2/6 HARVARD LAW REVIEW. In spite of the dictum of Field, J., in Mayer v. Hellman, the great preponderance of authority in the Circuit and District Courts of the United States, and the uniform rule in England^ is to regard voluntary assignments as acts of bankruptcy. As a matter of principle, it is not clear that a voluntary assignment is in fraud of the jurisdiction. How can the same act supply the jurisdiction and be a fraud upon it? The act of assignment must be on this theory an act in fraud of a right not yet acquired. And if the jurisdiction be not already there, why should making an assignment be singled out as the deadly sin? Why not every other act done by an insolvent person, or why not make insolvency itself a ground of proceedings in inviium?^ The State courts do not always take the same view as the Fed- eral courts on this point. It is held in New York, for example, that the intent of the bankrupt in making the assignment is a question of fact, and that in order to institute proceedings on account of it, it must be shown that he had an intent to contra- vene some provisions of the bankrupt law, and that the assignee knew, of that intent^ Similarly in Maryland, under a statute providing that any con- veyance by an insolvent shall be prima facie intended to delay creditors, an assignment without preferences is held not prima facie fraudulent* The second Act in Massachusetts, dealing specifically with assignments, was passed in 1887.^ It provides that all acts of trustees under assignments, whose provisions are in substantial conformity with the provisions of the insolvent law, done in caring for the property and coverting it into money, shall be valid if the assignments have been assented to in writing by a majority in number and value of the unsecured creditors, even though subse- quent proceedings in insolvency are instituted by or against the 1 They are now regulated by Act, 1883, 46 & 47 Vict. ch. 52, § 4 ; cf. i Jac. I. ch. 15 ; 6 Geo. IV. ch. 16; Worseley v. De Mattos, i Burr. 827. 2 For a further presentation of this view, see Burrill on Assignments, 6th ed. § 32. He also points out that none of the debates in Congress on the Act of 1867 showed any intention to adopt the English construction of the language from which our Acts were taken. It had long been a matter of common knowledge, and it would have been a natural thing to embody such a decision in the new Act. 8 Haas V. O'Brien, 16 N. B. R. 508 (1876, Ct. of Appeals, N. Y.) ; Von Hein v. Elkus, 15 N. B. R, 194 (Sup. Ct. N. Y.).
- Pfaff V. Perry, 29 Atl. Rep. 824 (Ct. of Appeal, Md. 1894).
» St. 1887, ch. 340.
