268 HARVARD LAW REVIEW. mentioned above, he could proceed as if it did not exist, and attach the property in the assignee's hands by trustee process. Even a debt due to the assignee was not exempted.^ If the conveyance was valid, he might attach by trustee process the balance of prop- erty in the assignee's hands not needed to satisfy the claims of those creditors who had assented to the assignment;^ and such attachment will hold the surplus as against subsequent assenting creditors.^ It makes no difference in the creditor's right of attach- ment whether the assignment provides in terms for the payment of certain creditors only, or for the payment of all creditors ; in either case the property is protected only to the extent of the assenting creditors' claims. The character of the property, whether real, personal, or choses in action, is immaterial, as is also the fact of the assignee's having converted it into money, if such should chance to be the case.* Such in brief were the principal points decided up to the pas- sage of the Act of 1836 regulating assignments. It is to be noted, in view of later decisions, that there are three possible meanings of the word " preference," and that a conveyance constituting a "preference" in either sense was perfectly good up to this time. The conveyance might be to one or more creditors to the exclusion of the others, — a simple preference; or in trust to pay certain creditors first, and the rest afterwards, — an assignment with pref- erences; lastly, an assignment without preferences for the benefit of all creditors who assent within a reasonable time might be con- sidered by some a species of preference. The Act of 1836 altered this state of things in two particulars: it provided, first, that all assignments must be free from prefer- ences ; and, second, that when made in accordance with the terms of the Act, they should be valid against attaching creditors.^ The preferences forbidden by the Act were of the second kind men- tioned above ; that is to say, the Act did not impair the right to give a preference, except when the preference was contained in an assignment.^ All creditors were allowed to become parties at any 1 Harris v. Sumner, 2 Pick. 129 (1824). 2 Borden v. Sumner, 4 Pick. 265 (1826); Bradford w. Tappan, 11 Pick. 78 (1831); Fall River Iron Works v. Croade, 15 Pick. 11, 16 (1833), and cases cited. 3 Bradford v. Tappan, 11 Pick. 78 (1831).
- Fall River Iron Works v. Croade, 15 Pick. 11, 16 (1833).
6 St. 1836, ch. 238, §§ I, 3.
- Henshaw v. Sumner, 23 Pick. 446 (1839) ; Brown v. Forster, 2 Met. 152, 154 (1840) ;
Macomber v. Weeks, 3 Met. 512, 514 (1842) ; Burt v, Perkins, 9 Gray, 317 {1857).
