Birmingham age-herald., 1895-04-30

stances whatever. The powers and lim- ltations upon the powers of an insolvent corporation to deal with it's property are precisely the same in all essentials as the powers and limitations upon the powers of insolvent individuals and insolvent partnerships. The estate of the debtor in each class is essentially the same Inc corporation, no less than the individ- ual and the partnership, is at law and in equity the owner of it's property. The rights, remedies and estates of creditors of each are also the same. They do not own the property of their corporation debtor, or any interest in it, in equity or at law, any more than they own the property of their individual or partner ship debtor. Their right against each Is the same to have their debts paid out of the property, but this right is not that of cestui que trust, but whether the property is corporate or individual or partnership, it is the right of a creditor simply. Confessedly even this right may be defeated as to any particular cred 1tors by a sale of the property in pay ment of another creditor, or by it's being taken on execution in favor of another, or even by it's sale by the debtor-corpo- ration, individual or partnership-to third person, and this, although such purchaser have notice of the insolvency of the debtor. All which, as l have seen, would be impossible if the property con stituted a trust estate, with the corpo- ration as trustee and the creditors as cestui que trust, for in such case all who take with notice of the insolvency would take subject to the trust, and them selves be held as trustees in invitum
 Not only are the rights of individual, partnership and corporation creditors the same against their inSolVent debtors
 estates, and each different in the same way from the rights of cestui que trust
 but the remedies of a corporation cred nf n cfo ft1fe
 cisely those of a creditor of an individual or partnership. The remedy of each class Of creditors may, upon a given state of facts, be in equity; but when this Is so it is not because of any sup posed trust, but upon some recognized ground of equity jurisprudence, as where the debtor has fraudulently trans ierred ms or its property, and chancery IS invoked to set aside the transfer and subject the property. And when chan cery has thus assumed jurisdiction it Will administer the estate for the equal benefit of all creditors before it. and to that end the court becomes a sort of trustee sub modo in the administration ot the property. but not with any refer ence to the character of the estate, as peing held in trust or otherwise, before and at the time Jurisdiction attached
 Not all the publicists and courts in thls country, nor the ablest of them, countenance this so-called American doc urine. MT. Pomeroy expressly repudiates It. He says: "In applying this princi- pie (of constructive trusts) care should be taken to distinguish between actual trusts and those relations which are only trusts by way. of metaphor; be- tween persons who are true trustees. holding the legal title for a beneficial owner, and those who simply occupy a position which is analogous in some re- spects to that of trustee The use of these terms to designate relations and parties which have no essential element in common with actual trusts and trus-