in New Hampshire since the act of July 5th, 1834, both of which provide for equality of distribution among all the creditors, conditions of release or discharge, are fraudulent.(1) In Pennsylvania, Virginia, and South Carolina, assignments for the benefit of such as shall release, are valid, being now too long established to be overthrown ;(2) and on the authority of the *Pennsylvania decisions, Marshall, C. J., with [*73 some doubt and regret, sustained such an assignment in a Pennsylvania case; (3) in South Carolina, however, it has been held that an express reservation of the surplus to the grantor, would be fraudulent;(4) and though this distinction is denied in Pennsylvania ;(5) yet perhaps it is well taken, upon the ground that in the face of such an express provision, chancery probably could not exercise its jurisdiction to let the creditor come in upon the surplus in the hands of the trustee, without overturning the deed. (6) In Massachusetts such conditions seem to be sustained ;(7) (8) and partly upon the supposed opinions of the profession in that region, a condition of release was upheld in Halsey et al. v. Whitney et al., 4 Mason, 207, 230, 237. In Alabama, a condition of release was decided to be valid in an early case (two judges dissenting);(9) and that decision has reluctantly been adhered to, on the ground of mere authority, the principle being strongly condemned, in Ashurst v. Martin, 9 Porter, 567, 573; see also Smith v. Leavitts, 10 Alabama, 93, 105: and the latter cases in that State have approved and adopted the general principle of Grover v. Wakeman, that an assignment for the benefit of creditors must be absolute and unconditional, without reserved benefit or attempted coercion.(10) And it has since been decided that a condition of release was an express reservation of the residue to the grantor, in case of non-release, makes the assignment

(1) Pearson v. Crosby, 23 Maine, 261; Hurd v. Silsby and Trustees, 10 New Hampshire, 108.

(2) Lippincott v. Barker, 2 Binney, 174; Livingston v. Bell, 3 Watts, 198, 301; Bayne . Wylie, 10 Id. 309, 313; Mechanics' Bank v. Gorman, 8 Watts & Sergeant, 304, 308; Peerpoint & Lord ». Graham, 4 Washington, 232, 236; Skipwith's Ex'or v. Cunningham, &c., 8 Leigh, 272, 290; Kevan et als. v. Branch, 1 Grattan, 275; Niolon v. Douglas and others, 2 Hill's Chancery, 443, 452; Le Prince v. Guillemot, 1 Richardson's Equity, 187, 218.

(3) Brashear v. West and others, 7 Peter's, 609, 615.

(4) Niolon v. Douglas and others, 2 Hill's Chancery, 443, 453; Jacot v. Corbett et al., 1 Cheeve's Chancery, 71, 78.

(5) Dana v. The Bank of the United States, 5 Watts & Sergeant, 224, 250.

(6) See Doremus v. Lewis, 8 Barbour's S. Ct. 124.

(7) Borden et al. v. Sumner, 4 Pickering, 265; Andrews v. Ludlow and Trs., 5 Id. 28, 33; Nostrand v. Atwood, 19 Id. 281.

(8) Robinson v. Rapelye & Smith, 2 Stewart, 86, 100.

(9) Gazzam v. Poyntz, 4 Alabama, 374, 382; Wiswall v. Ticknor & Day, 6 Id. 179, 184.

(10) Grimshaw & Brown v. Walker, 12 Id. 101; See Brown, Trustee v. Lyon & O'Neal, 17 Id. 659, 663; West, Oliver & Co. v. Snodgrass, 17 Alabama, 549.

fraudulent and void.(1) See the subject of the validity of assignments, with a stipulation for a release, discussed at length in McCall et al. v. Hinkley & Woodward, 4 Gill, 129.

A leading and recent chancery decision in Rhode Island (Nightingale v. Harris, 6 R. I. 321), while admitting the general rules about the necessity of a complete surrender of the debtor's property and other rules usually prevalent, puts the law of assignments in that State, more on the merits of the individual case, than on the hard grounds of general policy which have been adopted in Pennsylvania and in some other States. Thus an assignment is held, in Rhode Island not to be invalidated because it does not convey in terms all the debtor's property, if it conveys it in fact; nor because it prefers certain creditors, giving one class, say, 30 per cent., and another 15 per cent., only on their debts, turning the balance over to general creditors, if it is plain from the relative value of the property and the amount of debts that the assignor could have expected nothing for himself. Nor will it be defeated even by the fact that it makes provisions for persons who were once creditors of the assignor, but are no longer legally so, because under a former assignment they have released the assignor, if such persons have in point of fact derived no benefit by their release, and so still remain creditors in a moral view. The court, however, would instruct the assignor to pay nothing out of the assigned fund upon the released claim. See, too, Cox v. Platt, 32 Barbour, 130; and also the views entertained in Texas (Baldwin v. Peet, 22 Texas, 712), where a trust that in many States would be held fraudulent in law, was considered as open to imputations of fraud in fact alone.

If the time allowed for a release is unreasonably short, it will render the conveyance fraudulent, even where a provision of release is not deemed unlawful.(2)

When a condition of release is sustained, equity will decree the surplus to those creditors who have not acceded to the deed. (3)

An assignment which is fraudulent in any of its provisions is void in toto, as against those entitled to take advantage of the fraud; this appears to *depend upon the principle, that if a contract be fraudu*74] lent and void in part it is void altogether, because contracts are entire; but the same deed may contain several distinct contracts of con(1) Fox v. Adams et al., 5 Greenleaf, 245, 253; Ashurst v. Martin, 9 Porter, 567, 574. (2) Brashear v. West and others, 7 Peters, 609, 615; Vaughan . Evans and others, 1 Hill's Chancery, 414, 422; Vernon, &c., v. Morton & Smith, &c., 8 Dana, 247, 254; Skipwith's Ex'or v. Cunningham, &c., 8 Leigh, 272, 295.

(3) Mackie & Cairns, 5 Cowen, 549, 580; Goodrich v. Downs, 6 Hill's N. Y. 438, 440; Fiedler v. Day, 2 Sanford's S. Ct. 594, 597; Harris et al v. Sumner, 2 Pickering, 129, 137; McClurg v. Lecky, 3 Penrose & Watts, 83, 94; Irwin v. Keen, 3 Wharton, 347, 355; Halsey et al. v. Whitney et al., 4 Mason, 207, 230; Ticknor & Day v. Wiswall, 9 Alabama, 305, 311; Kissam v. Edmundson et al., 1 Iredell's Equity, 180, 184; Hafner v. Irwin, 1 Iredell's Law, 490, 498.

veyance, and then the circumstance that one contract is fraudulent, will not render void another contract, which is legally distinct from it.(1)

A creditor who has confirmed a fraudulent deed, by receiving a benefit under it, or has become a party to it, is estopped from afterwards impeaching it ;(2) and an insolvent's assignee who has affirmed a fraudulent sale of the insolvent by suing for the price and attaching the buyer's property, cannot afterwards set aside the sale and maintain trover for the property.(3)

When an assignment is set aside for fraud, the assignee is not answerable for payments made under it to bona fide creditors before the filing of the bill;(4) or money retained under it by him as a bona fide creditor.(5)

In several of the States, for example, New Jersey, (6) Maine, (7) New Hampshire,(8) and Connecticut,(9) preference in general assignments for creditors by insolvent persons are prohibited by statute;(10) and these statutes have generally been held to extend only to general assignments.(11) In Ohio, by the acts of 1835 and 1838, fraudulent assignments, and assignments in contemplation of insolvency, to a trustee for creditors with preferences, enure to the equal benefit of all the creditors; and this, though limited to assignments to a trustee, and not extending to conveyances directly to creditors, applies where the fraud is only in the assignor.(12) In Pennsylvania, by an act of 17th April, 1843, assignments by insolvent debtors to trustees, to prefer one or more creditors, except for payment of wages of labor to the extent of fifty dollars, were directed to be construed as enuring to the benefit of all the creditors in proportion to their respective demands. Under this act, an assignment to pay preferred debts, not being those of laborers, is not void, but the assignment operates for the benefit of creditors (1) Skipwith's Ex'or v. Cunningham, &c., 8 Leigh, 272, 293; Anderson et al. v. Hooks et al., 9 Alabama, 705, 712, and see Cox v. Platt, 32 Barbour, 130.

(2) Adlum v. Yard, 1 Rawle, 163, 171; Burrows & Jennings v. Alter and others, 7 Missouri, 424.

(3) Butler v. Hildreth, 5 Metcalf, 49.

(4) Wakeman v. Grover, 4 Paige, 24, 42; Ames v. Blunt, 5 Id. 13, 22; Stewart v. McMinn, 5 Watts & Sergeant, 100, 103; Hutchins v. Sprague et al., 4 New Hampshire, 469, 477; Crowningshield v. Kittridge, 7 Metcalf, 520, 523.

(5) Peacock v. Tompkins, Meigs, 317, 329.

(6) Act of 23 Feb., 1820, Rev. Laws, 674, 1 Elmer, 16.

(7) Act of Ap. 1, 1836, 3 Laws of Maine, 550, ch. 761.

(8) Act of July 5, 1834.

(9) Act of 1828, c. 3, p. 182, and see Harvey v. Mix, 24 Connecticut, 423. (10) Varnum v. Camp, 1 Green, 326; Pike v. Bacon, 21 Maine, 280.

(11) Bates v. Coe, 10 Connecticut, 281, 293; Mer. Man. Co. v. Smith, 8 New Hampshire, 347; Beard v. Kimball and Trustees, 11 Id. 471; Barker v. Hall and Trustee, 13 Id. 298, 300. See also the statue of Massachusetts, of 1836, c. 238, and Henshaw v. Sumner, 23 Pickering, 446, 452.

(12) Hull v. Jeffrey et al., 8 Ohio, 390; Harshman, Rench and others v. Lowe and others, 9 Id. 92; Wilcox and Welch v. Kellogg and others, 11 Id. 394; Mitchell v. Gazzam and others, 12 Id. 315.

generally; Law v. Mills, 18 Penna. *Stat., 185; Weiner v. Davis, *75] Id., 331; although upon an assignment in trust for such creditors as shall release, non-releasing creditors are excluded.(1) In Georgia, assignments for the benefit of some creditors to the exclusion of others, by persons unable to pay their debts, are by statute made fraudulent and void against creditors: Act of 1818;(2) yet absolute and bona fide sales of property to a creditor in satisfaction of his claim, are valid.(3)

In those States in which the principle of preferences has not been proscribed by statute, it is now viewed with strong disfavor, and the determination is universal to support it no further than a respect for adjudged cases requires.(4) The view now generally adopted appears to be this: that since the claims of creditors may be meritorious in unequal degrees, and since particular creditors have it in their power to obtain a priority by legal proceedings, the preference of creditors is an allowed object or result of a debtor's assignment, but that it is not permitted to be used as a means of accomplishing ends which are not the legitimate objects of a debtor's efforts.(5)

[A general creditor cannot maintain an action to set aside an assignment as fraudulent and void against creditors; he must have obtained a judgment. Neustadt v. Joel, 2 Duer, 532; Ogden v. Prentice, 33 Barbour, 162. As to proceedings to reach by process of equity the avails of property fraudulently conveyed, see Dana v. Haskell, 41 Maine, 25.]

(1) Lea's Appeal, 9 Barr, 504. "There is, however, a distinction to be observed between the effect of a conveyance by a debtor in failing circumstances made to pay one or more of his debts, and that intent to hinder and delay his other creditors, against which the statute of 13th Eliz. is aimed. An insolvent debtor may prefer one creditor to another, either by judgment or deed, in any mode except by an assignment in trust. The effect of such preference may be to delay a creditor not preferred; in fact, to prevent his obtaining payment at all; but if the motive-the honest intent was to pay the preferred debt, the transaction is not invalidated by the statute. The statute of 13th Eliz. is aimed only at intended fraud. But the payment of a debt to one creditor is no fraud upon another creditor, no legal injury to him. It was remarked incidentally by Gibson, C. J., in Gans v. Renshaw, 2 Barr, 36, that though an insolvent debtor may give such preferences to particular creditors as he may see proper, yet if the motive be not payment of his debts, but, in the language of the statute, to "delay, hinder or defraud" particular creditors, the conveyance, though made on valuable consideration, is not bona fide, and therefore not saved by the proviso.' This, however, does not militate at all against the well settled doctrine that a debtor may prefer one creditor to another intentionally, and if his honest purpose be to pay a debt, the preference is not fraudulent either in law or in fact. Other creditors may be delayed and hindered, but not in a fraudulent manner,' as was said by Tilghman, C. J., in Wilt v. Franklin, 1 Binney, 514. Whether the conveyance is in truth made for the payment of debts, or whether there is a fraudulent intention to hinder, delay or defraud other creditors, is a question for a jury." York Co. Bank v. Carter, 18 Phila. Legal Intelligencer, 92.

(2) Ezekiel v. Dixon, 3 Kelly, 146.

(3) McWhorter v. Wright, Nichols & Co., 5 Georgia, 555, 561.

(4) See Boardman v. Halliday, 10 Paige, 224, 229, and Cram v. Mitchell, 1 Sandford, 251, 253; Webb v. Daggett, 2 Barbour, 10; Nicholson v. Leavett, 4 Sanford, 279.

(5) Unhler v. Mulfair, 23 Penn. 481, and Covanhovan v. Hart, 21, overruling Ashmead v. Hean, 13 Id. 584.

To say of a person, "she is a common prostitute, and I will prove it; or that "she was hired to swear a child on me: she had a child before this, when she went to Canada; she would come damn'd nigh going to the State prison," is not actionable without alleging special damages.

The rules seems to be, that where the charge, if true, will subject the party charged to an indictment for a crime, involving moral turpitude, or subject him to an infamous punishment, then the words are in themselves actionable.

THIS was an action for slander. The declaration contained two counts. The first charged, that on the 1st of January, 1808, at Schagticoke, in the county of Rensselaer, &c., for that whereas the plaintiff, being a person of good name, &c., the defendant falsely and maliciously did speak and utter of and concerning the plaintiff, the following false, scandalous, and defamatory words: She (meaning the plaintiff) is a common prostitute and I can prove it." The second count charged, that the defendant afterwards, to wit, on the day and year aforesaid, at the place aforesaid, in a certain other discourse, &c., did falsely and maliciously speak and utter the following false, scandalous, and defamatory words, to wit: She (meaning the plaintiff) was hired to swear the child on me (meaning that the plaintiff was hired falsely and maliciously to swear a certain child on the defendant). "She (meaning the plaintiff) has had a child before this" (meaning before this child or the child which the said defendant had before said the said Nancy had been hired to swear on him), "when she went to Canada (meaning a certain time when the plaintiff had been at Canada). “She (meaning the plaintiff) would come damn'd nigh going to the