•WBIGHT V. THOMAS. 721 �ment should thereby become inoperative and void. It lias not seen fit so to declare, and I do not think that in the absence of sueh a declaration this court can declare that it is fraudaient and void, unless the assignment is not made in the way required by the statute. �Some language used in the opinion of the cQurt in the case already referred to is significant : "The intent of the act is to secure an equitable distribution of a debtor's estate, and to prevent one creditor from obtaining undue advantage over others. When, therefore, the instrument upon its face con- forms to the requirements of the act, and a subgtantial com- pliance bas also been made by the trustee, this court should not, by technical construction of the language of the law, defeat the evident legislative purpose." There is nothing in the case of Browny. Foster, 2 Met. 152; Hardeman v. Brown, 39 N. Y. 196, or of Britton v. Lorenz, 45 N. Y. 51, inconsist- ent with this view. Some of the objections which are made to the deed of trust, as, for example, a certain right reserved by the assigner to give instructions to the trustee, and sell the property on credit, do not, I think, in a case like this, constitute badges of fraud per se, so as to render the assign- ment void; but, as the statute entrusts a court with the administration by the trustee of the estate, and it is entirely under its direction, undoubtedly the court would have power over any such provisions as these in the deed of assignment, 80 as to prevent them from operating to the prejudice of any of the creditors. The main controversy, as it seems to me, must depend upon this : Whether or not the assignors had, in good faith, assigned all their property, real and personal, for the benefit of all their creditors. That was the kind of assignment that the statute declared should be made, and that was the kind of assignment which the second clause of the first section declared, if not made, was fraudulent and void. �The resuit is that the decree of the district court, sustain- ing the demurrer and dismissing the bill, must be reversed. �v.l.rio.9— 46 ��� �
