| New York Court of Chancery | Jul 21, 1840
Without adverting to the other circumstances of fraud, stated in the bill and not denied by the answer, I think the assignment of the property to an assignee who was known to be insolvent, is at least prima facie evidence of an intent to defraud the creditors of the assignor, notwithstanding the general denial of fraud in the answer. It is not conclusive ; and therefore a replication to the answer must be filed to enable the assignee to prove that circumstances existed to rebut the presumption of fraud, in assigning the property to an individual who was known to be irresponsible. Where the several creditors interested in the assigned property are consulted, and consent to the assignment to a particular individual, such consent would rebut the presumption that there was any intention to commit a fraud, although the assignee was known to be destitute of property ; as the creditors would have the right to repose themselves upon his honesty only. But where the failing debtor is permitted by the law to select his own assignee, without consulting his creditors and obtaining their consent, it is his duty as an honest man, to select one whose circumstances, as to property, are such as to afford a reasonable assurance to the creditors that the fund will be safe in his hands. And if the debtor, in such a case, selects one who is known to be insolvent, it is a fraud upon the rights of the creditors, and evidences an intention to place his property beyond their reach; or in the language of the statute, to delay or hinder them in the collection of their debts.
As the pleadings show a prima facie case of fraud, and the answer shows no good reason for the selection of an assignee who was notoriously insolvent, the motion to dis