Certain rights not 3455. No provision in an assignment, giving a affected by preference to a creditor, can affect or impair any right preferences in assign ment. Joint and separate debts. Assignment, when void. of another creditor to priority of payment, whether created by law, or arising from an obligation or transaction of the parties. 3456. Joint, or joint and several debtors, can prefor their joint creditors only out of joint property; and can prefer the individual creditors of each, only out of the separate property of each. NOTE. Compare Kirby vs. Schoonmaker, 3 Barb. Ch., p. 46; Nicholson vs. Leavitt, 4 Sandf., p. 252; Jackson vs. Cornell, 1 Sandf. Ch., p. 348; Van Rossum vs. Walker, 11 Barb., p. 237; Wilson vs. Robertson, 21 N. Y., p. 587; 19 How. Pr., p. 350; Smith vs. Howard, 20 How. Pr., p. 121; Cox vs. Platt, 32 Barb., p. 126; 19 How. Pr., p. 121; Turner vs. Jaycox, 40 Barb., p. 164; Scott vs. Guthrie, 25 How. Pr., pp. 481, 512; Chase vs. Steel, 9 Cal., p. 64; affirmed in Burpee vs. Bunn, 22 Cal., p. 199; Bullock vs. Hubbard, 23 Cal., p. 501; Jones vs. Parsons, 25 Cal., p. 100. 3457. An assignment for the benefit of creditors is void against any creditor of the assignor not assenting thereto, in the following cases: 1. If it gives an unlawful preference of one debt or class of debts over another; 2. If it gives a preference dependent upon any condition or contingency, or with any power of revocation reserved; 3. If it tends to coerce any creditor to release or compromise his demand; 4. If it provides for the payment of any claim known to the assignor to be false or fraudulent; or for the payment of more upon any claim than is justly due from the assignor; 5. If it reserves any interest in the assigned property, or in any part thereof, to the assignor or for his benefit, before all his existing debts are paid; 6. If it confers upon the assignee any power which, if exercised, might prevent or delay the immediate Same. conversion of the assigned property to the purposes of the trust; 7. If it exempts him from liability for neglect of duty or misconduct; or, 8. If it violates Section 3456 of this Code. NOTE.-Subd. 2.-Averill vs. Loucks, 6 Barb., p. 470; Sheldon vs. Dodge, 4 Den., p. 217. Subd. 3.-Grover vs. Wakeman, 11 Wend., p. 187; Subd. 4.-Fiedler vs. Day, 2 Sandf., p. 594; compare Subd. 5.-See Goodrich vs. Downs, 6 Hill, p. 438; The instrument of 3458. the estate (Dunham vs. Waterman, 17 N. Y., p. 9; 6 Abb. P., p. 357; Schlussel vs. Willett, 34 Barb., p. 615; 12 Abb. Pr., p. 397; 22 How. Pr., p. 15); a power to sell on credit.-Rogers vs. De Forest, 7 Paige, p. 272; Barney vs. Griffin, 2 N. Y., p. 365; Nicholson vs. Leavitt, 6 N. Y., p. 510; and see 10 id., p. 591; Burdick vs. Post, 6 N. Y., p. 522; Porter vs. Williams, 9 N. Y., p. 142; Brigham vs. Tillinghast, 13 N. Y., p. 215; Lyons vs. Platner, 11 N. Y. Leg. Obs., p. 87; Wilson vs. Robertson, 21 N. Y., p. 589; 19 How. Pr., p. 350. A power to employ agents is not within the provision.-Mann vs. Witbeck, 17 Barb., p. 388; Van Dine vs. Willett, 38 Barb., p. 319. Neither is a power to compromise bad and doubtful" claims (Brigham v. Tillinghast, 15 Barb., p. 618; Dow vs. Platner, 16 N. Y., p. 562; Bellows vs. Partridge, 19 Barb., p. 176); nor a power "to pay rent and taxes," on real estate, until sold (Van Dine vs. Willett, 38 Barb., p. 319; 24 How. Pr., p. 206); or to pay off mortgages, or to insure. Whitney vs. Krous, 11 Barb., p. 198. See, also, Secs. 3432, 3442, 3449, and notes, giving full references to California decisions bearing on this section.— Cal. Laws., Hittell, ¶¶ 3836, 3837, 3838, Secs. 27, 28, 29. 66 An assignment for the benefit of creditors assignment must be in writing, subscribed by the assignor, or by his agent thereto authorized by writing. It must be acknowledged, or proved and certified, in the mode prescribed by the Chapter on Recording Transfers of Real Property, and recorded as required by Sections 3463 and 3464; but recording in one county constitutes a compliance with the following section. Compli ance with 3459. Unless the provisions of the last section are provisions complied with, an assignment for the benefit of creditors is void against every creditor of the assignor not of assign assenting thereto. of last section necessary to validity ment. Assignce takes, subject to rights of third parties. NOTE.-A voluntary assignment for the benefit of creditors is void if not made in conformity with the statute.-Chever vs. Hays, 3 Cal., p. 471. 3460. An assignee for the benefit of creditors is not to be regarded as a purchaser for value, and has no greater rights than his assignor had, in respect to things in action transferred by the assignment. Y., p. 195; Van NOTE.-Curtis vs. Leavitt, 15 N. required. 3461. Within twenty days after an assignment is Inventory made for the benefit of creditors, the assignor must make and file, in the manner prescribed by Section 3463, a full and true inventory, showing: 1. All the creditors of the assignor; 2. The place of residence of each creditor, if known to the assignor; or if not known, that fact must be stated; 3. The sum owing to each creditor and the nature of each debt or liability, whether arising on written security, account, or otherwise; 4. The true consideration of the liability in each case, and the place where it arose; 5. Every existing judgment, mortgage, or other security for the payment of any debt or liability of the assignor; 6. All property of the assignor at the date of the assignment, which is exempt by law from execution; and, 7. All of the assignor's property at the date of the assignment, both real and personal, of every kind, not so exempt, and the incumbrances existing thereon, and all vouchers and securities relating thereto, and the value of such property according to the best knowledge of the assignor. NOTE. This section is substantially taken from New with Sec. 3 of the Act of 1852 of California. The difference consists in this: the latter statute requires the inventory to be made out and attached to his petition by the insolvent, instead of the assignee. Sec. 4 of the California statute requires the inventory, or, as it is therein designated, the schedule, to be verified, giving the form of the oath. Much discussion has arisen under these statutes in determining whether a failure to comply with their various provisions rendered an assignment void, or whether those provisions, or some of them, were not to be considered as merely directory. In California these questions have induced further and more definite legislation on the subject, particularly the amendment of 1860, on the subject of definitely describing debts and allowing a discharge from all, if a desire is so set forth in the petition, whether they are or are not particularly described. In Evans vs. Chapin, 12 Abb. Pr., p. 61, 20 How. Pr., p. 289, the question arose upon the failure of the assignor to make and deliver the required inventory of his debts and assets. It was held that the provision of the statute requiring that inventory was merely directory, and the assignment was not made invalid by the omission. In Barbour vs. Everson, 16 Abb. Pr., p. 366, the question arose upon the omission to furnish the required inventory, and the further omission of the assignee to give the bond prescribed by the Act. It was held that neither of these departures from the statute affected the assignment. To the same effect is Juliand vs. Rathbone, 39 Barb., p. 97. In Fairchild vs. Gwynne, 16 Abb. Pr., p. 23, the question arose upon the omission of the assignor to acknowledge and record the assignment as required by the Act. It was held that in this respect a compliance with the Act was essential to the validity of the instrument. To the same effect is Cook vs. Kelly, 14 Abb. Pr., p. 466. By the decisions prior to the Act of 1860, the omission to annex schedules was held only a badge of fraud, and not conclusive evidence of an intent to defraud the creditors of the assignor.Cunningham vs. Freeborn, 3 Paige, p. 557; aff'd, 11 Wend., p. 241; Delaware and Hudson Canal Co. vs. Elting, 3 Ch. Sent., p. 29; Van Nest vs. Yoe, 1 Sandf. Ch., p. 4; S. C., 2 N. Y. Leg. Obs., p. 70; Kellogg vs. Slauson, 15 Barb., p. 56; aff'd, 11 N. Y., p. 302; see, also, the later case of Hotop vs. Neidig, 17 Abb. Pr., p. 332. By a subsequent section, it is proposed to make both the record of the assignment and the filing of the inventory essential. The inventory is therefore required |