Page:Harvard Law Review Volume 8.djvu/287

271 VOLUNTARY ASSIGNMENTS AND INSOLVENCY. 271 If we now consider the cases arising under the Act of 1838 we shall find several dicta as to the effect of the insolvent law on voluntary assignments. In Wyles v. Beals,^ a case of scire facias against a voluntary assignee, the assignment provided for the dis- tribution of the property in precisely the same manner as it would have been distributed under the insolvent law. Shaw, C. J., men- tioned several reasons why the assignment was invalid as against attaching creditors. The fifth reason was because it defeated the rights of creditors to proceed in invitum under the Act of 1838. Counsel for the defendant had argued that an assignment valid at common law was not void under the statute of 1838, unless the remedy provided by that law was invoked to set it aside ; but the ' court said that, even if the property could be distributed precisely as it would have been under the insolvent law, yet the assignment was opposed to the whole spirit of the law. If it was proposed to pay a dividend to creditors not parties to the assignment, it was (as we have seen) bad at common law; if it did not pay everybody there was no equal distribution. It is to be noticed in the case that the assignment did not transfer all the property, and so was bad in any case, and the assignment did not follow closely in any respect the provisions of the insolvent law. Edwards v. MitchelP was to the same effect, though as Wells, J., says, in a later case,^ the decision was " pointedly put on the statute of 1836." Neither in these cases, however, nor in the cases following them, is there any intimation that the assignment could be attacked by proceedings under the statute of 1838. They were all cases of trustee process by non-assenting creditors, and go no further than holding the assignments in question invalid as against attachment. Even then, if the assignee has distributed the property, there is no remedy,* and where the whole has not been distributed the assignee has a private set-off against a creditor, though not against the assignee in insolvency.^ The only case in which an assignment was avoided by a petition in insolvency was Bartlett v. Bramhall,^ and there the petition was a voluntary petition by the debtor. 1 I Gray, 233 (1854). 2 I Gray, 239 (1854). See also Zipcey v. Thompson, i Gray, 243 (1854), where, how- ever, the assignment was bad under St. 1836, as containing preferences. Grocers' Bank V. Simmons, 12 Gray, 440 (1859) ; Stanfield v. Simmons, 12 Gray, 442 (1859). « 3 Gray, 257(1855).
 * National Mechanics', etc. Bank v. Eagle Sugar Refinery, 109 Mass. 38 {1871).
 * Leland v. Drown, 12 Gray, 437 (1859) ; Bowles v. Graves, 4 Gray, 117 (1855).
 * Banfield v. Whipple, 14 Allen, 13 (1867).