Page:Harvard Law Review Volume 8.djvu/281

265 VOLUNTARY ASSIGNMENTS AND INSOLVENCY. 26$ VOLUNTARY ASSIGNMENTS AND INSOL- VENCY IN MASSACHUSETTS. " T 7HILE the insolvent laws of Massachusetts have been much V V developed, and have occupied much of the field formerly covered by voluntary assignments for the benefit of creditors, many of the largest cases of adjustments between debtors and creditors are still settled outside of the courts. It has been often argued, but never, so far as the writer is aware, clearly decided, that a voluntary assignment can be upset in all cases by proceed- ings in invitum under the insolvent laws. If such is the fact, it must depend upon some provisions of those laws, and to determine the fact it becomes necessary to review the history of both systems of liquidation and of their relations to each other. At common law one could transfer his property to whomsoever he pleased, provided he had not already passed the title to another; in other words, a conveyance could be set aside only by those having a prior title. This right was much abused, and led to the statutes of Elizabeth making conveyances void when they tended to delay, hinder, or defraud creditors,^ or when thereby subsequent purchasers for value were deprived of their rights.^ There was, however, nothing in these statutes to prevent a man's paying his debts in whatever way he pleased, and to whichever creditors he chose, and therefore a direct preference to a creditor was perfectly valid ; ^ but in Massachusetts the absence of full equity powers in the courts, and more especially the statutes es- tablishing attachment on mesne process, led to the qualification that the creditor must assent to and accept the preference.* So 1 13 Eliz. ch. 5. 2 27 Eliz. ch. 4. 8 Russell V. Woodward, 10 Pick. 408 (1830) ; Stevens v. Bell, 6 Mass. 339 (1810) ; Widgery v. Haskell, 5 Mass. 144, 153 (1809); First National Bank of Easton v. Smith, 133 Mass. 26, 31 (1882) ; Green v. Tanner, 8 Met. 411, 421 (1844) ; Bernard v. Barney Myroleum Co., 147 Mass. 356 (1888) ; Giddingsz/. Sears, 115 Mass. 505 {1874) ; Frank V. Bobbitt, 155 Mass. 112 (1890); Train v. Kendall, 137 Mass. 366 (1884); May z/. Wannemacher, in Mass. 202 (1872) ; Adams v. Blodgett, 2 W. & M. 233 (1846). (1809).
 * Stevens v. Bell, 6 Mass. 339, 342 (1810) ; Widgery v. Haskell, 5 Mass. 144, 153