Page:Harvard Law Review Volume 8.djvu/289

273 VOLUNTARY ASSIGNMENTS AND INSOLVENCY. 273 present trust by an implication of this kind, because it is not a trust made under 1836, and differs in some particulars from both statutes." So in Fairbanks v. Belknap,^ where an arrangement had been made to have assignees in pais continue the business for the ben- efit of creditors, Devens, J., said: "There could be no fraudulent preference intended where the same security was offered to all, and where the plan was to be accepted by all or to be inoperative." These last three cases, and particularly the Eagle Sugar Refinery Case, cannot be reconciled with the earlier series beginning with Wyles V. Beals, and ending with Grocers' Bank v. Simmons and Stanfield v. Simmons, — the last two of the series having been decided subsequently to the repeal, in 1856, of the law of 1836. To sum up, then, the results thus far reached : since the repeal of the assignment law of 1836, voluntary assignments stand as at common law, except so far as affected by the insolvent laws ; and it has been strongly intimated that assignments in which all the creditors can come in on equal terms are not obnoxious to the spirit of those laws. It has been held that they cannot be attacked by attachment. The law also remains as before, that a preference, or an assignment containing preferences, cannot be avoided by a creditor by attachment or trustee process. The question whether any preferences could be grounds for an involuntary petition, besides those fraudulent at common law, had been answered affirmatively in Ex parte Jordan,^ which decided that any conveyance made with intent to give a creditor a prefer- ence was a ground for a petition. The same point was decided in Lothrop V. Highland Foundry Co.^ This was a bill in equity to restrain a petition by a creditor alleging that the debtor had made two mortgages to secure the payment of pre-existing debts to the mortgagees, with intent to secure to them a preference, and to defraud his creditors. The principal point decided was that pro- ceedings in hivitum could be instituted after the repeal of the national Bankrupt Act for a cause occurring while the Act was in force, and incidentally that the conveyance in question was a ground of insolvency. It was also decided, contra to some dicta in Ex parte Jordan, that in proceedings in invitum the knowledge or intent of the person receiving the payment, transfer, or convey- ance is immaterial, though it would be material in a proceeding by 1 135 Mass. 179 (1883). » 128 Mass. 120 (1880). 2 9 Met. 292 (1845).