Hence as to the question whether a party, demanded by one State and delivered to another on the charge of a specific offense, could be tried for another and different offense, no "prohibition" of such trial was interposed. The whole matter was, on the score of "good faith and comity," left "entirely to the discre tion of the State which had the right to demand him for any crime which he committed."

The general terms in which this reasoning appears make it difficult to see what it proves, or that it proves any thing. The meaning of the Constitution, either in its express words, or by just and fair implication, is not to be settled by judicial fancy-work. The rhetorical phrases, "their common Constitution," "our common country," "the mutual trust and confidence of the States,"66 implicit faith and confidence," and the like, which figure in this part of the deliverance, do not furnish rules for interpreting the Constitution of the United States. They are entirely outside of the extradition provision of this instrument, and supply no foundation on which, in the disposal of a judicial case, to base a legal doctrine under it. The provision means just what it expressly says, and which it fairly implies; and this meaning is to be ascertained by a careful examination of the words used, rather than by general statements about the "American Union," our common country," and "the mutual trust and confidence of the States." Such statements are too indefinite and elastic to determine any question of law.

The other reason is drawn from the guaranty of the Constitution that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." The difficulty with this reason is that it has no application to the question that Judge White was considering. It is well settled that this provision is limited to what are called fundamental rights, and that in respect to these rights, it means that each of the States shall secure to the citizens of other States, when within its jurisdiction, the same privileges and immunities that it secures to its own citizens, and in this respect, and to this extent, treat them as if they were citizens of that State. Corfield v. Coryell, 4 Wash. 371, and Crandall v. Nevada, 6 Wall. 35.

Now plainly the question whether a party, extradited from one State to another, can in the latter State and in consistency with the extradition provision of the Constitution, be tried for a different offense thau the one for which he was extradited, does not come within the limits of the guaranty cited by Judge White. The right of exemption from such trial, if it exists at all, is not a fundamental right, and is not derived from State citizenship. The question to be determined, is not whether au extradited party, if tried for a crime other than that for which he was extradited, must in the process of such trial, enjoy the privileges and immunities conceded by the State to its own citizens when trying them on criminal charges, but whether he can be so tried at all; and to this question the guaranty referred to has no application.

Moreover it may be, and generally is, the fact that the party demanded is a citizen of the State from which he fled, and which in the event of his delivery will try him for an offense against its laws. Such a case clearly would not come within the meaning of the guaranty.

The provision establishes no rule as to the manner in which a State shall deal with its own citizens; and hence if the extradited party be a citizen of the State that tries him, the guaranty will have nothing to do with the case. It can, at the very utmost, operate only on the supposition, generally not true, that this party is a citizen of some other State than the one that tries him on a criminal charge.

There is really no argumentative force in either of the special reasons, assigned by Judge White, to show that the admitted doctrine in respect to the crime for which the party may be tried, when the extradition is international, does not apply when it is inter-State. The first reason is too general and indefinite to prove any thing; and the second has no application to the question that was under discussion.

4. Judge White completes his deliverance on this branch of the case before the court, by citing the decision of Judge Nixon in the Matter of Noyes, 17 Alb. L. J. 407, in support of his view. The reasoning of Judge Nixon, into which we cannot here inquire, was very different from that of Judge White; and yet he came to the same conclusion. The case was therefore pertinent to the purpose for which it was cited, as an authority.

5. The two States that are concerned with a particular case of extradition-the one in demanding a fugitive criminal, and the other in acting upon the demand-are the only parties to the transaction in either form, or at any stage. The Supreme Court of the United States in Taylor v. Taintor, 16 Wall. 366, 374, said, with reference to this point, that "the duty enjoined is several and not joint, and every governor acts separately and independently for himself." Referring to the extradition of McGuire from the State of Maine, while he was under recognizance in the State of Connecticut to appear before a court of that State and answer to a criminal charge there pending against him, the court further said: "We cannot hold that Connecticut was in any sense a party or consenting to what was done in New York."

The extradition of McGuire was between New York and Maine; and with it Connecticut, though a member of the "American Union, and with the other States living under a "common Constitution," had nothing to do, and the same was true of every other State of the Union. The fact that the States, directly concerned in the matter, were members of the "American Union,' ," and for certain purposes relating to that Union, were confederated together under a common Constitution," and for like purposes and to the same extent, were confederated with all the other States of the Union, did not, according to the Supreme Court of the United States, in any sense, make the other States parties to an extradition between New York and Maine. The matter concerned these States, and these only, and that too, as completely as if they had been independent and sovereign nations; and no other States had any power to exercise in regard to it, or any duty to perform, or held any relation whatever to it.

6. The particular States involved in a case of extradition as the exclusive parties thereto, are not munici palities created by the general government, or dependent upon it for their existeuce, but self-governing States exercising powers not derived from the general government, or even from the Constitution of the United States, and having defined territories within which these powers are operative upon the inhabitants thereof; and as such, and such only, they act, whether in demanding or surrendering fugitive oriminals. They exercise, through their respective chief magistrates, the powers of State sovereignty. Their relation to each other in this respect, and for this purpose, is precisely like that of two nations in similar circumstances, with the single exception that a provision of the Constitution, and not that of a treaty. and a law of Congress for carrying the constitutional provision into effect, supply the rule of their action. They are as independent and sovereign in their action under this rule, as are two nations acting under the provisions of an extradition treaty.

The doctrine of the Supreme Court of the United

States in Kentucky v. Dennison, 24 How. 66, was that there is no process of Federal coercion by which a State governor can, upon the demand of another State governor, be compelled to make the delivery of a fugitive criminal. The same doctrine was stated by the court in Taylor v. Taintor, 16 Wall. 366, 370. The court said in this case: "In such cases the governor acts in his official character, and represents the sovereignty of the State in giving efficacy to the Constitution of the United States and the law of Congress. If he refuse, there is no means of compulsion."

If this be so, then no nation can be more sovereign and independent, when acting under an extradition treaty, than is a State when acting under the extradition provision of the Constitution and the law of Congress for its execution. The demanding State, through its chief executive magistrate, determines for itself whether it will make a demand, just as a sovereign nation determines for itself the same question; and so the State to which the demand is addressed determines for itself, through a similar magistrate, whether it will comply therewith, just as a nation determines the same question. There is no power anywhere to revise and reverse these determinations. They are aualogous, and in both cases the determinations of sovereignty.

7. The relations of the States to each other, as established by the Constitution of the United States, are not such as to create any essential difference between international and inter-State extradition. Messrs. Justices Field, Clifford and Miller, referring in their dissenting opinion in Taylor v. Taintor, 16 Wall. 356, 377, to the case of McGuire, which was a case of interState extradition, said: "The case is not essentially different from the surrender of a fugitive from justice under a treaty." It is extradition in both cases; in both, for a crime; in both, the removal of the accused party from one jurisdiction to another, with a view to his trial and punishment in the latter; in both, upon the specific charge of crime, and for nothing else; in the one case, under a treaty, and in the other under a coustitutional provision. The two extraditions, in their great principles and ends, are essentially similar, and do not so differ as to exclude the application of these principles from either.

The Supreme Court of Michigan, in Matter of Frank Cannon, 47 Mich. 481, referred to Commonwealth v. Hawes, 13 Bush, 697, and to the fact that it was claimed in the argument that the case of Hawes, decided under an extradition treaty with a foreign nation, could have "no bearing on extradition between States," and then proceeded to say: "We do not perceive any ground for the distinction. The duties of one State to another are measured by law, and not by their mere good pleasure, and so are the rights of citizens. The disregard of domestic duties and of foreign duties should not be considered as different in quality, and where both depend on law it is impossible to find good reason for holding either class of obligations as undeserving of obedience." The court regarded the doctrine stated by the Kentucky Court of Appeals in the case of Hawes as equally applicable to a case of inter-State extradition.

Judge Cooley, referring to the case of Hawes, says in regard to inter-State extradition: "It should be held, as it recently has been in Kentucky, that the fugitive surrendered on one charge is exempt from trial upon any other." Princeton Review for January, 1879, p. 176.

This is the doctrine declared by the Kentucky Court of Appeals under the tenth article of the treaty of 1842 with Great Britain; and the view of Judge Cooley is that the doctrine is equally applicable to a case of extradition between States under the Constitution of the United States.

Judge Daniels, in Lagrave v. Case, 14 Abb. Pr. (N. S.) 333, said: "In principle there is no practical difference between the case of a fugitive brought from a neighboring State under the Constitution and laws of the United States and one brought from a foreign country under the provisions of treaties. In each the right of freedom to return is precisely the same; and their implied guaranty of that right under the law is no greater in one case than in the other."

It is true that the relation of the States of the "American Union "to each other are not in all respects like those of separate and independent nations to each other; and yet the Constitution, which is the exponent of their State relations, furnishes no reason why the principle, which in the absence of treaty stipulations otherwise providing limits the use of the custody gained by international extradition to the specific purpose for which the extradition was asked and granted, should not equally apply to inter-State extradition. Extradition, in both cases, is essentially the same thing. The two States concerned in the one case are acting in their separate, independent and sovereign capacity as States, just as if they were nations, acting under the obligations of a treaty; and no other States are parties to the action, or have any thing to do with it, any more than if those two States were foreign nations. The Constitution of the United States does not so consolidate or blend the several States together by their confederate relations to each other, or to the United States, as to destroy their distinct and separate autonomy, or make extradition between them essentially different in the powers exercised, the procedure adopted, or the ends to be attained from extradition between nations.

Judge White, on this point, was, as we must think, mistaken in premise from which he reasoned, aud hence incorrect in his conclusion. He assumed, without any explanation of the assumption, and equally without proof, that the relations of the States of the Union to each other, and those of nations to each other, so differ that the doctrine as to the crime for which it is permissible to try an extradited party, admitted by him when the extradition is international, has no application when it is inter-State. This we regard as a false assumption.

8. The Constitution contains only one provision in relation to the extradition of fugitive crimiuals, and this declares that "a person charged in any State with treason, felony or other crime, who shall flee from justice and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." There is here no declaration, that in express words, either affirmatively or negatively, determines the question whether the fugitive criminal, being delivered up by one State to another on the charge of a specific crime, may or may not by the latter State be tried for another and wholly different crime. Such a trial is not expressly permitted or prohibited.

Is this question then answered by a just and fair implication from the words used? Such we think to be the fact; and if so, this is as decisive as if the idea were in express words.

The vital point sought to be gained by extradition is to get the party back into the State from which he filed, that he might be there tried for the crime charged against him, and if convicted, punished for the same. This can be done only by the consent and action of the State to which he has fled, and in which he is found. This consent, with the necessary co-operative action, as provided for by the Constitution and the law, is to be given in the presence of certain specified facts as conditions precedent, oue of which is the charge of a specific crime against the party demanded. The de

livering State, when these conditions are present, including the charge of a specific crime, is required to withdraw from one of its inhabitants, otherwise entitled to the protection of its laws, the right of peaceful and unmolested domicile therein, and hand him over to another jurisdiction for the purpose, and for that only, specified in the proceedings. The charge of a specific crime fixes and defines this purpose, as made known by the demanding to the delivering State; and this specific crime is not any crime, but a particular crime, definitely stated in its material facts.

Such, in a word, is the Constitution and the law in relation to inter-State extradition; and nothing can well be a clearer implication than that the purpose, in the charge of a specific crime, declared beforehand by one State to another as the reason for the extradition sought, should rule and limit the use of the custody gained in this way, and hence that a State, having asked for the surrender of the accused party on one charge, should not, having obtained the surrender, proceed to deal with him on a different charge. Judge White admits this doctrine when the extradition is international; and there is no reason in the Constitution, and as we have seen, no reason in the relation of the States to each other, why the doctrine is not equally applicable when the extradition is inter-State. To take advantage of the enforced presence and possession of the party extradited, for another and different purpose than the one avowed in the proceedings, is a falsification of the purpose professed at the time of the demand and surrender, and assumed by the delivering State to be professed in good faith, and is, in fact, such an abuse of the remedy as to be in practical effect a violation of the Constitution. Judge Cooley calls it "a gross abuse of the constitutional compact."

The fact that such a course is not, in express words, prohibited by the Constitution, by no means implies that it is permissible or consistent with that instrument. If it be inconsistent with what the Constitution naturally and fairly implies, that is as authoritative as an express prohibition. The tenth article of the treaty of 1842 with Great Britain does not expressly declare that the party extradited under it shall be tried only for the crime for which he was extradited; and yet the Kentucky Court of Appeals, in Commonwealth v. Hawes, 13 Bush, 697, held that this doctrine was implied in the treaty. A similar view was taken by Judge Hoffman in United States v. Watts, 14 Fed. Rep. 120, and by the Supreme Court of Ohio in State v. Vanderpool and Jones, 16 Chicago Legal News, 34, or 4 Ohio Law Journal, 187.

Substantially the same method of reasoning by which a negative implication was drawn from the treaty of 1842 with Great Britain would, if applied to the extradition provision of the Constitution, lead to the same result. The conclusion arises as naturally from the latter as it does from the former. The fact that the State or the nation, as the case may be, demands and secures a fugitive from justice for a specified purpose set forth in the extradition proceedings, and for that only, carries upon its face the distinct implication that such State or nation, in the absence of au express provision otherwise declaring, should confine its jurisdiction over the party extradited to the purpose thus specified, and should not take advantage of a custody gained in this way to secure other and different purposes. This is one of the fundamental doctrines of extradition, and is no more than is required by honesty and good faith between States and nations, and is moreover just as applicable to the States of the Union as it is to nations.

SAMUEL T. SPEAR.

PARTNERSHIP-COMPROMISE- RECEIVER.

UNITED STATES CIRCUIT COURT, E. D. VIRGINIA, JULY, 1884.

FINK V. PATTERSON.*

An insolvent firm offers by circular letter to its creditors to pay fifty per cent of their debts, and agrees in the same circular to make no preferences. Many creditors accept the offer. It subsequently continues business at large expense, postpones the execution of this compromise for an indefinite period until all the creditors accept, and pays many of the debts in full, thereby making pref

erences.

Held, equity has jurisdiction on bill filed to appoint a receiver and take possession of the firm assets and administer them for the benefit of the creditors; and this can be done in Virginia by a creditors' bill, without previously obtaining judgments at law.

N equity. The facts are stated in the opinion.

Coke & Pickrell, for plaintiffs. Friend & Davis, for defendants. HUGHES, J. The principal facts of this case, as shown by the papers and proofs now before the court, are as follows:

The defendants are grocers in Petersburgh. They have been carrying on their business since 1878. They put no capital in it. They began with a stock of goods worth about $4,000, and owed for it about $6,000. Their business has not been profitable. They have made nothing but their personal expenses. By the first of June, 1884, they became insolvent, and their business paper went to protest. Thereupon they consulted legal counsel as to the course best to be pursued. These advised an assignment in liquidation. They did not adopt this advice. They took counsel of mercantile friends in Pittsburgh, expressing a wish to go on with their business as the best method of liquidating their affairs. They determined to go on with it for this purpose. They accordingly drew up a scheme for compounding with their creditors, framed on the basis of paying fifty per cent. This was approved and accepted by most of their Petersburgh creditors. They then proposed this scheme to their creditors in general, embodying it in a circular letter, which was mailed to the non-residents. The circular was as follows:

"We offer to our creditors fifty cents in the dollar, to be paid as follows: Twenty cents in the dollar, first November, 1884; twenty cents in the dollar on the first March, 1885; and ten cents in the dollar in cash as soon as our banks begin to discount paper, which we believe will be in a very few days. The deferred payments to carry interest at the rate of six per cent per annum. We make no preferences, but make the same proposition to all. Please let us hear from you at as early a date as practicable.

Yours truly,

"PATTERSON, MADISON & Co." Meanwhile, and until the 8th of July, their business went on as before, except that they discharged two *8. C., 21 Fed. Rep. 602.

clerks, and made purchases of only such goods as were necessary to fill orders, buying both for cash and on credit. They continued to collect and sell, and they paid some of their debts in full. More than a majority of their non-resident creditors answered, accepting their proposition of compromise; a few of them accepting absolutely, but most of them in a form more or less qualified and conditional. The complainants and one or two other creditors refused to accept. In the course of a short time their proposition for compromise, after its acceptance as aforesaid, assumed features not contained and expressed in the circular of June the 18th. Those features were--First, that in order to its being obligatory on the defendants all creditors must accept it; second, that the creditors accepting must release that portion of their claims not provided to be paid; third, that the proposition would be kept open, if necessary, until October, 1884; and, fourth, some of their creditors had been, and others would be, paid in full.

The books of the concern show that the condition of the business is worse than is represented by the circular letter. I infer that the assets will not realize $10,000. It seems too, as already indicated, that after the proposition of compromise was made, and after its acceptance by many of the creditors was given, the defendants paid off a portion, more or less considerable, of their obligations in full in cash. The statement of their answer on this subject is as follows: "We reserved from the assets a sum sufficient to pay certain confidential debts of the firm which stood upon the highest ground of personal honor and obligation; most, if not all, of which have since matured and been paid out of the fund so reserved and set aside." There is no statement or indication in the answer of what the amount of the fund was which they so reserved aud used, or of the amount of these obligatious of honor. These must be gathered from the books. The answer further recites that one of defendants' counsel said to one of the complainants in this cause, before the suit was brought, in answer to an inquiry as to what security the creditors who accepted the compromise would have for the payment of the fifty per cent promised, that if the compromise was made with any of the creditors, and any other creditor should institute proceedings to obstruct the settlement and prevent the payment, he would advise the firm to prefer the parties who accepted for the amount due by the compromise. This conversation was not known to defeudauts until after the filing of the bill in this cause, and the counsel who made the statement did not know at the time that in their offer of compromise defendants required that all creditors should accept. One of the creditors of the firm, John Pickrell, avers as follows in an affidavit filed: "In a conversation he had with Patterson and Madison on the first of July, chiefly with the former, "they positively refused to make an assignment. The affiaut assured them that there could be no doubt but that all their creditors would accept it, and release the balance of their claims, and that all that was wanted was a devotion of their assets to the payment of their liabilities. This they refused to do positively. Affiant then pressed them to name some time within which their offer of compromise (which was expressly not to be binding until all the creditors signed) should be accepted or rejected. This also they refused to do, stating that none of their creditors could obtain judgment against them until October, and that they would do nothing until that time; and that they would, unless all the creditors should come in before, hold the negotiations open until October. The impression left on the mind of affiant from this conversation is strong that if any of their creditors should eventually force them by suit to make an as

signment, such creditor, would be left out or postponed to the other creditors."

In a letter to F. E. Patrick, one of their accepting creditors, defendants wrote on the 3d of July, 1884:

"Your letter accepting our offer of compromise was duly received, and we did not reply, hoping to hear promptly from all of the creditors, when we would at once be able to comply with our proposition. We have the acceptance of the majority, both in number and amount of money due, and think some are waiting for the maturity of our paper that they hold, before writing. We think in the course of two or three weeks, at furthest, we will have the compliance of all.

"Those of our creditors who have signified their agreement to our proposition may be assured that their interest shall not suffer in any event. Judgment caunot be had against us till late in October, and by that time, by our plan, all will receive thirty per cent of the debt; and to make an assignment now we do not believe they, the creditors, would ever get that much."

The business went on till the 8th instant, when the marshal of this court, under an order issued on the evening before, took possession of the goods in trade, premises, books and papers of the defendants. The order contained a rule upon the defendants to show cause on the 10th instant why a receiver should not be appointed, and why the usual preliminary injunction against interference with the effects of the firm should not be granted.

I am now to pass upon the motion for an injunction and a receiver.

The case is in its facts a novel and peculiar one. do not know any case like it in the reports. Most of the creditors who have accepted the proposition of com promise have but small amounts involved. The proofs seem to show that the complainants in this suit are the largest of the creditors. Their claim is for $2,167; and the debt is acknowledged to be due by the defendants in their answer. This indebtedness was incurred within ninety days before the suspension, and the books show that as much as $20,000 was received by defendants in a short period before and after their failure.

The bill complains that the defendants refuse to make assignment of their effects for the payment of their creditors; that the firm have no credit, and are still going on with a feeble and crippled business, consuming by expenses the fund out of which creditors must be paid; that defendants announce their purpose thus to continue their business until October if necessary; and that the only redress of creditors against this waste of the fund on which they must exclusively rely for payment is in a court of equity, by means of the appointment of a receiver and an injunction. They bring their bill therefore, and pray that through the instrumentality of a receiver the effects of the defendants may be sold, the debts due them collected, and that the fund so arising may be applied pro rata to the payment of all creditors.

From and after the acceptance by any creditors of the proposition for compromise made by the defendants on the 18th of June, 1884, all the assets of the firm, including property and choses in action, became a trust fund expressly dedicated to the payment, without preferences, of the fifty per cent of debts promised by the circular letter. Offering no indorsements, tendering no security, insolvent themselves, their proposition could be nothing else than a dedication of their assets to the fulfillment of the terms of the composition. By accepting, the creditors contracted to receive fifty per cent in full discharge of their claims. What was the consideration given by the defendants

for this agreement but the devotion of their assets to the payment of the fifty per cent?

It is a well-established law that partnership assets are, in the eye of equity, a trust fund for the payment of partnership debts. Being a trust fund, creditors have a right by proceedings in equity to subject it to the purposes of the trust. There is a good deal of learning in the books to the effect that creditors at large have not a direct lien upon this fund; but that their lien must be worked out through the equity of the individual partners, and availed of by derivative process.

However this may be in ordinary cases, the present case is one in which this implied character of a trust fund is made positive by an express dedication of their assets, by the partnership firm, in their proposition for compromise, to the payment of creditors pro rata. It is true that this dedication is open to impeachment on grounds about to be stated; but it is nevertheless true that as to the defendants themselves it is valid and binding, and they are estopped from objecting to the defects of the dedication.

The law is well settled that an insolvent partnership may convey its whole property for the payment of its debts, giving preferences among creditors if they choose; and moreover if the partners convey all their property for this purpose they have a right to insert a clause requiring a release from the creditors of the portion of their claims not paid. Such a clause will not vitiate the assignment. Gordon v. Cannon, 18 Gratt. 387.

In the absence of a bankruptcy law such a deed is just as unassailable in a Federal as in a State court, and would be unimpeachable in this court. The defendants in this case however did not make such an assignment. Nor did they do the next best thing to making an assignment; namely, they did not go on with their business, avoiding complications of every sort. Discarding professional advice, they took counsel from the street; and of their own heads, and without the aid of legal counsel, they drew up a proposal for a compromise, without preferences, and presented it to their creditors, a majority of whom,conciliated by the stipulation that it should be without any preferences, promptly accepted its terms; many of them presuming no doubt that a deed of assignment would be made, carrying its provisions into effect. But it afterward transpired that the defendants would not hold themselves bound by their proposal unless, before some unnamed date, all the creditors should accept; and unless in accepting the creditors should release the portion of their claims not provided for in the proposition. Creditors were also in course of time informed that negotiations would be held open if necessary until October, 1884. It is now stated that prefer... ences have been given. Creditors have also discovered that until all have signed the composition defendants are going on and intend to go on with their business, receiving moneys, selling off stock in trade, incurring new debts, and paying out cash at their own discretion, fearless of the courts, until October.

The question is whether this is a course of proceeding that a court of equity must needs sanction. If defendants had made a deed conveying to a trustee their stock of goods for the benefit of creditors, and had inserted in the deed a provision that they should remain in possession and continue the business as it was carried on before the deed, until default should be made in paying any of the debts secured, the law of the land declares that such a deed would have been fraudulent and void. Addington v. Etheridge, 12 Gratt. 436. Yet these defendants, after dedicating their property to the payment of their debts, went on to do, without making a deed, precisely what, if they had made one, would have been pronounced fraudulent.

Again a debtor may require of creditors a release from that part of their claims not provided for in a deed of assignment, if he conveys in the deed all his property; and if in the deed he gives the creditors all the information in regard to his condition which they ought to have in order to determine whether or not to accept the terms of the deed and to release what it does not provide for. Unless a deed requiring such a release does this the law pronounces it invalid and void. Gordon v. Cannon, 18 Gratt. 388. The defendants did not make a deed; but while giving out by their circular letter that they were dedicating all their assets to the purposes of the compromise, they now themselves say in their answer that they withheld a considerable amount of money in cash, and paid off various debts of honor in full. Instead of imparting this information in their circular of June 18th to their creditors, they withheld it from them, stating that they gave no preferences. Here again they did without executing a deed, what, if they had done it in executing one, would have rendered the deed fraudu. lent and void. The statement of their condition in the circular letter, instead of imparting true information to the creditors, not only suppressed the fact just alluded to, but was otherwise exceedingly deceptive. Most probably this latter deception was not intentional. Debtors usually victimize themselves more than their creditors in their estimates of their own pecuniary condition. The real fact was that the defendants were too far gone in irretrievable insolvency to have honestly continued their business. Every sale they have since made, every dollar they have since paid out, has been more or less prejudicial to the interests, and has been positively violative of the rights of their creditors. When goods in trade are once dedicated to the payment of creditors; when the character of a positive and express trust is once imparted to assets by the debtor's act, whether by deed or otherwise, then any dealing thereafter with them by the debtor is improper in itself and fraudulent in the eye of the law.

Here was the case of a firm hopelessly insolventinsolvent beyond their own belief, and beyond the representations they made to creditors in proposing a composition. Here was the case of a firm making a proposition of compromise without preferences, which implied, and from which the law presumed that they were offering to dedicate all their effects to its fulfillment, yet withholding large cash means, and paying off in full with this cash a portion of their creditors, after most of the others had accepted their proposition which promised no preferences, and while it was pending for the acceptance of the rest. Here was the case of a firm, which after dedicating and being presumed by law to have dedicated all their effects as a trust fund to the payment of all their debts pro rata, yet going on with the business as if the property was still their own, paying off debts in full, and subjecting an exceedingly perishable trust fund to the hazards and losses of a business which had brought them while in good credit to hopeless bankruptcy.

On the case thus presented to the court the crucial question is whether equity has any remedy for such a state of things. The complainants in this cause are the largest creditors of the defendants. The proposition of June 18, 1884, is still open to their acceptance. They would be willing to accept if any security were offered that the promise to pay fifty per cent would be fulfilled. In the absence of such security they would still be willing to accept, if by deed of assignment the assets of the defendants were set apart out of the control of defendants and appropriated to the payment of the claims of creditors. They complain that they are secured in neither of these forms; and they pray for an injunction and the appointment of a receiver as the