Page:Harvard Law Review Volume 8.djvu/288

272 272 HARVARD LAW REVIEW. Then came the important case of National Mechanics' and Trad- ers' Bank v. Eagle Sugar Refinery.^ This also was a trustee process against voluntary assignees, and, as before, the trust pro- vided for a pro rata devision among all creditors who should come into it. It was held an attaching creditor could not upset the assignment. Wells, J., says : " It is to be observed that, under 1836, ch. 238, § II, an assignment contrary to its provisions is de- clared to be invalid and ineffectual as against an attachment or execution in behalf of any creditor not a party to it, while under 1838, ch. 163, § 10, the invalidity could be availed of only by the assignee constituted by the proceedings in insolvency;" and later, " We are unable to see in what respect a conveyance to trus- tees, like the present, stands in any different relation to the general insolvent laws of Massachusetts, or the bankruptcy laws of the United States, from that of a simple conveyance to a creditor by way of preference. We are inclined, therefore, to ascribe to statute 1836, ch. 238, the whole legal effect of the decisions first referred to [Wyles v. Beals and cases following it]. That statute having been repealed, the assignment in question, even if voidable by an assignee in bankruptcy or insolvency, cannot be avoid^-d by a creditor for his individual benefit without proof of that which would constitute fraud at common law." To the same effect are the remarks of Woodbury, J., in Adam^ V. Blodgett.^ That was an action of assumpsit by a creditor against the voluntary assignee. After noting that the assignment contained no preferences, and therefore was not contra to the Act of 1836, and that in any case that Act had been repealed by the Act of 1838, he says : — " Nor does the Insolvent Act in terms prohibit any such conveyance as this, nor can it be implied from the fact that the two courses are exactly the same. They differ materially and unfavorably to the debtor. This trust dispenses with several forms and considerable expense, and holds the debtor still liable for the balance, Whereas that course releases the debtor from liability for the balance, and subjects him to go through the statutory course in order to entide himself to be released. . . . The in- solvent statute of 1838 was held to repeal the assignment statute of 1836 because it substituted one statute system for another alike in substance, but differing in form. But here the Act of 1838 does not repeal the ' ■ .. ' » 1 109 Mass. 38 (187 1 ). a 2 Woodbury & Minot, 233 (1846), U. S. Cir. Ct., ist Circuit