274 HARVARD LAW REVIEW. the assignee in insolvency to recover back the property. There is, however, in these cases no intimation that an assignment under which all the creditors have equal rights is a preference, or is a fraudulent conveyance which can be the ground of involuntary proceedings.^ Remembering then that a preference is a " fraudulent convey- ance," within section 1 12 of the present insolvent law, we have now to consider the argument that this expression, " fraudulent convey- ance," includes any conveyance which is in any way a fraud upon the law under any other section. It may be said that it is absurd to provide that assignees when appointed can avoid a certain con- veyance, and yet to say that such a conveyance shall not be a ground on which to apply for an assignee. Conveyances which are frauds upon the law must be either ( i ) such as would avoid a discharge under section 93, or (2) preferences under section 96, or (3) to prevent the property being distributed under the insolvent laws, or to defeat the objects of its provisions under section 98, or, as. it is elsewhere expressed, " conveyances in derogation of the jurisdiction."^ (i)- But it has been held that an assignment without preferences will not avoid a discharge.^ (2) The language of section 93 is very similar to that of sec- tions 96 and 98, and we have the direct authority of Fairbanks V. Belknap that it is not a preference. (3) We have already considered some Massachusetts cases which say that an assignment whose provisions closely resemble those of the insolvent law, and which give creditors equal rights, cannot be opposed to the spirit of the law, for they accomplish precisely what the law itself does. Against these must be put the almost uniform interpretation of the bankruptcy Acts both in this country and in England. The limits of this article will not permit a detailed examination of these statutes and decisions; but this is unneces- sary, because the decisions do not turn on any peculiar wording of the statutes, but proceed upon the general principle that a 1 It is curious that the Highland Foundry Case does not mention a provision of the Act of 1856 to the express effect that a preference should be a ground of proceedings in invitum (St. 1856, ch. 284, § 25). The Commissioners on the General Statutes give no reason for omitting this provision in their report, and the inference is therefore that they supposed it was covered by other clauses. This Act, in common with the others, makes no mention of general assignments for the benefit of creditors. 2 Cadwalader, J., in Barnes v. Rettew, 8 Phila. 133, 136.
- Atkins V. Spear, 8 Met. 490, 496 (1844).
