, the defendants who •move to dissolve the injunctiOn. �There bas been producfed no ruling by the supreme court of the United States upholding Buch an assignment as the one under con- sideration. The rulinga upon assignments containing provisions for a release of the remainder of the creditor's debt, so far as they have come before the supreme court of this state, have been adverse to the valid- ity of such assignments; so that this court is left free to pass upon the question presented upon its intrinsic merits. A careful consid- eration of the arguments and authorities cited by the learned coun- sel who have argued this case has led me to the conclusion above stated, and that is that, from the face of the conveyance, schedules, and the proof read in evidence by the complainant, the trust deed must be held fraudulent and void, and as conveying no title as against Vaiden, Hawkins & Eoberts, and that as to them the injunction granted by the circuit judge should be dissolved, and they permitted to proceed with their attachment suit as though said conveyance had never been made. And it is so ordered, but only as to these parties; as to all others, the cause will remain as though this order had not been made. ��� �