tees. This was done in the paragraph numbered 53, in the treatise, and the result stated in the first sentence of the succeeding paragraph, both of which are correctly quoted by the reviewer, [9 Am. Jur. 226-228.] The reviewer does not attempt to point out any defect or inaccuracy in this analysis.

The conclusion of the author is stated as follows: The true nature of this kind of conveyance seems to be, that the assignor and assignee thereby become part owners of the property, according to their respective interests therein; the assignee to the extent of the debts or engagements to be satisfied, and the assignor to the amount of the residue, with a right on the part of the assignee to retain possession for the particular purpose of turning the property into money, and appropriating it according to the agreement of the parties.' To this view, the writer of the review says, 'we cannot give our assent,' (p. 226.) and after quoting the paragraphs above referred to, and also paragraph numbered 197, he remarks as follows:

An assignment of property to assignees for the benefit of such creditors as may become parties to the instrument within a limited. time, in the form common in Massachusetts, evidently makes the assignees the legal owners of the property, and trustees1 of it for the purposes mentioned in the assignment. If all the creditors become parties, the assignees are then trustees for those creditors to the amount of their debts, and if a surplus should remain they are trustees of the assignors for that surplus. If part only of the creditors become parties, and the rest are excluded by not having become parties in time, the assignees are trustees for the assenting creditors to the amount of their debts, and for the assignor for any surplus which may remain. So far there is no difficulty. But in the case supposed by our author of a part only of the creditors having assented to the assignment, another creditor then summoning the assignees as trustees of the assignor, and other creditors subsequently assenting to the assignment, he appears to think it necessary to regard the assignor part owner of the property with the assignees in order to give effect to the trustee process. We do not propose to vindicate the decisions of the courts of Massachusetts and Maine which have given effect to the trustee

The reader will bear in mind that the word trustee is used in two senses, in our remarks, sometimes for a person made a trustee by an instrument, and at others for one summoned by the trustee process. The connexion will always show in which sense the word is used.

process under snch circumstances. But we do not see how the assignor can be regarded as a part owner. He has in form parted with his whole property in his chattels by an instrument admitted by the courts to be valid. The assignees have the undisputed right of selling all the chattels, the assenting creditors have at claim on the trustees to have all the chattels, if required, sold for the payment of their debts. The right of the assignor is subsequent to theirs, is merely a claim on the assignees to account to him for the contingent surplus. If we say that the assignor is a part owner of the assigned property, we must also admit that the assenting creditors are also part owners. Their claims upon the fund are of the same nature, only prior to those of the assignor. The only difference is that the creditors are to be paid in money, while the assignor would have a claim on the assignees for any specific chattels which remained after satisfying the purposes of the assignment.'

To these remarks, it is a sufficient answer to quote the language of Wilde, J. in the late case of Bradford v. Tappan, 11 Pick. Rep. 79:"

Then as to the objection, that the deed of assignment could not be good in part, and void or voidable in part, we can perceive no ground on which this objection can be maintained. A sale may be good in part, and void as to the residue upon which some third person may have obtained a prior lien. It may be good between the parties and void as to creditors. It may be valid as to some creditors and void as to others. In the present case, the creditors who became parties to the deed of assignment are bound by it, while all other creditors may impeach it. Every voidable act is supposed to be good for some purpose, and is only to be avoided so far as law and justice may require. The deed of assignment, therefore, may remain binding upon all the parties to it, but, for the reasons given, it cannot be set up to defeat the plaintiffs' claim.'

One remark, however, of the reviewer deserves particular notice. He says, 'He [that is, the assignor] has in form parted with his whole property in his chattels by an instrument admitted by the courts to be valid.' The instrument is admitted to be valid, so far only as the property assigned is required for the payment of those creditors who are parties to it: as to the surplus, it is voidable, by dissenting creditors, and becomes void, by an attachment on their part. But a more satisfactory and conclusive answer is to be found in testing the correctness

of the reviewer's premises, by examining the conclusion to which they lead him. The reviewer's conclusion is, that, 'the right of the assignor [which is all that is attachable by the trustee process] is subsequent to theirs [that is, the right of the assenting creditors], and is merely a claim on the assignees to account to him for the contingent surplus. Now, if this were so, the right of the assignor would not be attachable at all, or not until the contingency had happened. No principle can be better established, in the jurisprudence of Massachusetts, than that a debt or claim due upon a contingency is not attachable by the trustee process. This was among the very earliest decisions on the trustee act, and is asserted and maintained, in its full vigor and extent, even in the very latest. The reviewer's conclusion cannot be correct, therefore, because the right of the assignor, whatever it may be, has always been held attachable, immediately upon the execution of the instrument, and before any disposition of the property, and consequently before it could be ascertained whether there would be any surplus or not.

Another objection taken by the reviewer is stated by him as follows: We find it difficult to account for the idea entertained by our author, that an assignment for the benefit of creditors did not create a trust estate in the assignees for the purposes mentioned in the instrument.' The objection is predicated upon a note, in which the author lays it down, too broadly, although the assertion is properly qualified by the remarks which follow, that an assignment in trust for creditors is not the creation of a trust estate for their benefit.' In this it was not intended to deny that such was the nature of the transaction, as between the parties to it, between whóm there can be no doubt that such is its legal character and effect. The meaning of the author was merely, that an assignment did not create a trust estate for creditors generally, or for those who were not parties to it: and it certainly cannot be disputed, that this is the very doctrine laid down, whether correctly or not, by Chief Justice: Parsons, in the cases of Widgery v. Haskell, (5 Mass. Rep. 154) and Stevens et al. v. Bell, (6 Mass. R. 342.)

The above remarks are intended to be made with the same fairness, and in the same spirit of good feeling, which characterize the article replied to.

L. S. C.

DIGEST OF RECENT DECISIONS.

Principal cases in

1 BAILEY. Reports of Cases in the Court of Appeals of South Carolina. 1 HILL. Reports of Cases in the same court in 1833.

4, 5, 6, CALL. Reports of Cases in the Court of Appeals of Virginia, 1779 to 1818, and 5 Cases in the Circuit Court of the United States, District of Virginia.

ACCEPTANCE.

(Of a bill to be drawn.) A written undertaking to accept a bill of exchange, to be drawn by a third person, is binding in favor of any one to whom it is shown, and who purchases the bill upon the faith of such undertaking; but the bill must be presented, or notice given of its existence, within a reasonable time. Kendrick v. Campbell and Clark, 1 Bailey, 522. ACCESSORY.

(Misdemeanor.) Whatever constitutes one an accessory in a capital offence renders him liable as principal in a misdeState v. Westfield, 1 Bailey, 132.

meanor.

ADMINISTRATION.

(Order of payment.) Priority of judgment against the executor gives no right to priority of payment out of the assets, where the estate is insolvent. In marshalling the assets, debts take rank according to the footing on which they stood at the death of the testator, to which period the order of payment must be referred. Hutchinson v. Bales, 1 Bailey, 111. ADMINISTRATION BOND.

(Action upon.) It is no objection to an action on an administration bond, that the real plaintiff is a co-obligor in the bond; nor that she is a joint administratrix, and has not accounted for her own administration. Ordinary v. Robinson, 1 Bailey, 25.

ADMINISTRATOR DE BONIS NON.

(Action on contract of first administrator.) An administrator de

bonis non cannot maintain an action upon a contract, made by the first administrator, for the sale of goods belonging to the estate of the intestate. The contracts of an administrator are personal, although they relate exclusively to the estate of his intestate; and there is, therefore, no privity between persons contracting with him, and his successor. Ross v. Sutton, 1

Bailey, 126.

AGENT.

1. (Submission to arbitration.) A factor, after a sale has been completed, cannot bind his principal by a submission to arbitration of a claim for damages, sustained by an alleged breach of the implied warranty of quality in the thing sold. Carnochan v. Gould, 1 Bailey, 179.

2. (Application of payments.) If a debtor pay a sum of money on account of distinct debts due to different creditors, to a common agent of all the creditors, and give no direction as to the order in which the money is to be applied to the debts, the agent may make the application according to his discretion, and the debtor will be bound by it. Marshall v. Nagel and Thompson, 1 Bailey, 308.

3. (Termination of agency.) An agent to sell has no authority to rescind the sale, after the contract has been completed. His agency terminates with the sale, and the delivery of the proceeds to his principal. Smith v. Rice, 1 Bailey, 648.

4. (Slave.) A master may constitute his slave his agent, and there is no distinction in the circumstances which constitute a slave and a freeman an agent. Chastair v. Bowman, 1 Hill.

270.

AGREEMENT.

1. (Assignment.) On the 1st of May, 1779, C. having sterling money in Jamaica, B. agreed, in writing, to give, on receipt of C.'s bills for the same, his bond for payment of £700 current money, for each £100 sterling, payable with interest from the date of the bills, if honored; and when notice of payment of the sterling money should be received, the current money due, on account of it, to be put into loan office treasury notes, on interest, by B., and delivered to C.; but, if the bills were not honored, the drawer was not to be liable to damages, and B. was to forward the bills, by the earliest conveyance, to Jamaica, for payment. This was not a sale of the sterling money, unless the bills were honored. And if B. sold the bills before acceptance, he violated the contract, and could not insist upon, peṛformance, by C., afterwards. To whom, a subsequent delivery