Year: 1869




A Voluntary Assignment Of Property 10 Cred.


ifors without Going 10 an Assignee.


Before Judge Blatchford. ~2'


In tae Matter OF Spencer ID. Schuyler, Bank
rupt-In this case the discharge OF the bankrupt II
opposed on the ground that he, the 7th OF Decem
ber 1857 made voluntary assignment Of all his
property for the benefit Of all mis- creditors to 10
Beph Westcott; that he was insovent at the time
and that he made such assignment with o view tl
prevent such property from coming to his assignee
IN bankruptcy, and from being distributed under the
Bankruptcy act and to defeat the object OF that act
and TO impede, hinder and delay its operation and
eject and evade Its provisions The voluntary pc
tItfon OF the bankrupt was filed on the 18th of De-
cember, 1sa7 The opposition to the discharge is
made by HUNT, Tilllnghast A Co. and by Mott,
Brothers Co., creditors Of the bankrupt. The
voluntary assignee, Westcott, accepted the assign
ment and entered on the execution OF the trust un-
1t and took possession OF the assigned property
Immediately on doing so he found 1t would be i'm
empioyments, to attend to the execution Of the
trnst, and thereupon paper was prepared. which
bears date December TO- 1867 and was signed by many
Of the creditors of the bankrupt and among others
by Hunt, Tlllinghast Co., and Mott, Brothers Il
Co, which recites the fact OF the assignment to
Mestcott and that 1t was "a general assignment of
all his property III trust for the payment Of all his
creditors without partiality preference and that
Nestcott is willing TO surrender the trust and that
Charles RAYMOND is familiar with the affairs and
business OF the court and then proceeds:-"rhere-
fore We the undersigned creditors OF the said Schuy
ley nereoy consent that the said Wescott may trans
fer the estate, property and effects which came to
him under said assignment and we consent to and
request of said Raymond, that he accept such trans
fer. take possession OF said estate dispose of the
same and distribute the net avails thereof among
all the creditors of said Schuyler according TO the
terms OF said assignment In pursuance of such re-
quest and consent, Westcott by an instrument In
writing dated January 1858, transferred to Ray
bankrupt to Westcottt 10 convert 1t into money and
TO pay the debts OF the bankrupt in the manner spe
cfed by the assignment from the bankrupt to West
cott On this state Of facts IL is insisted on the
part Of the bankrupt, thar however obnoxious
the assignment by the bankrupt to Mestcott,
may be to the provisions OF the Bankruptcy act the
creditors who take these objections, are estopped
from questioning the assignment or urging the OBJ
jectonS, by reason of the fact that these creditors,
while enjoying the free election OF ratifying repu
dating the assignment, have chosen to ratiiy 1t.
think this point Is well taken. On the general prn-
cples OF equity Jurisprudence IL is very clear that
these obiecting creditors would never be allowed
under these circumstances to come into q court of
equity and impeach the voluntary assignment either
by direct proceeding to set aside or In any other
assignment if they had been parties to 1t on lis
face. ii they themselves had been the voluntary
as Westcott did, they would not be allowed as
creditors, to attack 1t as fraudulent and void, or
against the bankruptcy act ex tupt ea,tso non ot
Ten dctiO Yet their position is no different from
that 1t would have been If they had been assignees
under the assignment as well as creditors. They be-
came artes to Il by the paper they signed, and the
effect OF their signatures to that paper, followed by
the transfer from Wescott to Raymond, was the same
as regarded their relations TO the assignment as II
their consent to the original execution OF the assign
ment had been written thereon simultaneously with
such execution. The question OF withholding dis
charge for any OF the reasons specified in section
twenty whine, when the bankrupt has taken the oath
required by that section and 1t appears that he has
conf0rmed to the requirements of the act. is one
whereon the creditors are the attacking party.
The objecting creditors are estopped from urging
these objections; and as no other objection Is
serOusy urged by them and no other creditor op-
poses, discharge Will be granted when d certificate
OF conformity is furnished by the Register.


A Question Of Mortgage.


! In the Matter or the soldiers Business Messenger
ana Despatch Company, nkrupts.-Judge Batch
ford in this decides:-I think that the mortgage
In question in this is within the fourteenth
tion OF the Bankrupt act-a mortgage OF goods and
chattels made as security for q debt in good faith
and for present consideration and not Invalid as
having been made in violation Of any law Of the
State OF New York or Of the United States. /
do not think from the evidence that the
mortgage the persons for whom he
acted had reasonable cause TO believe that
the mortgage was made with view or intent TO pre-
vent the property OF the mortgagers from coming to
their assignee In bankruptcy, or from beng dlstri-
buted under the Bankrupt act, or to defeat the OBJ
ject Of or in any way impair, hinder defeat impede
delay the operation and effect OF such act, to
evade any OF tue provisions OF such act, reasona
bic cause TO believe that fraud on the act in
tended. Nor does the evidence establish that the
mortgage was made with any such view or intent.
The only difficulty Is tina: the mortgage was not duly
recorded TO include property in New Jersey. The
matter is sent back to tie referee for further testi
mony unless the parties come to an amicabe settle
m