such creditors, be null and void. With reference to this statute, the following language is used in one of the opinions of the supreme court:

"I take it the statute, at least, prohibits an assignment of all the property of an insolvent debtor to a trustee for the benefit of all his creditors, even though they are to enjoy it pro rata; while it allows a preference to be given to favorite creditors, to the excirision of others, and especially if the insolvent excepts from the assignment a remnant of his property. Thus equality among creditors is discountenanced, in disregard of the long established maxim that equality is equity." Hall v. Denison, 17 Vt. 310.

Our conclusion, based, as we think, upon both principle and authority, is that the statute under consideration should not be construed as prohibiting or interfering with the making of partial assignments; that, so far as the statute is concerned, such assignments are perfectly valid. The repeal of the act in question, and substitution therefor of a more comprehensive law, by the Fifth general assembly, being subsequent to the transactions involved, could not in any event affect the decision of this case. Since the deed to Campbell omits all personal property of the firm at Deadwood, it is a partial assignment. It follows from the foregoing conclusion that this assignment was valid at common law, and that the statute then existing had no application thereto. We do not deem the suggestion made in Van Patten v. Burr, 52 Iowa, 518, S. C. 3 N. W. Rep. 524, distinguishing between assignments directly to the creditor in payment, and assignments in trust for creditors, sufficiently supported by either reason or authority to warrant a modification of the foregoing views.

5. But counsel for defendant in error argue that the deed to Metcalf, the assignment to Campbell, and the Dakota mortgages were all executed in pursuance of a single design on the part of the partnership, and consequently those instruments represent but one transaction; that it was the intention of the partners to make a general assignment, with preferences, but that for the purpose of evading the statute, and securing the preferences which it prohibited, they devised and executed the plan of preferring the favored creditors in separate writings. Upon these grounds counsel base the conclusion that the assignment in question should be held void. It may be impossible, considering the facts before us, and the view that our statute did not prevent partial assignments, to say that a general assignment could have been here contemplated, or that an evasion of the statute was attempted; but, admitting for the purposes of argument, the correctness of the foregoing premises stated by counsel, we are satisfied that the conclusion they draw therefrom is unsound. There is no language in the statute which, under any circumstances, invalidates the assignment itself. The preferences only are declared to be void. In this respect it is unlike corresponding provisions which now exist or have existed in Massachusetts, Iowa, Alabama, and other states. If preferences were given in the deed of assignment, no one contends that the assignment itself would thereby fail; but if preferences stated in

the instrument would be harmless, why should the declaration thereof through separate writings render the assignment void?

The fact that an insolvent debtor clearly attempts to evade the statute by preferring certain creditors in separate transfers or instruments conveying portions of his property at or about the time he makes a general assignment, if such fact can be and is established, may be a reason for avoiding the preferences so given, in a suit by or on behalf of injured creditors; but it is not a reason for declaring the assignment itself invalid. The assignment, this being the only objection thereto, may well be permitted to stand, and the property included be distributed ratably by the assignee among the creditors. The purpose of the statute was not to discourage or restrain the making of general assignments, but to inhibit partiality therein toward favorite creditors. To say that the assignment itself must fall on account of the attempted evasion of the provision relating to preferences, is to give an effect to the law which the legislature did not express, and which we are satisfied it did not intend. Therefore it makes no difference, so far as the question here involved is concerned, whether or not the Metcalf assignment and the Dakota mortgages were a part of the same transaction with the assignment to Campbell. Assuming that they were, and that all, taken together, constitute a general assignment wherein the assignors attempted to evade the statute, still the Campbell branch of the transaction, the validity of which is the only question before us, should be sustained.

6. The much-abused principle that a deed which is partly void as against the provisions of a statute, or as against the common law, is void altogether, has no application to the case at bar. This transaction, if it could be considered a general assignment, would not be in conflict with either the statute or the common law. The statute would simply operate to annul the preferences, allowing the assignment to stand, while the common law would sustain both the preferences and the assignment. On the misapplication and also the true use of the maxim, "void in part, void in toto," see Curtis v. Leavitt, 15 N. Y. 123, 124, and cases cited; Savage v. Burnham, 17 N. Y. 576. It must be remembered always that the deed to Campbell, considered by itself, is not challenged on the ground that there was any fraud in fact connected with its execution; moreover, that it is admitted that the assignment to Metcalf paid or secured a bona fide indebtedness of the partnership, and that the Deadwood mortgages secured claims existing against the firm, in favor of the creditors named therein.

7. One question yet remains to be considered. The list of creditors mentioned in the schedule filed for record after this suit was brought, contains, among other names, that of a firm known as Jensen & Johnson. The Jensen there referred to is admitted to be one of the partners in the partnership making the assignment under consideration. Counsel contend that this fact invalidates the assignment in law, since one of the assignors is a beneficiary, and will re

ceive a small part of the proceeds from the sale of the assigned estate. Their position is, we think, untenable. Section 1520, Gen. St., upon which this objection is based, reads as follows:

All deeds of gift, all conveyances and transfers or assignments, verbal or written, of goods, chattels, or things in action made in trust for the use of the person making the same, shall be void as against the creditors existing of such person."

The intent with which the transaction is had governs the application of this provision. Similar statutes have been held to include only those cases where the use or the trust for the benefit of the grantor was the principal purpose accomplished by the conveyance, but where such benefit was merely an incident, the main purpose and effect of the instrument being lawful, the application of the statute, save possibly as to such incidental use or benefit, has been denied.

In Curtis v. Leavitt, supra, at pages 122 and 123, it is said:

*

"All reasoning and all authority, as we have seen, concur in the conclusion that it [the statute of personal uses] has no application to cases of real and actual alienation upon valuable consideration, and for active and real purposes, although incidental benefits are reserved to the grantor. * * This statute, then, only avoids conveyances, etc., which are wholly to the use of the grantor. If we came to a different conclusion, if we held that it applied to transfers made for other objects, but containing a residuary interest or partial use for the debtor, then the question would arise whether the whole is void or only so much of the grant as is not sustained by the valid purpose for which it was made. On this point I should come to the conclusion that the statute does not subvert all instruments in which any inoperative trust is expressed along with others that are good, but leaves those which are good and valid to stand."

And, among the propositions adopted by the court, on page 295 is the following:

"It being the opinion of the court that the statute applies only to conveyances, etc., primarily for the use of the grantor, and not to instruments for other and active purposes where the reservations to the grantor are incidental and partial.' See, also, Morgan v. Bogue, 7 Neb. 429; Shoemaker v. Hastings, 61 'How. Pr. 97

In determining the question before us, the character of the use intended by the deed is likewise an important consideration. It is extremely doubtful if Jensen individually would realize any material benefit by the payment of the claim of Jensen & Johnson; for his interest in the sum thus received would, of course, be liable for the debts of that partnership, while it is not beyond the reach of the creditors of Jensen, Bliss & Co. after they have exhausted the property of the latter firm. See Fanshawe v. Lane, 16 Abb. Pr. 71; Welsh v Britton, 55 Tex. 118.

8. Under the foregoing views the operation of the assignment stat ute considered was confined to a narrow field. As now construed, it permitted the debtor to choose between a general and a partial assignment, and its only effect was to require that if he elected to make

the former, and this deprived his unpreferred creditors of recourse against his property, and divested himself of all control over his entire estate, so that he could not personally superintend the payment of his debts therefrom, such estate should be divided pro rata among his creditors. But we are satisfied, not only that this interpretation of the statute is in harmony with the language used, and supported by authority, but also that it may be in accord with the better reason and the sounder policy. Experience demonstrates the extreme danger of interfering by legislation with the debtor's jus disponendi, so long as he retains dominion over his property. Even a careful and skillful attempt by statute to fully guard all the equitable rights of creditors might result in untold disaster to the business world. cordingly legislative bodies, our own included, have exercised extreme caution in dealing with the subject of assignments, and have left untouched many of the principles relating thereto which prevail at common law.

Ac

Our assumption, in the opinion filed, that the statute inhibited partial assignments for the benefit of creditors, was broader than its provisions justified, and led to a conclusion which, as already suggested, we now consider erroneous.

The judgment will be reversed, and the cause remanded.

(69 Cal. 79)

SUPREME COURT OF CALIFORNIA.

HALL v. SUPERIOR COURT, CITY AND COUNTY OF SAN FRANCISCO. (No.

11,349.)

Filed March 10, 1886.

1. EXECUTORS AND ADMINISTRATORS-VERIFICATION OF CLAIMS AGAINST ESTATE. Where a claim against the estate of a decedent is verified by an affidavit stating that "the amount thereof, to-wit, the sum of four hundred, is justly due." the word "dollars" being omitted, such omission will not affect the validity of the claim, where the defect is supplied by reference to the body of the claim.

2. SAME-REFERENCE.

A reference of a claim against the estate of a decedent is sufficient, under the California Code of Civil Procedure, section 1507, if made in court on the consent of parties.

In bank. Application for writ of review.

Geo. D. Collins, for petitioner.

MYRICK, J. Application for a writ of review. Two points are made by petitioner:

1. That the claim was not properly verified. The estate of Mary Ann Hall, deceased, was in process of administration, and one Newman presented to the administrator a claim for $400, for services. rendered to deceased in her life-time. It was stated in the claim to be for the sum of $400. In the affidavit to the claim it was stated "that the amount thereof, to-wit, the sum of four hundred, is justly due," etc., the word "dollars" being omitted. It is claimed that the affidavit was not sufficient in that it did not state that any sum was due the claimant. We think the affidavit sufficient; it referred to the body of the claim, in which the amount was stated, and then said the amount thereof * was justly due.

2. That there was no reference, as provided in section 1507, Code Civil Proc. The parties signed a written stipulation, and thereupon the court in which the administration was pending made an order of reference. The point is made that as the approval by the court or judge was not made upon the stipulation, and filed as a distinct act, there was no valid reference. A clause in the section referred to reads: "If the parties consent, a reference may be had in the court." This portion of the section was complied with.

The application is denied, and the order is discharged.

MCKINSTRY, Ross, SHARPSTEIN, and THORNTON, JJ., concurred. v.10p.no.4-17