The assignment made by the principal defendant was executed February 26, 1851, and on the eleventh day of March following, he made an instrument under seal, in which he waived the release and discharge provided for him in relation to his debts by the assignment. It is contended that this instrument was a part of the assignment, and that the affidavit and notice required by the statute should have succeeded the making of it. But it was made several da}^ after the assignment was completed, was not intended to be a part of it, and it does not by its provisions purport to be so, but speaks of the assignment as a transaction already finished. It cannot be regarded in any other light than a collateral stipulation, to waive a benefit provided for the assignor in the deed of assignment.
The facts contained in the disclosure, by which the case must be decided, in connection with the documents referred to, do not show that any fraud was practised, or intended to be by that instrument.. It applies by its terms to all the creditors, who should become parties to the assignment. It is not a promise to a part, but to all of them. And it does not appear that the knowledge of it was concealed from any one. So far as can be perceived, its object was to induce all the creditors to come into the assignment. It is suggested that the purpose was to have a few only to become parties, so that after paying them, a balance would remain to the assignor. But no such conclusion can be drawn from the facts disclosed. And such balance would be subject to the claims of other creditors. No measures were taken to deter any one. All of the creditors were at liberty to become parties, and if they did, the assignor agreed to waive the release in favor of them.
If the instrument could be considered as giving a preference to some of the creditors to induce them to become parties, and should therefore be objectionable in reference to, *19others, who also became parties, it could not have the effect to defeat the assignment.
It does not appear but that the plaintiffs might have ascertained, that this instrument was in the hands of the assignee upon making inquiry, and what its provisions were, and they cannot justly complain, if they have met with any loss, by the want of due diligence.
If they have failed in obtaining a share of the property assigned, because as they allege, they were ignorant of this instrument, and supposed they should be bound to release the balance of their debt, the creditors, who have become parties, are not in any fault by acquiring the knowledge of a fact, whieh the plaintiffs did not ascertain, and which such creditors used no means to conceal. They ought not for this reason to be deprived of the benefit of the property holden for them by the trustee.
The exceptions are overruled.