The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-12-11


Ely ~. Cook.-Ths assignment was in this case
transfer Of all for the equal benefit OF ALL IT allowed no
exemptions and created preferences and provided for
no surplus until and unless call the creditors should be
paid and sasfed" In that event, and in that event
only the assnees TO return the surplus to Cook
the debtor. ID such assignment, its face, fraudu
lentf Or can such assignment without a reckless
abuse OF terms be said to be transfer made for the
of the party making the sames 1t is admitted that
without any express direction to surplus, If any,
trust by operation Of law would have resulted in favor
OF the assignee ana that such resulting trust would
then, express direction Of the precise i'm.
port that which the law, without the words, would
have implied and sanctioned, be unlawful Such
assignments, when made in good faith, are no
transfers or the use of the assignors than are
the case in the other if there be surplus on
the sale it goes obviously ought to go, and as the
instrument provides it shall to the party making the
mortgage assignment That Is "use' in either case
incident the transfer but not suse for which the
transfer made. And in this lies the whole differ
difference, not verbal technical but founded
in common sense-overlooked, admit land most
fortunately for the OF diminished litigation in
some judicial dcta but having its basis, nevertheless
in authority well a. reason Where debtor, per-
fectly solvent wishing to prevent the ordinary course
of collecting debt by Judgment and execution,
ing hindering his creditor for his and not his
creditors advantage-n other words, to promote his
own gain at the expense OF his creditors losssuch
transfer ii Is obvious, although nomnaly for the use
of others, really the statute EXPRESSES it, for the
of the person making the same" and therefore
fraudulent and void. Kellogg Sawson, Is Barbour,
Sc; Ogden Peters 15 Barb 500. But where, the
contrary the property Of the debtor 10 OF doubtful
character, and may, may not, according to circum
stances, be sufficient to discharge his debts in full and
his primary object and influencing motive is ito dis
tribute it eouitaby and fairly assignment in such
case instead Of violating the policy Of the law the
rights Of creditors would be in harmony with both-
would In the language of Mr. Justice Strong not only
be exempt from the charge of fraud but would be
mendabe." II assignments by embarrassed debtors
valid the under consideration ii seems to me-
must be adjudged. Even the plaintiffs counsel him
self on the argument appeared to coucede the point
We're it not he said for certain decisions which
did not commend themselves he admitted, to his
son, the sun would not have been instituted Those
decisions either susceptible of the distinctions which
have been adverted to- in my judgment they not
law As generally interpreted they shock the common
understanding Assignments have been set aside where
to ordinary and to judicial perception (ee Peters
supra) s1here neither actual presumptive
fraud" l not disposed blindy and hastily to fol
low these decisions, butt with Mr.. Justice Strong To
leave il to the Legislature (the appropriate Department.
to abolish If they should think proper all preferential
assignments, and, may add all other assignments,
unless officially made and officially regulated. Until
such legislative action, il il the province of the judi
cary administer the law it has been recognized for
more than half century. Judgment affirmed