Messrs. John Vary and Arnold & Evans, for appellees:

The bill embraces two or more distinct subjects. It contains several distinct grounds of Buits in equity.

1 Dan. Ch. Pr. p. 334, note 1; American Refrigerating & Constr. Co. v. Linn, 93 Ala. 610; 3 Brickel's Dig. pp. 388 et seq.; 15 Am. & Eng. Encyclop. Law, p. 947.

There is a misjoinder of parties and of matter. Dan. Ch. Pr. p. 335; Wait, Fraud. Conv. $135.

The bill charges a tort, and mingles tort with a simple trust, as well as a matter where assumpsit would lie. This may not be. Seals v. Pheiffer, 77 Ala. 281; West v. West, 90 Ala. 462; Rapier v. Gulf City Paper Co. 69 Ala. 476.

As an insolvent natural person might, the insolvent corporation could prefer a creditor by a debt in money or profits.

Goodyear Rubber Co. v. George D. Scott Co. 96 Ala. 439.

The property of a corporation is a trust fund for the payment of its debts, in the sense that when the corporation is lawfully dissolved, and all its affairs wound up, or when it is insolvent, all its creditors are entitled in equity to have their debts paid out of the corporate property before any distribution thereof among stockholders. It is also true, in the case of a natural person, that any conveyance of the property of the debtor without authority of law and in fraud of existing creditors is void. Hospes v. Northwestern Mfg. & Car Co. 15 L. R. A. 470, 48 Minn. 174; Wabash, St. L. & P. R. Co. v. Ham, 114 U. S. 587, 29 L. ed. 235; Clark v. Bever, 139 U. S. 96, 35 L. ed. 88.

by him, but still owes the same; that the stock of goods, etc., which was paid to and accepted by the commissioners in satisfaction of G. S. O'Bear's subscription of $8,000 was not worth more than $4,000, was fraudulently accepted in full payment, and that said G. S. still owes the balance of $4,000; that the lot of jewelry with which W. G. O'Bear was to pay his subscription of $3,000, and which was so accepted, was worth only $1,000, and hence that W. G. still owes the balance of $2,000; that Mrs. F. C. O'Bear did not pay the amount subscribed by her, either in property or money, and still owes the same. Said G. S. O'Bear and W. B. Copeland were the commissioners appointed by the probate judge to open books of subscription to the capital of said corporation; and the bill charges "that the pretense and representation that said W. B. Copeland had paid his subscription in cash, and that Mrs. F. C. O'Bear had paid her subscription by the transfer of watches and three diamond rings, when in truth no such payments were made, and the excessive valuation of the property transferred by G. S. and W. G. O'Bear, was knowingly and intentionally made by collusion and agreement among said incorporators, and constituted fraud upon persons who might become creditors of said corporation." The corporation upon organization commenced and continued business until December, 1888, or January, 1889, when most of its stock of goods was destroyed by fire, and since then it has not carried on its business. While carrying on its business, the corporation bought large quantities of merchandise, and at the time of the fire had on hand goods amounting in value to many thousand dollars, which were insured to a large amount, and it was agreed that the insurance companies should pay the corporation the sum of $7,000 on account of said loss. The present bill is filed by Volfer & Co. and At the time of said fire the corporation was inothers, as judgment creditors of the O'Bear debted to complainants in the several sums Jewelry Company, a corporation. Said cor- stated in the bill, and to divers other persons, poration, R. D. Johnston, the Alabama Na including the Alabama National Bank, to tional Bank, G. S. O'Bear, Jr., W. G. O'Bear, which it owed $2,500, and was then and ever F. C. O'Bear, and W. B. Copeland are made since has been confessedly insolvent, the bulk parties defendant. It is made to appear by of its assets after the fire consisting of the the bill that the O'Bears and Copeland organ- sums owing it by the insurance companies. ized said corporation with a proposed or nom- The bill further avers "that for the purpose of inal capital of $25,000, divided into 250 shares preventing complainants and other creditors of $100 each. Of these, G. S. O'Bear sub- of said corporation from subjecting said insurscribed for eighty shares, or $8,000, to be paid ance money to the payment of their debts, and by transferring to the corporation a certain to save the same, or as much thereof as possi stock of jewelry, store fixtures, etc. W. G. ble, to said incorporators, said company as O'Bear subscribed for thirty shares, or $3,000, signed and transferred the policies of insurance to be paid by transferring to the corporation a held by it to the Alabama National Bank belot of miscellaneous jewelry, a list of which fore the dispute which had arisen between it was, according to the report of the commis- and said insurance companies had been setsioners, in their hands. Mrs. F. C. O'Bear tled, and complainants charge that for said subscribed for twenty shares, or $2,000, with transfer there was no consideration except that the privilege of paying for the same by deliver said corporation was indebted to said bank in ing to the company certain gold watches (28) the sum of twenty-five hundred dollars, as and diamond rings (3). And W. B. Copeland aforesaid, and that said bank received in cash subscribed for twenty shares, to be paid in on account of said policies a sum not less than money. The corporation organized in Feb- seven thousand dollars; and, after appropriatruary, 1888, and a report was made to the pro-ing to itself a sufficiency to pay the debt due bate judge's office, setting forth that said subscribers for stock had made the transfers of property and the cash payments as provided for in the terms of their respective subscriptions. The bill avers that said Copeland did not and has never paid the $2,000 subscribed

McClellan, J., delivered the opinion of the

court:

said bank, it paid over the balance, amounting to the sum of forty-five hundred dollars, to the persons who composed said corporation, or to some of them, or for their personal account." The bill further avers: "Complainants are advised that said [insurance] money, as well

moneys in his hands, and to turn over all property and effects of said corporation; and, finally, that all the assets thus brought together be administered for the equal benefit of the creditors of said corporation.

as all the other property of said corporation, was a trust fund, and, after said fire and the insolvency of said corporation, belonged to said corporation in trust for the payment of the debts thereof, and that the collection thereof and the payment by said bank of the proceeds The Alabama National Bank demurred to to or on account of the individual corporators the bill, and among other grounds assigned was a misapplication of said funds, for which the following: "(1) There is a misjoinder of said bank, which (as your orators charge) parties defendant to said bill of complaint, in knew the insolvent condition of said corpora- this: that this defendant, alleged to be a pretion, as well as the said individual corporators, ferred creditor, is improperly joined as a dewas and is liable to the creditors of said cor- fendant with stockholders of the O'Bear Jewporation." It is further shown that on Sep-elry Company, who are charged with not tember 4, 1889, said corporation appeared in court, and confessed judgment in favor of said bank for $1,075 on a complaint then filed, and immediately after the confession and registration of this judgment, the jewelry company executed a general assignment to R. D. Johnston for the benefit of its creditors; and it is charged that said confession of judgment and assignment were parts of one and the same transaction, and should be so decreed and administered; and that said assignee took possession of the property of said corporation, converted the same into money, and out of such proceeds paid said judgment to the bank, and still has a small sum in his bands.

having legally paid up their subscriptions to the capital stock of the O'Bear Jewelry Company. (2) The said bill of complaint is multifarious, in that complainants seek in the same suit to have an accounting of the trust created by the alleged deed of assignment made by the O'Bear Jewelry Company, and to collect unpaid subscriptions of the shareholders of the O'Bear Jewelry Company alleged to be frandulently withheld. (3) The said bill of complaint is multifarious in that it joins, with the claims against the shareholders of the O'Bear Jewelry Company for unpaid subscriptions, claims against this defendant for money alleged to have been improperly paid The theory upon which complainants seek to this defendant to satisfy a judgment conrelief is thus set forth in the bill: "Complain- fessed, alleged to be part of a general assignants are advised that the entire assets of said ment made to R. D. Johnston, for the creditors corporation constitute a trust fund for credi- of said O'Bear Jewelry Company, and money tors, and that all persons who in any wise alleged to have been fraudulently received knowingly participate in the unlawful appro- from insurance, and fraudulently paid to the priation of said trust fund, or any part thereof, individual stockholders of the O'Bear Jewelry will be required in equity to restore the same; Company. (4) The said bill of complaint is that the subscribers to said capital stock will multifarious, in that it seeks to collect unpaid be compelled to pay the differences between subscriptions to the capital stock of the O'Bear their respective subscriptions, and the actual, Jewelry Company, and also to settle a trust, reasonable value of the property transferred and to have this defendant account for monby them in pretended payment thereof, and ev fraudulently paid to the individual sharethat such subscribers as have made no pay-holders of the O'Bear Jewelry Company. (5) ment or transfer of property will be required full payment to make; that said confession of judgment will be held a part and parcel of said general assignment, and said Alabama National Bank will be required to pay the sum received by it in payment thereof, as aforesaid, for the benefit of creditors, and that said bank will be further required to account for the proceeds of the insurance policies received by it as aforesaid, and to restore so much thereof as said bank paid to the individuals composing said corporation or for their use." The prayer is that a receiver of the property and effects of the O'Bear Jewelry Company be appointed, and authorized to receive the moneys and ef fects thereof to which it may be decreed entitled under the allegations of the bill; that said subscribers to the capital stock of said corporation be required to pay to the court the amounts which they respectively subscribed, less the actual reasonable value of such property as they transferred to said corporation; that said Alabama National Bank be required to pay into court or to the receiver to be appointed the amount received by it on account of said judgment, as also the sum received by it as the proceeds of the policies of insurance over and above the debt owing it; and that the said assignee, R. D. Johnston, be required to file in court his accounts as such assignee; and to pay into court or to the receiver all

The said bill of complaint is further multifarious, in that it seeks a settlement of a trust, and also to set aside a fraudulent disposition of the property of the O'Bear Jewelry Company."(7) This defendant demurs to section 28 of said bill of complaint, for that it is therein alleged that the assets of said O'Bear Jewelry Company constituted a trust fund for the benefit of all creditors alike, when in law the O'Bear Jewelry Company could legally prefer a creditor." And W. B. Copeland separately demurred to the bill assigning the fol lowing among other grounds: (1) There is a misjoinder of parties defendant to the said bill, said Copeland being made defendant with others for the result of transactions with which the said bill does not show he was connected or in any way responsible. (2) The bill is multifarious as to him, because he is by the bill brought in to defend on various matters with a large portion of which the bill does not show he had any knowledge, participation, or connection. (4) There is no equity in the bill, because the bill brings in parties as defendants in regard to matters with which they are not connected, and the relief sought is not the same against all of the defendants." The chancellor overruled these, as well as all other, assignments of demurrer, and from his decree in that behalf this ap peal is prosecuted.

As we have seen, it is expressly averred in | 102 U. S. 148, 26 L. ed. 106: "In law a corthe bill itself that the theory upon which alone poration is as distinct a being as an individual complainants seek relief is that the assets of is, and is entitled to hold property (if not the O'Bear Jewelry corporation constitute a contrary to its charter) as absolutely as an intrust fund or estate; that said corporation was dividual can hold it. Its estate is the same; the trustee thereof, and the complainants and its interest is the same; its possession is the the other creditors were the cestuis que trustent same." An individual not indebted may give thereof; and that the chancery court, by virtue his property away, provided the gift is not acof its general jurisdiction over trust estates, tuated by a purpose to defeat future creditors. was competent to take charge of this fund So can a partnership. And so also, undoubt upon the invocation of such cestuis que trus- edly, can a corporation, if the gift would not tent, restore and protect it by collecting moneys be violative of its charter. An individual belonging to it from all sources, however diverse owing debts, but solvent, cannot give away and disassociated with each other they might be, his property to the prejudice of existing credand to ultimately settle the trust by dividing itors. Neither can a partnership nor a corthe fund ratably among the beneficiaries. The poration. An insolvent individual and an inrespondents, by their demurrers, insist that solvent partnership may-or might have be said assets do not constitute a trust fund in the fore the Act of 1892-93-sell and convey all sense necessary to the maintenance of the bill, of his or its property to one creditor in payexhibited, as it is, against parties who have ment of his debt, the valuation being fair, the nothing, and are not chargeable with any price adequate, and no benefit being reserved wrong, in common, but whose acts, claims, to the debtor; and so, as expressly ruled by and attitudes in respect of and towards the cor- this court in Goodyear Rubber Co. v. George poration are entirely distinct and independent; D. Scott Co. and Gibson v. Trowbridge Furni and hence they say that the bill is multifarious. ture Co., supra, following the decisions in And in the arguments submitted in this court other states where this American doctrine obthe decree below is attempted to be supported tains, may an insolvent corporation sell and solely and expressly upon this theory of the convey all its property or apply all its assets to spoliation of a trust estate. So that the main, the payment of one creditor, leaving nothing if not only, question presented on this appeal, for others. Was such a disposition of a trust is whether the assets of an insolvent corpora- estate ever permitted by any court in any land tion constitute a trust fund for its creditors in under any system of jurisprudence? I am unthe proper and essential meaning of those able to conceive of it. Certain things have terms. This whole idea, that the property of heretofore been generally supposed to be esseninsolvent corporations is held by them in trust tial to trust estates. There must be property for creditors, -is a trust estate in their hands, held in trust. There must be a trustee, or the -and to be administered by chancery as such, chancery court in the place of a trustee. originated in a dictum of Judge Story in Wood There must be beneficiaries,-cestuis que trustv. Dummer, 3 Mason, 308, Fed. Cas. No. ent. The property belongs in equity to the cestuis 17,944. It had no existence at common law, que trustent. They are beneficially interested and has none to this day in the law of England, in it or entitled to it. The legal title is in the but is distinctly a creation of some courts in trustee. Now, when the beneficiaries constithis country, and known in jurisdictions where tute a class, and take, or are entitled in equity it obtains as the "American doctrine." This to take, the property held in trust as members court has quite recently adopted it, and held of a class, such as the heirs of A. B., or the in the cases of Corey v. Wadsworth, 99 Ala. 68, legatees named in the will of C. D., or as cred23 L. R. A. 618; Goodyear Rubber Co. v. George itors, nobody, except the votaries of this D. Scott Co. 96 Ala. 439, and Gibson v. Trow- American doctrine, has ever supposed that bridge Furniture Co., 96 Ala. 357, that the as- one member of the class, all members of which sets of an insolvent corporation are impressed are equally interested in the trust property, with a trust in the hands of the company in would be entitled at the election of the trustee favor of its creditors first, and then in favor to take the whole estate. This is at war with of its stockholders. The present writer dis all essential notions of trusts and equitable ju sented from the opinion and conclusion of the risdiction and administration of them. It may court in each of those cases. To his mind be argued, however, that these decisions are there is nothing clearer in principle than the wrong in this particular, but sound in respect proposition that the property of a corporation, of the declaration that the property of insolsolvent or insolvent, bears identically the same vent corporations is trust property. But the relations to the creditors of such corporation as decisions are not wrong in this particular. the property of an individual or copartner- The soundness of the proposition they assert ship, solvent or insolvent, sustains to the credit has long been recognized by this court. Allen ors of the individual, or partnership, and is or v. Montgomery R. Co. 11 Ala. 437; Goodwin is not to be impressed with a trust character. v. Gehee, 15 Ala. 232. Given the power, upon the same circumstances and under the which cannot be denied, to hold and dispose same conditions in the first case as in the of property as an individual, and the well setlatter two. Within the limits of its charter, tled doctrine in this state, and generally, that every corporation authorized to hold and dis- the insolvent individual may transfer all his pose of property at all is entitled, and this property in payment of one or more, to the generally by the very terms of the statute exclusion of all other, debts, it follows in a creating it, to hold and to dispose of it as a natu- logical sequence, which nothing but the illog ral person might hold and dispose of it under ical exercise of the sheer power of courts of the laws of the land. As said by Judge last resort can break, that an insolvent corBradley in Graham v. La Crosse & M. R. Co.,poration may in like manner prefer one cred.

itor to the exclusion and defeat of all others. | final source. Even in that single class where With this undoubted power in the corporation equity proceeds upon the maxim that an intenor its officers, it would seem to be most mani- tion to fulfill an obligation should be imputed, fest that neither the corporation nor its officers and assumes that the purchaser intended to act could possibly sustain the relation of a trustee in pursuance of his fiduciary duty, the notion to other creditors in respect of corporate as of fraud is not involved, simply because it is sets, which they are under no duty at law or not absolutely necessary under the circumequity to administer for the benefit of those stances; the existence of the trust might in all who are called the "cestuis que trustent." cases of this class be referred to constructive But apart from this consideration, which, fraud. This notion of fraud enters into the indeed, was not in my mind when I felt con conception in all its possible degrees. Certain strained to dissent in the first of the cases on species of the constructive trusts arise from the question decided by this court, viz., Corey actual fraud. Many others spring from the ▼. Wadsworth, I cannot, upon well settled and violation of some positive fiduciary obligation. elementary general principles and definitions, In all the remaining instances there is, latent see my way to an acceptance of this so-called perhaps, but none the less real, the necessary "doctrine." All trusts are of two kinds, element of that unconscientious conduct which expressed and implied. It is of course, no- equity calls 'constructive fraud."" 2 Pom. where pretended the relations between an in- Eq. Jur. § 1044. If this view be adopted, the solvent corporation and its creditors constitute relation between an insolvent corporation and an express trust. All implied trusts are of its creditors is excluded from every possible two kinds, resulting and constructive. "Re category of constructive trusts for the reason, or sulting trusts," says Mr. Pomeroy," arise where by virtue of the fact, that that relation involves the legal estate is disposed of or acquired, not no fraud whatever; and as that relation is, as I fraudulently or in the violation of any fiduciary have seen, the sole ground for the doctrine of duty, but the intent in theory of equity ap- trusts in cases like this, the doctrine is unsound, pears or is inferred or assumed from the terms unsupported in principle or reason, and should of the disposition, or from the accompanying not be upheld by any court. But if we adopt the facts and circumstances, that the beneficial view first stated above that constructive trusts interest is not to go with the legal title." Pom. may arise by force of some equitable principle Eq. Jur. § 155. And they are said to arise un- independent of the existence of fraud, actual der the following several states of fact: (1) or constructive, and which seems also to be the Where the purchaser of an estate pays the pur- opinion of Mr. Perry (1 Perry, Tr. § 168), the chase money, and takes title in the name of a same conclusion is equally inevitable. Elimithird person; (2) where a person standing in nating the element of fraud from the consida fiduciary relation uses fiduciary funds to pur- eration, there still remains as an essential chase property, and takes the title in his own predicate for the existence of a trust, by conname; (3) where an estate is conveyed upon struction of law, some unconscientious contrusts which fail, either in whole or in part, or duct on the part of the person to be held as are not declared, or are illegal; and (4) where trustee in invitum, or some unconscionable rea conveyance is made without consideration, sult, through means or under circumstances, and it appears from the circumstances that the which bring the transaction within some recgrantee was not intended to take beneficially. ognized title of equity jurisprudence; as, for 10 Am. & Eng. Encyclop. Law, pp. 4, 5. It re-instance, where a tenant in common buys in quires no discussion to the demonstration of the impossibility of referring this American doctrine of trusts for corporation creditors to the head of resulting trusts.

All constructive trusts are of three kinds, or arise from one or the other of three conditions of fact: First, trusts arising from actual fraud; second, trusts which arise from constructive fraud; and, third, trusts that arise from some equitable principle, independent of the existence of fraud. 10 Am. & Eng. Encyclop. Law, p. 60. As there is no fraud, actual or constructive, involved in the naked fact that a corporation is insolvent, has cred itors which it is without assets to pay in full, -and this fact is the base for all the superstructure of this doctrine of trust for its creditors, it cannot be conceived, and, I suppose, has never been contented, that such trust is referable to either the first or second heads of Constructive trusts. And it is the conclusion of so high an authority as Mr. Pomeroy that the third classification of constructive trusts stated above has no existence dissociated from actual and constructive fraud. It is his opinion "that all instances of constructive trusts properly so called may be referred to what equity denominates fraud, either actual or constructive, as an essential element, and as their

an outstanding term for his own benefit, he is trustee for his cotenant, and, where a conveyance has been made through ignorance, accident, or mistake, the grantee will be the trus tee in a constructive trust for the grantor. Thus, wherever one is placed in such relation to another that be becomes interested with or for him in property or business, he is prohibited from acquiring rights in that property or business antagonistic to the person with whom he is associated; as, for illustration, if one partner or other person occupying a fiduciary relation renew a lease theretofore held by the partnership or by the person renewing and another in confidential relation to him, in his own name and with his own funds, he will be a trustee for his associate by construction of law. And so, where, by accident, ignorance, or mistake, more land is embraced in a conveyance than was bargained and sold, a constructive trust arises in favor of the grantor for the excess. 10 Am. & Eng. Eucyclop. Law, p. 80. But in all these cases, in all cases of constructive trusts where it is said by some authorities chancery proceeds without regard to fraud, relief is granted upon some acknowledged ground of equitable jurisdiction, and administered by holding the wrongdoer to account as a trustee There must be a con

fidential relation and unconscientious conduct | sion of his creditors, under any cover whaton the part of one party to and in abuse of that relation, or there must be some ignorance, accident, mistake, or the like, against the unconscionable consequences of which equity will on general principles grant relief, else there can be no constructive trust.

ever. The property of the partnership cannot be appropriated to the personal use of the partners or in payment of the debts of the individuals composing the firm, to the exclusion of partnership creditors under any pretense whatever. And so the property of the corpoThat the relation of debtor and creditor is ration cannot be diverted to the use of the not of a confidential character there can, of stockholders to the exclusion of creditors course, be no doubt. It is absurd to say that under any circumstances whatever. The powthe creation of that relation involves aught of ers and limitations upon the powers of an inaccident, mistake, or ignorance. That a debtor solvent corporation to deal with its property has property of his creditor which in equity are precisely the same in all essentials as the and good conscience belongs to the creditor be- powers and limitations upon the powers of incause the debt contracted in its sale has not solvent individuals and insolvent partnerships. been paid, there is no warrant for saying. The estate of the debtor in each class is essenEqually unwarranted is the idea that in equity tially the same. The corporation no less than all the property of a debtor who has become the individual and the partnership, is, at law insolvent belongs to the creditor, and is held and in equity, the owner of its property. The by the debtor in trust for him. And this idea rights, remedies, and estates of creditors of of ownership in the cestui que trust underlies each are also the same. They do not own the whole doctrine of trusts of every descrip- the property of their corporation debtor, or tion. In all trusts the legal title is in one; the any interest in it, in equity or at law, any equitable ownership in another. A mere debt more than they own the property of their inagainst one who has property, whether solvent dividual or partnership debtor. Their right or insolvent, is not ownership; nor is a right against each is the same to have their debts to charge a fund or a lien upon it the beneficial paid out of the property; but this right is not ownership of it. Confessedly, the property that of a cestui que trust, but, whether the and assets of a solvent corporation do not con- property is corporate or individual or partnerstitute a trust fund for its creditors. Can it be ship, it is the right of a creditor simply. Conpossible that the mere passing of a corporation fessedly, even this right may be defeated as to from a state of solvency to a state of insolvency any particular creditors by a sale of the propamounts to a declaration of an express trust erty in payment of another creditor, or by its for creditors, or to a resulting trust, upon the being taken on execution in favor of another, theory that title to the assets of the concern or even by its sale by the debtor-corporation, should have been made to the creditors? Or individual, or partnership-to a third person; is it conceivable that this mutation from the and this although such purchaser have notice one condition to the other does violence to a of the insolvency of the debtor. All which, confidential relation which never existed, and as I have seen, would be impossible if the hence is a constructive trust? Or that this property constituted a trust estate, with the mere change of inherent conditions is the ves- corporation as trustee and the creditors as titure in the corporation, through the igno- cestuis que trustent, for in such case all who ake rance or mistake of the creditor, or through with notice of the insolvency would take submistake or through fraud, of a greater title, or ject to the trust, and themselves be held as title to more property, than was contemplated trustees in inritum. Not only are the rights and intended, when, before the change, con- of individual, partnership, and corporation fessedly, the corporation had the absolute and creditors the same against their insolvent debtindefeasible title, free from all trusts, to all ors' estates, and each different in the same its property and assets, and when the change way from the rights of cestuis que trustent, but itself involves nothing of fraud, of abuse of the remedies of a corporation creditor, in the fiduciary relations, of ignorance, or mistake, absence of a statute, are precisely those of a or accident? The learned judges who uphold creditor of an individual or partnership. The this American doctrine may find something in remedy of each class of creditors may, upon a these conditions of fact upon which to con- given state of facts, be in equity; but, when struct a trust, but I confess my utter inability this is so, it is not because of any supposed to follow their arguments or to see with their trust, but upon some recognized ground of eyes. Nothing is clearer to my humble judg-equity jurisprudence, as where the debtor has ment than that the insolvency of a corporation -the existence of a corporation with property and debts, the property being insufficient to pay the debts-is not within any definition of any trust known to equity jurisprudence. The creditors of such corporation have the same rights against it as they have against an insolvent partnership, or an insolvent individual debtor, and no other or more. They do not at law or in equity own the property of the one or the other; but the property of each is a fund for the payment of debts in the sense Not all the publicists and courts in this counthat neither can give it away or dispose of it try, nor the ablest of them, countenance this with intent to hinder, delay, or defraud cred- so-called "American doctrine." Mr. Pomeroy itors. The property of the individual cannot expressly repudiates it. He says: "In applybe appropriated to his own use, to the excluing this principle [of constructive trusts], care

fraudulently transferred his or its property, and chancery is invoked to set aside the transfer and subject the property. And, when chancery has thus assumed jurisdiction, it will administer the estate for the equal benefit of all creditors before it; and to that end the court becomes a sort of trustee sub modo in the administration of the property, but not with reference to the character of the estate, as being held in trust or otherwise, before and at the time jurisdiction attached.