Page:Harvard Law Review Volume 8.djvu/293

277 VOLUNTARY ASSIGNMENTS AND INSOLVENCY. 277 debtor. It also provides that the assignees in insolvency, " if the assignment shall be voidable by them," shall be entitled to recover the net proceeds in money of any sales of property by the volun- tary assignee. This statute does not help us much on the ques- tion we have been considering. On the one hand, it does not distinctly recognize assignments as valid, but only protects the acts of trustees to a certain extent, and in certain cases ; and, on the other hand, it protects them even where proceedings are insti- tuted against the debtor upon some ground of section 112, other than a fraudulent conveyance. At first sight, the expression, " if the assignment shall be voidable," would seem to imply that some assignments are not voidable; the force of this inference is weak- ened, however, by its ambiguity. An assignment might be valid under this section either because it was not in itself a fraudulent conveyance or because the action to avoid it was not brought in due season. The Act is, therefore, too ambiguous to allow of strong inferences for or against the validity of voluntary assign- ments in general. Of considerable weight, however, is the fact that the Legislature, dealing with the general subject in this Act, with a knowledge that assignments were being made every day of the session, did not condemn them plainly or directly make them acts of insolvency. We arrive, then, at this result. The question is still open in Massachusetts. The strongest considerations of convenience re- quire that the system of voluntary assignments shall be upheld. By that method the business affairs of a debtor can often be settled in three months, — frequently the arrangements are sub- stantially completed in a few weeks, or even days, — while at least six to twelve months are required under the insolvent law. In practice, although the assignee is usually chosen by the debtor, yet care is taken to choose a man who has the confidence of the creditors, in order to induce them to come into the arrangement. The fear of delay by insolvency proceedings, and of frightening away the creditors, will in general be sufficient to induce the debtor to have the assignment drawn in a fair and equitable form. Any assignment with unjust or fraudulent provisions, may be a ground of proceedings in invitum at once. The expense is also much less under a voluntary assignment, and the simplicity and speediness of the method may often make possible great economy in the business adjustments of the debtor. It cannot be denied that there is some force in the arguments