Fox v. Heath

21 How. Pr. 384

• Court: New York Court of Common Pleas
• Decided: August 15, 1861
• Status: Published

Opinion

Brady, J.

The assignment which the plaintiff in this case seeks to set aside, was executed by three partners, one of whom is an infant. The interest of such infant did not pass by the assignment. The assignee took no title, could convey none as to his part, and the execution of the trust is impossible. The assignment of property for the benefit of creditors must be absolute and irrevocable in terms, and the instrument itself not subject to any defeasance by the act of any of the parties. The act of the infant in signing the' paper is voidable, and may be counteracted by him either before or at maturity. The estate cannot he administered with the doubt of the infant’s ratification, which can be solved only when the infant arrives at the age of twenty-one years. The creditors cannot he delayed under such circumstances. I think the assignment void, and that a receiver should be appointed. I think, also, that the assignee of the judgment debtors, having given the security required by law, and having accepted the performance of the trust, should be appointed the receiver in this case, and order accordingly. Order to be entered herein to be settled on two days’ notice.