When assignment for benefit of creditors is revocable.

Deed cannot

be revoked

tors' assent.

however small the amount. (Cooper v. Thornton, 1 Ell. & Bl. 544).

A deed, which has been executed for the benefit of creditors, is considered voluntary and revocable by the settlor, in case the creditors are neither parties nor privies to the deed, and so long as there has been no communication of the trust deed to the creditors. Such a deed operates, under these circumstances, only as a power to the trustees, and has the same effect as if the debtor had delivered money to an agent to pay creditors, and, before any payment by the agent, or communication by him to the creditors, had recalled the money so delivered. (Garrard v. Lord Lauderdale, 3 Sim. 1; Acton v. Woodgate, 2 M. & K. 492; Wallwyn v. Coutts, 3 Mer. 707).

After, however, the trust deed has been commuaf er credi- nicated to the creditors, and they have signified their assent to the arrangement, the deed cannot be revoked. (Kirwin v. Daniel, 5 Hare, 493; Smith v. Keating, 6 Com. Bench, 136; Harland v. Binks, 15 Q. B. 713).

Whether an actual assent

It is not satisfactorily decided whether the comis nec ssary. munication of the deed to the creditors, without an actual assent on their part, is sufficient. In Harland v. Binks (15 Q. B. 713), the deed was held to be irrevocable, some of the creditors to whom the deed was communicated having expressed themselves satisfied with the arrangement; but Wightman J. appears to have thought that the mere communication of the trust, by reason of which the creditor may not have pursued his remedies, was sufficient

to make the deed irrevocable. (Smith v. Keating, 6 Com. Bench, 136). But an assignment to a creditor, as a trustee for himself and other creditors, after being communicated to him, cannot be revoked, and requires no assent on the part of the assignee to render it irrevocable. (Siggers v. Evans, 25 L. T. 213; see also Mackinnon v. Stewart, 20 L. T. (N. s.) Ch. 49.)

No. CII.

ASSIGNMENT of the entire PERSONAL ESTATE and

ASSIGN

EFFECTS of a DEBTOR for the BENEFIT of his MENT FOR

CREDITORS.

day of

BENEFIT OF
CREDITORS.

BETWEEN Parties.

to convey

all property

THIS INDENTURE, made the A. B., of &c. merchant [debtor], of the first part, C. D., of &c. and E. F. of &c. [two of the creditors of the said A. B.], of the second part, and the several other persons whose names and seals are hereunto subscribed and affixed, by themselves or their respective attornies [being also respectively creditors of the said A. B.], of the third part: WHEREAS the said A. B. is indebted to the several Agreement persons parties hereto of the second and third parts or their and assign respective partners in several sums of money, and being desirous of debtor as to provide a fund for the payment of all his debts hath agreed to convey and assign all his real and personal estate and effects his debts. whatsoever and wheresoever to the said C. D. and E. F., upon and for the trusts, intents and purposes, and with, under and subject to the powers, provisoes, agreements and declarations. hereinafter expressed and declared of and concerning the same respectively: AND WHEREAS the several persons mentioned in the first schedule hereunder written or hereunto annexed, are such of the creditors of the said A. B. as have specific liens on

a fund for

payment of

ASSIGN

MENT FOR

BENEFIT OF CREDITORS.

his estate and effects, and the amount of their respective debts is set opposite to their respective names in the said schedule [recite conveyance of real estate and leaseholds by A. B. to C. D. and E. F., upon trust to sell and to execute all necessary contracts and conveyances, and to stand possessed of the monies to arise from the sale upon the trusts of an indenture bearing even date therewith (meaning these very presents)]: NOW THIS INDENTURE WITNESSETH that, in pursuance and further performance of the said agreement, he the said A. B. doth Assignment by these presents assign, transfer and set over unto the said of personalty, C. D. and E. F., their executors, administrators and assigns, all

realise.

and singular the goods, wares, merchandize, stock in trade, debts, monies and other personal estate and effects of or belonging, due or owing to the said A. B., and not assigned by the said recited indenture [and all the right, title, &c.] To HAVE, HOLD, RECEIVE AND TAKE the said goods, wares, merchandize, stock, debts, monies and all and singular other the premises hereby assigned, or expressed and intended so to be, unto the to trustees to said C. D. and E. F., their executors, administrators and assigns, upon trust that they the said trustees, and the survivor of them, and the executors or administrators of such survivor, their or his assigns, do and shall, with all convenient speed, absolutely sell and dispose of, collect, get in, receive and convert into money the said goods, wares, merchandize, stock, debts, monies and premises hereby Trustees to assigned, or expressed and intended so to be: AND IT IS hold personal HEREBY agreed and declared between and by the parties to these presents, that the said trustees or trustee for the time being shall stand possessed of and interested in the monies which shall come to their or his hands by virtue of these presents, and the said A. B. doth hereby direct and appoint that the said trustees or trustee for the time being shall stand possessed of and interested in so much of the monies arise by the sale or sales which shall be made by virtue of the trust for that purpose declared in the said recited indenture of the said messuages, hereditaments and premises in the same indenture comprised, and also of and in the rents, issues, profits and produce of the said messuages, hereditaments and premises in the meantime and until the same shall be sold, upon and

estate and produce of real estate.

as chalk

ASSIGN

BENEFIT OF

To pay costs

and expenses,

residue

creditors.

for the trusts, intents and purposes, and with, under and subject to the powers, provisoes, agreements and declarations hereinafter MENT FOR expressed and declared of and concerning the same, namely: CREDITORS. UPON TRUST that they or he the said trustees or trustee for the time being do and shall, with and out of the same, in the first place, pay, satisfy and discharge all the costs, charges and expenses, attending the preparing, engrossing and executing of these presents, and in the next place retain and deduct thereout, and reimburse themselves and himself respectively, all such costs, charges and expenses, as they or any of them shall or may pay, incur, sustain or be put unto, or to which they or any of them shall or may respectively become subject or liable in or about the execution and performance of the several trusts hereby created, or the exercise of any of the powers and authorities herein contained or in anywise relating thereto, and do and shall pay and divide the clear residue of the said and divide monies unto and among all and singular the creditors of the amongst said A. B. rateably according to the amount of their respective debts, subject nevertheless to the provisoes and covenants hereinafter contained, and lastly pay, or cause to be paid, the residue of the said monies, rents, issues and profits and produce which shall remain after answering the several purposes aforesaid unto the said A. B., his executors, administrators and assigns, for his and their own absolute use and benefit. PROVIDED ALWAYS, Dividend to be paid at and it is hereby agreed and declared, that the said trustees or one time. trustee for the time being shall not in pursuance of the trusts herein before declared, pay at one time more or less than shillings in the pound on the said debts, unless a majority of creditors at a half yearly meeting, or at a meeting to be held for that purpose, shall direct the contrary, or unless less than that sum shall be sufficient to pay and satisfy so much of the said debts as shall for the time being be required to be paid under or by virtue of the trusts aforesaid. PROVIDED ALWAYS, Money to be and it is hereby agreed, &c. that all the monies which shall be paid into recovered or received by or come to the hands of the said time to time, trustees or trustee for the time being, and the trusts whereof are hereinbefore declared, shall forthwith be paid by them or him from time to time into the banking house of Messrs. at, or such other banking house as a majority of creditors.

bank from

ASSIGN

BENEFIT OF

if necessary to be invested.

Powers to

trustees as to doubtful debts.

any

at a half yearly meeting, or at a meeting to be held for that MENT FOR purpose, shall from time to time order or direct, and the CREDITORS. monies shall be then placed to the account of the said trustees or trustee for the time being. [Provided nevertheless that if at time or times the said monies shall be more than sufficient to answer the current expenses and payments necessary to be defrayed, and made in pursuance of these presents, then and so often the said trustees or trustee for the time being shall lay out so much of the said monies as shall not be immediately required for the above purposes in the purchase of navy or exchequer bills, or in the public stocks of Great Britain, in order that the same may accumulate at compound interest till required for the purposes of these presents]. PROVIDED ALWAYS, and it is hereby agreed and declared, that if the said trustees or trustee for the time being, shall entertain any doubt as to the amount of any of the debts specified in the schedules hereunder written or hereunto annexed, then and in every such case it shall be lawful for them or him so entertaining such doubts, at the expense of the trust estates, monies and premises, to take and use such legal or equitable course and means as shall appear to them or him to be necessary for the purpose of ascertaining and adjusting the true amount of such debt or debts: PROVIDED ALWAYS, and it is hereby agreed and declared, that it shall be lawful for the said trustees or trustee for the time being to appear for the said A. B. in all actions and suits that have been already or may be hereafter brought or commenced against him by any of his creditors, and to put in bail for the said A. B. in any such action or suit, and to contest the debts for which such actions or suits shall be brought or commenced, and generally to defend such actions or suits, and that it shall be lawful for the said trustees or trustee for the time being out of the said trust estates, monies and premises, to pay all the costs, charges and expenses attending, or in anywise relating to such actions or suits, and also all and singular the monies (if any) that shall be recovered against the said A. B., and also to pay and satisfy the debts of such of the creditors as shall refuse to come in and execute these presents [receipts of trustees to be sufficient discharges. Power of changing trustees and clauses for their

Trustees to appear for debtor.

and contest debts, &c.