266 HARVARD LAW REVIEW. when sued the debtor might confess his debt, or be defaulted.^ Even a conveyance fraudulent as to creditors was good against the grantor and his heirs.^ One of the first cases in which the preferring of creditors was done by a trust instead of by a direct conveyance or payment was Widgery v. Haskell.^ The assignment in this case recited the de- sire of the assignors that all their property should be fairly distrib- uted to their creditors, except that certain indorsers on bonds were to be first paid in full. The plaintiffs, who were assignees under the deed of trust, agreed to distribute the property assigned /n? rata to all creditors who would release any suits pending, and release the assignors from all liability, and give notice within six months of their consent to the arrangement. The defendant was a sheriff holding under an attachment in the suit of a creditor who did not assent to the assignment, and it appeared that the property at- tached was not necessary to pay either the preferred creditors mentioned in the assignment or the assignees themselves. The assignees were the only unpreferred creditors who assented to the arrangement. The court held the assignees were not entitled to recover. The opinion is full of dictay some of which were erroneous.* The court said that creditors must assent to the preference or the payment as much where it was made indirectly as where it was made directly, and that such assent could not be presumed to ex- ist.^ The reason for requiring the assent of creditors was the same as in the case of a direct conveyance, and the absence of equity powers to control a trust in favor of creditors, not parties, seemed to be the chief difficulty the court felt in upholding the assignment. They say, however, " We would not be understood as giving an opinion that an insolvent debtor cannot convey an estate in trust to pay particular creditors who are assenting and parties to the 1 Eastman v. Eveleth, 4"Met. 137, 149 (1842). 2 Drinkwater v. Drinkwater, 4 Mass. 353, 357 (1808). And the same is true of a conveyance in fraud of the insolvent law. Potter v. Belden, 105 Mass. 11 (1870). 8 5 Mass. 144 (1809). Cf. Hatch v. Smith, 5 Mass. 42 (1809).
- It has been decided, for example, contra to the dictum of Parsons, C. J., that an
assignment containing a provision for the release of claims by creditors is perfectly good. See Borden v. Summer, 4 Pick. 266 ; Andrews v. Ludlow, 5 Pick. 28 ; Lupton V. Cutter, 8 Pick. 298.
- Page 153. Followed in Ward v. Lewis, 4 Pick. 518 ; New England Bank v. Lewis,
8 Pick. 113; Viall v. Bliss, 9 Pick. 13 ; Ward v. Lamson, 6 Pick. 358 ; Brewer v. Pit- kin, II Pick. 298; Russell v. Woodward, 10 Pick. 408.
