The comet. [volume] (Jackson, Miss.) 1877-1882, 1881-12-10

counsel fees which the gfantor might there
AFTER become liable Tor In any litigation
growing out Of tho assignment; or II may
mean that the fec for the conveyance and
for maintaining II, II assailed by proceed
ings against the grantOrs, were TO be paid
by the trustee. II the former ID the mean
lug, 1t - tllegal and avoids the instruments.
II the latter Is the true Interpretation, II IL
free nom objection, for il was allowable
ton OF counsel who served them In max
ing the assignment, just AZ they could SC.
sure and other creditor, and the direction
to the trustee to pay any fees which might
accrue against them " concerning the mat
ter involved in the assignment" was prob
ably no more than to direct him TO pay
just and proper counsel fees for defending
his trust. II any assault should be made
on the assignment through the court, and
Tees were incurred In resisting it, and the
assignment was upheld, the fees would
be properly paid out Of the trust fund, but
II the assignment was subyerted, no charge
could pc made against that fund for fees
incurred In the effort to maintain the
assignment. Therefore the direction TO
pay fees against tho grantors " concerning
She matter involved in this assignment"
rs harmless to creditors. The whole eX-
preston may be no more that pleonasm
to express the idea that the Just and
proper charge Of counsel for services
about the assignment, was to be paid.
We do not know what it means, and mnst
solve the doubt in favor of the validity of
the instrument, with respect to this clause
Of doubtful Interpretation, in accordance
with the familiar rule Of construction ex-
pressed by the maxim Vi res mGyis galeat
guam peredt
A presumption Of an intent to defraud
is not to be INDUCED, but the contrary il
the legal intendment which must prevail
until overcome by reasonable certainty,
that the thing complained of is such as the
law condemns. 1t is only when the au-
thority is Is express to do and illegal act,
that the instrument will be held void.-
Bump on frand, Con-, p. $50. Burrlll ON
Assig. p. 421.
The court must be able to say that the
power conferred Is clearly fraudulent, be-
fore 1t can properly condemn an instru-
ment for containing II. The court is not
to be astuto to discover grounds. on which
TO condemn assignments for creditors, but
Is rather to uphold them, unless they are
plainly vicious in their terms.
4. The second instruction for the plain |
tiffs below was erroneous. II was a cir |
be considered By tie iury, but |
II was wrong 10 say that II Justified the in |
ference which would condemn the assign |
ment. The instruction announces the |
value of the circumstance, and estimates |
1t too highly. IL was not for the court to |
tell the jury what inference this circum-
stance warranted, but II should have been |
left for the jury TO weigh IL and fix its |
vs. part OF the evidence TO q verdict.
3. The fact that McCarroll, one Of the |
assignors, was administrators of the
estate of JnO. Il. McCarroll, deceased, was
disclosed by evidence alia,ade, and by SINH
lar evidence tits abundantly shown that
The preference made by the assignment in
favor of said decedent, was not the reserv-
ition Of any benefit to McCarroll the grant
Or In the assignment. The fact ON which
he instruction is based, and the harmless.
ness Of it, are both shown by evidence
lehors the deed.
The one neutralizes the other.
Reversed and new trial granted.
fro DE REPORTED