Opinion of the Court-STILES, J. [5 Wash. the assignment was made, the assignee has no power to move against the mortgage on the ground of its fraudulent character, and can, therefore, acquire no possession of the property covered by it. If this law is no more than an act to regulate common law assignments, the point must be conceded to be well taken. A similar law exists in Oregon and Iowa, and in those states it has been held generally that the assignee stood in the shoes of the debtor and could not recover property conveyed by him in fraud of creditors before the assignment. Hahn v. Salmon, 20 Fed. Rep. 801; Dawson v. Sims, 14 Or. 561 (13 Pac. Rep. 506); Van Patten v. Burr, 52 Iowa, 518 (3 N. W. Rep. 524); Prouty v. Clark, 73 Iowa, 55 (34 N. W. Rep. 614). In each of those states, however, there is some difference between the statutes passed upon and our act of 1890. In Iowa there is no discharge of the debtor, and in neither state does the court or creditors have any power to change the assignee. In both the declaration of the first section of the act is substantially the same as that of our own law, viz.: "No general assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors, shall be valid unless it be made for the benefit of all his creditors in proportion to the amount of their respective claims." And in both there is a section substantially the same as our $2753, viz.: "Any assignee as aforesaid shall have as full power and authority to dispose of all estate, real and personal, assigned, as the debtor had at the time of the assignment, and to sue for and recover, in the name of such assignee, everything belonging or appertaining to said estate, and generally to do whatever the debtor might have done in the premises." This court, in Traders Bank v. Van Wagenen, 2 Wash. Feb. 1893.] Opinion of the Court-STILES, J. 172 (26 Pac. Rep. 253), passed upon the substance of this question as involved in the insolvency law of 1881, and unless the statute now in review has some materially different elements, we should be inclined to maintain the principles therein announced. But upon examination we find that the only material difference is that, under the old law, the proceeding was commenced by petition filed by the debtor under which an order was made vesting the debtor's property in an assignee appointed by the creditors, at a meeting called under the order of the court, while under the act of 1890, the deed of the assignor conveys his estate directly to the assignee, who has no power to proceed until he has filed his bond and inventory, and thus brought himself within the jurisdiction of the court. The ultimate result under each law is the equal distribution of the property of the debtor, and his discharge from his liabilities if his acts shall appear to have been uncolored by fraud. The declaration of the first section of the act, that no general assignment shall be valid unless made for the benefit of all creditors in proportion to the amount of their respective claims must be limited as we view the act to -First, Preferences; and, second, to the effect on the debtor brought about by the denial of his petition for discharge. If it were not so, every assignment which is made would be in continual jeopardy, so long as all property involved in it is undistributed, by the discovery of some fraudulent act perpetrated by the assignor before the assignment was made. Section 2650 provides that the debtor may be summoned upon the application of the assignee, or any creditor, to submit to an examination for the purpose of discovering whether or not all his property has been listed in the inventory, and "the court may compel the delivery to the assignee of any property or estate not embraced in the assignment." But, according to the theory of the respond Opinion of the Court-STILES, J. [5 Wash. ents, not only would the assignee be powerless to reclaim such property, but the very fact that the assignor had fraudulently placed such property out of his hands for the purpose of depriving creditors of the benefit of its distribution by the assignee would avoid the whole assignment and open the way to any creditor to prefer himself at the expense of the others. Even in Iowa, a case of this kind occurring in Schaller v. Wright, 70 Iowa, 667 (28 N. W. Rep. 460), the court held, notwithstanding Van Patten v. Burr, that the assignee could recover it. An illustration is contained in the body of the statute itself which, it seems to us, must overcome the claim of the respondents that the assignee could go no farther than the property actually conveyed to him, or that discovered under the assignor's control though not mentioned in the assignment. It is provided in § 2741 that such an assignment shall have the effect to discharge any and all attachments on which judgment shall not have been taken at the date of the assignment. Now, excepting for one ground of attachment, viz., non-residence, attachments in this state are granted only upon a showing of some fraud on the part of the debtor, the gist of which is, that he is disposing, or about to dispose, of property with intent to defraud his creditors. But if in a case where fraud is the basis of an attachment lien the assignee is permitted to step in and dissolve an attachment, and thus deprive innocent creditors of the involuntary lien which other portions of the law give them, there can be but small reason assigned why, in a case where the debtor has disposed of his property fraudulently by giving a voluntary lien, with possession, the assignee should not be permitted to retake that property. Upon consideration of § 2753, however, we think a better rule is laid down in Pillsbury v. Kingon, 33 N. J. Eq. 287, than is found in either of the cases cited by the Feb. 1893.] Opinion of the Court-STILES, J. respondents. That was a case like this, where an assignee was suing for the recovery of property mortgaged by his assignor to third persons in fraud of the assignment law. The court there reviews the whole subject of the rights of an assignor under statutes governing assignments for the benefit of creditors. The New Jersey statute bears the same title as ours, and the court, in reviewing the thirteenth section, which is the same as our § 2753, speaks as follows: "Considering that the assignment creates a trust for the benefit of all the creditors of the assignor, and that the legislative purpose was to secure an equal and just division of the estate of the debtor among his creditors, a construction less comprehensive will defeat the legislative purpose. In virtue of the trust so created the assignee becomes the representative of and actor for creditors, and his powers should be so construed as to enable him to carry into full effect the purpose which the statute designed. In the English insolvent acts, under which assignees are allowed to avoid the fraudulent grants and conveyances of the debtor, the power of the assignee to sue in his own name is granted 'for the recovery, obtaining and enforcing any estate, effects or rights of such prisoner' language, in legal effect, identical with that contained in the thirteenth section of our assignment act. In Garretson v. Brown, 2 Dutch. 425, Justice POTTS construed this section as enabling the assignee to sue for property fraudulently conveyed away by the debtor, and to recover it for the use of the creditors who should present their claims." The court then overrules Van Keuren v. McLaughlin, 21 N. J. Eq. 163, and sustains the right of the assignee to sue to avoid the fraudulent mortgage. The case above cited is a review of the same reported in 31 N. J. Eq. 619, where the vice chancellor laid down the opposite doctrine. These two overruled cases are both cited in the opinion of the court in Hahn v. Salmon, 20 Fed. Rep. 801, in support of the view adopted. The case of Benham v. Ham, decided by this court, ante, 43-5 WASH. On Petition for Re-hearing. [5 Wash. p. 128, is confidently cited by respondent Sabin in support of his attachment; but while some language was used in the opinion in that case which, taken alone, might be ground to infer that if the mortgage had not been sustained, the attaching creditor in that case would have been allowed to retain his lien upon the property in the hands of the assignee, the judgment there directed shows that the whole question of the attachment was avoided by the finding that the chattel mortgage was a bona fide transaction, and that there was, therefore, no ground for the allegations of fraud under which the attachment was issued. The subsequent case of Hamilton Brown Shoe Co. v. Adams, ante, p. 333, is more nearly in point, and it was therein held that the property reaching the hands of an assignee was in custodia legis, and could not be taken from him by the attaching creditor on the ground that the assignment was fraudulent by reason of acts committed by the assignor before the assignment. There can be no difference between that case and this so far as the rights of the assignee are concerned, although here the assignee had not been able to reduce the property assigned to his possession at the time the attachment was levied. He was entitled to its possession, and only needed the interference of the court in his behalf to secure it. It follows from the foregoing that the judgment of the court below must be reversed, and the cause remanded with directions to that court to enter judgment in favor of the appellant for the proceeds of the goods, to be distributed by him in accordance with the law governing assignments. DUNBAR, C. J., and ANDERS and HOYT, JJ., concur. ON PETITION FOR RE-HEARING. STILES, J.-Criticism is made of the opinion in this case because it is therein said that the Oregon statute contained |