cretion being of necessity subject to the control and revision of the court, as in VIRGINIA it had been held not to be fraudulent per se (Marks v. Harvey, 15 Grattan, 400), to give a power to continue the business of replenishing stock, if intended merely as a means of realizing the trust fund and winding up the business.

In MARYLAND a sound discretion may be left to the trustee, but he must not be confined by the assignors to unreasonable provisions (Am. Exchange Bk., 7 Md. 390, and 11 Md. 184; An authority to the trustees "to sell gradually, in the manner or on the terms in which in the course of their business the assignors had sold and disposed of their merchandise," was held to be an indefinite postponement of the trust and void: but (Maennel v. Murdock, 13 Id. 179; see also Farquarson v. Eichelberger, 15 Id. 63) a clause authorizing the trustees to sell, &c., "whenever they shall think proper and most conducive to the interests of the trust," was not considered objectionable; the court distinguishing this case from the other: and in Berry v. Matthews (Id. 538), where the assigned estate being "sundry, real and personal estate and effects, merchandise, notes, stocks, credits, claims and demands," and these were conveyed to trustees in trust, with all convenient despatch to collect and render available all said debts, rights, credits, stocks, claims and demands, and sell all said real and personal estate and effects, "either at public or private sale, and for cash or on reasonable credits," as the trustees, “in the exercise of a sound discretion, shall deem most advisable and most for the benefit of the creditors and the trust," all public sales to be made upon reasonable previous public notice, with power to the trustees to compromise such of the debts, rights and credits, as they may think proper, and upon such terms as they may think best for the interest aforesaid, and to appoint assistants, agents and attorneys, as in their judgment the same may be necessary to enable them to fulfil the trusts, and apply the proceeds; 1st to the expenses of the trust, including the usual commission to the trustees; 2d to the payment, in preference, of certain specified debts; and 3d, to divide the residue among all the creditors of the grantors, pro rata-this was all held allowable. In ARKANSAS the rein seems to be held rather loosely over the grantor, the courts not being apparently disposed to disturb assignments for the benefit of creditors unless contrived with a design fraudulent in fact. See Hempstead v. Johnson, 18 Arkansas, 141, sect. c. So in New York and Iowa, power given to the assignee, at his discretion, to "compound, compromise and settle" the claims assigned, does not avoid it.(1) Nor an authority generally to adopt such measures in relation to the settlement of the estate, as, in the judgment of the assignee, will promote its interest. (2) Nor in Maryland even a power to the trustee to mortgage (1) Bellows v. Partridge, 19 Barbour, 178; Rerry v. Hayden, 7 Iowa, 473.

(2) Marin v. Witbeck, 18 Barbour, 389; see, however, Dunham v. Waterman, 17 N. Y. 17.

the estate conveyed, if he should deem it necessary.(1)] The reserving of a power of revocation;(2) and the introduction of such limitations and contingencies as give the debtor a control of the property, and enable him to defeat the conveyance,(3) also render the assignment fraudulent. Preferring a fictitious debt would have the same effect;(4) or a clause exempting the assignee from such duties as the law affixes to the office of an assignee; such a clause, e. g., as that the assignce should not be liable for any loss unless it happened by his own gross negligence and wilful misfeasance.(5) [But a clause which exempted the trustees from liability "tor the acts, neglects, or defaults of any attorney or agent they may appoint," and from any misfortune, loss, or damage which may happen, without their wilful default, was held not to be void, the provision being followed by an express covenant on the part of the trustees "to accept the trust and to act faithfully and [*69 justly in its execution.(6) In Litchfield v. White, 2 Sanford, 547, the assignee, while accepting the trust, covenanted to act according "to the best of his ability." The cases are not quite consistent. In some cases such clauses seem to have passed without notice.(7) Nor in New York is an assignment vitiated by a provision "that the assignees shall be paid all expenses which may necessarily be incurred by them in the execution of the trust, including their charge for drawing the assignment, together with a just and reasonable compensation for their labor, time, services and attention" (Campbell v. Woodworth, 33 Barb. 427). But these provisions are dangerous, and can only be sustained-as the one above given was-because nothing is provided for but that which the law provided for of itself. Sce Nichols v. McEwen, 17 N. Y. R. 27, where a provision for the payment to the assignee of a "reasonable counsel fee," in addition to the reasonable costs, expenses, charges and commissions of executing the assignment, avoided the assignment; and Barney v. Griffin, 2 Comstock, 372 is to a similar eflect.]

It has been held also, that the selection of an assignee, who, from desperate bodily illness, or mental infirmity, or distance from the place, is incapable of performing the duties of a trustee, evinces such a disposition to keep the property within the control and disposition of the assignor, or at least to render it unprofitable to the creditors, as will (1) Beatty v. Davis, 9 Gill, 213.

(2) Riggs v Murray, 2 Johnson's Chancery, 565, 576, not overruled in S. C. on error, 15 Johnson, 571; and approved in Grover v. Wakeman, 11 Wendell, 187, 196.

ton v.

(3) Stanley v. Bance, 27 Missouri, 270; Walter v. Warner, 24 Id. 630, and see MarMaddox, 58 Id., as to how far the defect of a prior deed may be cured by a second one. Whallon v. Scott, 10 Watts, 237, 244; and see Addington v. Etheridge, 12 Grattan. (4) Webb v. Daggett, 2 Barbour, 10; see also Planck v. Shermerhorn, 3 Barbour's Chancery, 644.

(5) Litchfield v. White, 3 Sanford, 547.

(6) Jacobs v. Allen, 18 Barbour, 549; and see Baldwin v. Peet, 22 Texas, 712. (7) Conkling v. Carson, 11 Illinois, 503; Kettlewell v. Stewart, 8 Gill, 473.

make the assignment fraudulent and void;(1) and the selection of an insolvent person, or one not of sufficient character and pecuniary ability to afford assurance that the trust will be properly administered, is prima facie evidence of fraud ;(2) but not conclusively so.(3)

It is a general principle also, that stipulations tending to coerce the creditors unreasonably, to the prejudice of their just claims and the advantage of the assignor, render the assignment fraudulent. A power given to the assignee to compound with the creditors,(4) or to either the assignor or assignee, subsequently to declare or alter preferences,(5) renders the deed fraudulent, or a power to the assignee to hasten or to postpone the time of sale, so as to enable him to defeat any creditor who should attempt to subject the interest of the assignor to levy and sale, no matter in what words cloaked,(6) as where power was given to the assignee to sell at such time or times and in such manner as should be most conducive to the interests of creditors. An assignment by an insolvent firm of partnership property to the payment of the individual debt, of one of the partners, renders the assignment void (Wilson v. Robertson, 21 N. Y. R. 587); but an assignment of all individual as well as of all partnership property is not void on its face where there is nothing appearing thereon to show that all the partners may not have had individual property, when the agreement was made, more than sufficient to pay their individual debts; and where the assignors can in fact show, as in case of question it lies on them to do, that they had such property. Knauth v. Basset, 34 Barbour, 31.

But the circumstance which most usually renders these assignments fraudulent, is the reservation of a use or benefit to the grantor. It is a settled principle, that a reservation to the grantor or his family, or any one not a creditor, of any trust, profit or benefit out of the property conveyed, or of a credit on account of any part of it, is a fraud in law, and avoids the whole assignment.(7) Accordingly, a stipulation for a main(1) Cram v. Mitchell, 1 Sanford's Chancery, 251; Currie v. Hart, 2 Id. 353, 356. (2) Reed v. Emery, 8 Paige, 417; Connah v. Sedgwick, 1 Barbour, 211, 214. (3) Clark v. Groom, 24 Illinois, 416.

(4) Wakeman v. Grover, 4 Paige, 24, 41, S. C. on error, 11 Wendell, 187, 203; Hudson et al. v. Maze, 3 Scammon, 579, 583; Kalkman v. McEldery, 16 Maryland, 68.

(5) Barnum v. Hempstead, 7 Paige, 569, 572; Boardman v. Halliday, 10 Id. 224, 228; Strong v. Skinner, 4 Barbour's Supreme Court, 547, 561; Averill v. Loucks, 6 Id. 471, 476; Sheldon v. Dodge, 4 Denio, 218, 222; Gazzam v. Poyntz, 4 Alabama, 374, 380; Mitchell v. Stiles, 1 Harris, 306.

(6) Jessup v. Hulse, 29 Barbour, 539.

(7) Mackie v. Cairns, 5 Cowan, 549; Jackson v. Parker, 9 Id. 73, 86; Mead v. Phillips and others, 1 Sanford's Chancery, 83, 86; Goodrich v. Downs, 6 Hill's N. Y., 438, 440; Kissam v. Edmundson et al., 1 Iredell's Equity, 180; Anderson et al. . Fuller et al., 1 McMullan's Equity, 27; McAllister v. Marshall, 6 Binney, 338, 344; Shaffer v. Watkins, 7 Watts & Sergeant, 219, 227; Faunce v. Lesley, 6 Barr, 121, 123; Peacock v. Tompkins, Meigs, 317, 328; Austin v. Johnson, 7 Humphreys, 191, 192; Leadman v. Harris, 3 Devereux, 144; Byrd v. Bradley, 2 B. Monroe, 239; and see Quarles v. Ker, 14 Grattan, 48; London v. Parsley, 7 James' Law, N. C. 313.

[*70

tenance for the grantor or his family, or that the grantor shall be employed as agent or manager at a fixed salary,(1) or a reservation of a specific sum of money, or of so much a year to the grantor.(2) Even "so much as I am by law allowed to retain from execution," avoids the deed in Tennessee, though not in Pennsylvania.(3) But courts have hesitated in applying this as a rule in all cases, witout regard to circumstances: it has been held (4) that a reservation of " means of paying his small debts under fifty dollars, and ordinary family expenses," and (5) of three hundred and fifty dollars" to his individual use and disposition, for the purpose of paying some small claims due from him, of high honorary obligation, which are not now liquidated or specifically ascertained," and that(6) a reservation of six months' possession, did not, under the circumstances, of themselves, avoid the deed. It seems also that there is no objection to the trustees, of their own accord, employing the debtor as agent or manager at a reasonable salary ;(7) nor to a clause in the deed giving them that power if they think fit.(8) See remarks in Fitler v. Maitland 5 Watts & Sergeant, 307, 310; and also in Nicholson v. Leavitt, 4 Sanford, 270; and Mulford v. Shirk, 26 Penna. State, 473; Maenel v. Murdock, 13 Maryland, 180, citing Hennesey v. Western Bank 6 Watts & Sergeant, 312. And it must be observed that in Pennsylvania, at least, and perhaps in other States, the exception from a general assignment of certain specific property without any stipulation, reservation or condition in favor of the assignor does not render it void as to creditors: In other words, partial assignments are allowable provided they be partial ones which do no injury to creditors, and do not tend to hinder or delay them. Hence where the members of a firm executed a general assignment excepting therefrom "the bedsteads, bedding, bed and table linen, also two mahogany bureaus being part of the household furniture" of one of them; and "all the household fur

(1) Johnston's Heirs v. Harvy, 2 Penrose & Watts, 82, 92; McClurg v. Lecky, 3 Id. $3, 91; Henderson v. Downing, 24 Mississippi, 117.

(2) Harris et al. v. Sumner, 2 Pickering, 129; Richards v. Hazzard, 1 Stewart & Porter, 139, 156; Mackie & Cairns, 5 Cowen, 549, considered in Butler v. Van Wyck, 1 Hill's N. Y. 463, and Goodrich v. Downs, 6 Id. 440, as overruling contrary opinions in Riggs. Murray, 2 Johnson's Chancery, 565, and S. C. on error, 15 Johnson, 571, and of course those in Austin v. Bell, 20 Id. 442, 447, grounded upon it.

(3) Sugg . Tillman, 2 Swan, 210; but contra Mulford v. Shirk, 26 Penna. State, 473. (4) Canal Bank v. Cox and Tr., 6 Greenleaf, 395, 399.

(5) Skipwith's Ex'or v. Cunningham, &c., 8 Leigh, 272, 273, 292.

(6) Kevan et als. v. Branch, 1 Grattan, 275.

(7) Shattuck v. Freeman, 1 Metcalf, 10, 14; Vernon, &c., v. Morton & Smith, &c., 8 Data, 247, 252; Pearson & Anderson, &c., v. Rockhill & Co., 4 B. Monroe, 296, 301; and see Linn ». Wright, 18 Texas, 317.

(8) Planters' and Merchants' Bank of Mobile v. Clarke, 7 Alabama, 765, 770; Marks e. Hill, 15 Grattan, 400, and cases there cited; also Janes v. Whitbread, 11 C. B. 406, though this case would not, perhaps, in its entire extent, be followed in America.

niture" of the other; the assignment was not considered to be vitiated by this; since there was no attempt to keep from creditors the property not conveyed, by reserving it for the grantor or his family, or giving it any other special direction; but a non-conveyance simply of it, by which it was left where it was, and liable of course to execution, Knight v. Waterman, 36 Penn. State, 261.

The reservation to the grantor, of the surplus after payment of all the creditors, is not fraudulent; for it is no more than the law would imply ;(1) nor a reservation to partners individually, of a surplus of partnership property, after paying partnership debts; (2) the surplus being individual property and left still liable to individual debts; but aliter of a reservation by an insolvent firm assigning their individual property as well as that of their firm; and there being creditors of the assignors individually as well as in their character as partners. Coulomb v. Caldwell, 6 N. Y. 484. An express reservation of the surplus upon an assignment of all or nearly all the debtor's property, to or for a part of his creditors, has been decided (3) to be fraudulent, whether in fact there was any surplus or not; see Doremus v. Lewis, 8 Barbour's S. Ct. 124; and in Dana, Adm'r, v. Lull, 17 Vermont, 390, it was decided, that an assignment of all the debtor's property for the benefit of a portion of his creditors, without a provision that the surplus shall be distributed among the creditors, is fraudulent, by reason of the resulting trust of the surplus, and this, even if it turns out that there is no surplus. [But an assignment for the equal benefit of all creditors equally in proportion to the amount of their debts, until they are fully paid and satisfied, and to return the surplus to the assignor, is good.(4) As is also such reservations where some debts were *preferred, provided the surplus to *71] be returned was that remaining after payment of all debts.(5)] And in Rahn v. McElrath, 6 Watts, 151, 155, an express reservation of the surplus was held not to be fraudulent on the ground that the delay of other creditors would be no longer than might be necessary to turn the property into money, unless where the amount of property assigned was so excessive as to create a presumption of fraud in fact ;(6) a secret reservation, however, of the surplus upon a conveyance absolute upon its face, is admitted to be a fraud.(7) In Hindman v. Dill & Co., 11

(1) Hall et al. v. Denison et tr., 17 Vermont, 311, 318. (2) Hubler v. Waterman, 33 Penna. 414.

(3) Suydam & Jackson v. Martin, &c., Wright, 698; Goodrich v. Downs, 6 Hill's N. Y. 438; Strong v. Skinner, 4 Barbour's Supreme Court, 547, 559; Cole v. Jessup, 2 Id. 309; and Barney v. Griffin, 2 Comstock, 365, 371; dicta in Leitch v. Hollister, 4 Id. 214. (4) Ely v. Cook, 18 Barbour, 612.

(5) Beatty, Trustee, v. Davis, 9 Gill, 213.

(6) And see Conkling v. Carson, 11 Illinois, 509.

(7) McCulloch v. Hutchinson, 7 Watts, 434; Smith v. Lowell, 6 New Hampshire, 67; Smith v. Smith, 11 Id. 460, 465.