Tilghman C. J.
In this .case there are two points for decision.
1. Is the deed of assignment from Joseph Bispham and wife to the plaintiffs, to be considered as fraudulent and void?
2. Does an action of trespass lie against the defendant, who was sheriff of the city and county of Philadelphia?
The trusts of the deed (by which Bispham conveyed his whole estate to the plaintiffs, and which was executed when his debts exceeded the amount of his property) were that the assignees should convert the estate into money, and divide the net proceeds amongst all the creditors of Bispham, who should within four months of the date of the deed, execute a general release of all demands against him, in an equal and rateable manner, according- to the amount of their respective- debts; and pay the overplus if.any to the said Bispham his executors or administrators.
After the decision in the case of Wilt and Franklin'at the last March term, it must be taken for granted that this deed would have been good, if the trust had been for the equal benefit of all the creditors; but the exclusion of all those who did not execute a release in four months, makes a striking difference in the present case. It is upon this exclusion principally, that the counsel for the defendant have founded their [181]*181argument. They contend that the debtor had no right to in-' sist on so unreasonable a condition; that at the time this debt ‘ •was contracted there was no bankrupt law in force, and the insolvent law would not have entitled him to a release, but would only have exempted his person from imprisonment; .besides, that no debtor ought to ask for a release, till his conduct has been thoroughly investigated, and his integrity made manifest; and that it is ill'policy to suffer any kind of conveyance which leads to the stifling of all inquiry. These observations have great weight as general principles. But the question is, how far are they applicable to the case before us? The assignment was executed on Saturday the 12th May, and acknowledged on Monday the 14th May. On the-same day, Monday, in the evening, a general meeting of the creditors was called. All but one or two met. The deed, which till then had remained in the hands of the debtor, was produced to them. They assented to it. The key of the store was immediately delivered to the assignees, who were thus put in possession of the goods. On the same night, after those proceedings, the guardians of the poor entered their judgment against Bispham, and took out an execution, by virtue of which, on the 15th May, the defendant levied on the goods in the possession of the plaintiffs. We perceive at once how different this case is from that of Burd v. Fitzimons, relied on by the defendant’s counsel, which turned on the validity of the assignment of Mr. MíClenachan. There the deed was executed on the 2d September, and no meeting of the creditors was called till the 15th December, above twenty days after the execution of Burd had been levied on the land which was the subject of dispute.
It has been conceded by the defendant’s counsel, that Bispham? s deed would have been good if the creditors had been consulted before its execution. Nay more, it has been conceded that if any of the creditors had given a release before the execution of the guardians of the poor was levied, such creditors would have been entitled to a preference. I confess I can see no good reason why the creditors should not be entitled to the benefit of the deed, from the time they agreed to accept it. It is objected that they were not bound by their agreement, and that a court of equity would not have compelled a specific execution of it. If the creditors had been in [182]*182any manner deceived, they would have been under no obli'gation to stand to the agreement. But if they were fairly informed of the debtor’s circumstances,and no imposition practised on them, it appears to me they were under a moral obligation to perform their part of the bargain. But the fact is that they never wished to retract; and on the 20th May, the release was executed. When they themselves then considered the contract as binding, and actually proceeded to execute it in a few days, why should a third person be permitted to say, that they should have no advantage of the assignment, because they were not bound by it? The case of Butler v. Rhodes, 1 Esp. Rep. 236, has a strong bearing on the present question. There, one of the creditors who had verbally agreed to a composition, in consequence of which his debtor had made an assignment of all his estate, was not permitted*to relinquish the composition, and support an action for his debt. There is strong reason why the law should be so. If a particular creditor could abandon the assignment, and resort to his action, he would gain an unfair advantage of the other creditors, who refrained from suits on the faith of an agreement in which all had concurred. These considerations induce me to be of opinion, that those creditors who assented to the assignment on the night of the 14th May, are entitled to the benefit of it from that time. There is no occasion to decide whether Others are entitled to the same benefit, because I understand that the debts of those who so assented, are more than sufficient to absorb the whole estate. I beg however to -be distinctly understood, that my opinion is confined to the circumstances of the present case; for there are many and strong objections to deeds of assignment, made without the privity of creditors, and excluding all who do not execute releases.
As to the second point, whether the sheriff is liable to an action of trespass, there is no difficulty. The case cited from Carth. 381. contains my Lord Holds opinion expressly on the point. He says that in writs of execution, the command of the writ being to levy on the goods of the defendant, the officer acts at his peril, and is liable to an action of trespass if he takes the goods of another person. The argument of the defendant’s counsel was founded on a supposition, that [183]*183nothing passed by the deed of assignment until the 20th May, when the creditors signed a release; and that the she-' riff ought not to be made a trespasser by relation. But the deed took effect at law immediately on its execution, and in equity at least from the night of the 14th May, when the creditors assented to it, and the key of the store was delivered to the assignees; and this was prior to the entering of the judgment of the guardians of the poor. My opinion is that judgment be entered for the plaintiffs.
Yeates J.
This case was tried at Nisi Prius in Philadelphia on the 1st March 1805, when a verdict was given for the plaintiffs for 1412 dollars 49 cents, the nett amount of the sheriff’s sales and interest, subject to the court’s opinion on certain points reserved. Those points were fully argued before the court in March 1805; but the members of the court having been equally divided, no judgment was given.
They have undergone another argument this term. The first point reserved on the trial was, whether under the circumstances of this case, the assignment of Joseph Bispham, dated 12th May 1804, ^ was valid, so as to vest the property in the assignees, or was defective, fraudulent and void?
The objections made to the assignment on the part of the defendant, have been much narrowed since the former argument. Some grounds were then insisted on, which the decision of a majority of this court in
It has been urged by the defendant’s counsel, that by reason of the proceeds being stipulated to be paid to the creditors who should within four months execute a general release of all demands against Bispham, the vesting of the property was suspended until the 20th May, on which day the creditors executed a formal release to him; that the goods were bound by delivery of the execution at the suit of the guardians of the poor upon' the judgment entered against Bispham on the second bond, a few minutes after 10 o’clock of the night of the 14th of May; and that under all the circumstances, the deed of trust was fraudulent and void, within the statute of 13 Eliz. c. 5. “ by delaying and hindering the “ creditors.”
In order to form a correct judgment on this part of the case, we must attend minutely to the facts and events as they occurred.
The assignment was executed by Bispham and his wife in the presence of witnesses, on Saturday the 12th May 1804, none of his creditors being present,, that we know of. Nothing happened on Sunday; but upon Monday the 14th May a general notice was given to all the creditors of Bispham, including the guardians of the poor and Robert Erwin his co-surety, to meet at an appointed place. It appeared that all his creditors attended in pursuance of the notice, except one or two at most; and that he then represented to them the situation of his affairs, and offered to them the assignment, which was acknowledged before the late Chief Justice Shippen; one if not both of the trustees, having previously agreed with him, to accept the intended trust. They all expressed their full consent to the terms proposed; and Bispham in pursuance thereof, delivered to the assignees the assignment and key of his store, the whole business having been transacted and completely closed, about 8 o’clock on the evening of that day. The possession of the goods was in the assignees, above two hours before the adverse writ of fieri facias was in the hands of the sheriff. I see no solid reason, why the equitable as well as legal interest in the goods in question, did not vest in the trustees, prior to the entry of the judgment and taking out the execution. The [185]*185creditors who generally met, were bound by their assent to the terms of the assignment, and could not retract therefrom on any legal, moral, or honourable principle. In Jolly et al. assignees of Norton v. Wallis (a), where a composition deed was entered into by an insolvent debtor, with a clause that if certain creditors did not sign the deed, it should be null and void, it was resolved, that if such creditors accepted of the composition, or the security for the composition, though they did not actually sign the instrument, it was nevertheless valid and good. Lord Kenyon there said, he should hold, that they acquiesced in the composition, and consented to come in under it, and that they should be bound thereby.
On the good faith of the creditors, the goods in the store were actually delivered to the trustees, as their agents, and •put beyond the power and control of Bispham. No future election was left to them, which could be resembled to Alderson et al. v. Temple (b). So far has this matter been carried, that an assignment by a trader, while resident in India, of all his effects, in trust for creditors in certain proportions, has been held not fraudulent and void in itself, being intended honestly at the time, and assented to by the generality of the creditors. Ingliss et al. v. Grant (c).
It has. been further urged, that this assignment, confining the distribution of the proceeds to such of the creditors as should execute a general release of all demands against the debtor within four months, was fraudulent, inasmuch as it prescribed hard and unreasonable terms, and was a species of coercion on the creditors. This matter was slightly touched, upon the first argument. But it is now said, that a man is under a moral obligation to do justice to his creditors when he has it in his power, notwithstanding any release; and that the insolvent law only liberating the person of the debtor from imprisonment, he has no right to an exemption of his future.property, though he surrenders up all his estate. We must be contented to take the world as we find it. I regret that we find such few instances of refined virtue, in the payment of debts. It will be remembered however, that we [186]*186are now inquiring whether the assignment on the face of it, or from extraneous circumstances, was a fraud on the interests of the creditors. They certainly were competent to judge of the proposals made to them, and should be bound by their own acts. Independently of the bankrupt laws, a debtor may (a) prefer one set of creditors to another, and such a measure would be neither illegal nor immoraL Contracts made during the existence of the bankrupt acts, must be supposed to' have in view their provisions. In the case before the court, the plain object disclosed in the deed, was to put all the creditors on one common footing, without predilection or prejudice to any one creditor. On this broad basis of perfect equality, rests the whole system of the bankrupt laws. The debtor here desires no further benefit or advantage from his assignment, than he would legally have been entitled to, if those laws had been in operation. Under the 36th section of the bankrupt law of the United States, passed 4th April 1800, (b) the bankrupt who has made a full discovery of his estáte and effects, and in all things conformed himself to the direction of the act, upon two thirds of the creditors in number and in value testifying their consent, is entitled to a certificate of discharge from the judge of the district, which liberates both his person and property from preexisting debts which might have been proved under the commission. The creditors here performed the functions of commissioners of bankrupt, and have closed with the proffered terms. The conclusion which I draw on the whole matter, that the assignment is valid under all the circumstances of the case so as to vest the property in the assignees, I trust, will not in any degree impair commercial credit, or fair dealing. Could I suppose, that such would be the probable pernicious consequences of my decision, I would pause a long time, before I could be induced to make up my mind on this occasion.
I deem it proper to express my sentiments on the other points reserved on the trial, although only the last point has been ins;sted upon in the last argument. Upon the second and third points, the former members of this court entertained the same opinion.
. The second point is, whether the execution of the guar[187]*187dians of the poor bound the goods from the teste, against this assignment? This depends on the true' construction of the act of 21st March 1772 (a). The 5th section thereof directs that “ no writ offieri facias, or other writ of execution, “ shall bind the property of the goods of the person, against “ whom such writ of execution is sued forth, but from the “ time that such writ shall be delivered to the sheriff &c. to “ be executed.” This is'copied verbatim from the 17th section of the British act of frauds and perjuries (b) 29 Car. 2., c. 31*. It is objected that this act, has always been confined to purchasers; and does not apply as between the parties, by the English decisions; and therefore considering this assignment, if valid, as a mere voluntary deed, the goods intended to be transferred thereby, will be bound by relation from the teste of the writ. But it will be remembered, that upon the third section of our law, copied from the 15th section of the same British statute,- which contains stronger words than that under consideration, this court were of opinion, in a case stated between foseph Welch and Archibald Murray in the term of March 1805, that as between mere judgment creditors, their respective judgments bound from the times of entry, and not from the last day of the preceding term. A case in Prec. Cha. 478 was then cited by the court, to warrant the practice which had uniformly prevailed in Pennsylvania. I do not say that judgment creditors are to be considered as purchasers. I well know that it has been determined otherwise both in England and here. But are not trustees, who claim under a deedxxpressly made.to secure the honest antecedent debts of fair creditors, though a small money consideration is inserted therein to make it more formal and effectual, better entitled to the appellation of purchasers? Can the present deed be correctly considered as merely voluntary? I cannot think that a fiction of law should invalidate the operation of such a deed.
The third point is, whether by our law of the 29th March 1803, section 7, (c) these goods were bound from the time of filing the bond? This must rest on the true meaning of that [188]*188law. It declares in what manner the bonds of the collectors shall be given and filed in the prothonotary’s office, and then proceeds to declare, that “ they shall be and operate from “ the time of filing the same, as a judgment or judgments “ upon the lands, tenements, goods, chattels and effects of the “ said collectors and their sureties, until the final settlement “ and discharge of the said collectors, for or on account of “ their duplicates.”
The effect of filing the bond is to make it equivalent to a judgment, as to its operation on lands and goods; but it goes no further. Now it is well known, that a judgment does not bind goods; until the delivery of an execution thereon to the sheriff; and consequently, the filing of the bond cannot outstrip the effect of a judgment. Should a different construction of this section be adopted, no man who is a collector of poor tax in the city, nor his sureties, could sell any part of their personal property, until the duplicate was finally discharged, without bringing the purchasers into jeopardy at a future da}7, which never could be the intention of the act.
The remaining point is whether trespass will lie by the plaintiffs against the sheriff, for taking the goods in execution at thé suit of the guardians of the poor. In my idea it depends upon the consideration, whether the trust was in legal operation, at the’time when the goods were levied upon. To subject asheriff to an action of trespass, the taking must be unlawful; and persons who act innocently at the time, are not made criminal by relation, and therefore are excused from beipg punishable as trespassers (a). If the sheriff seizes and sells the goods, before he has notice of an act of bankruptcy of the defendant, he is excused (b). If he sells them after such notice, though he may be sued in trover, he is not liable in trespass. But having satisfied my own mind, and declared my opinion, that the deed of assignment was valid to pass the property of the goods to the plaintiffs, previous to the .lien of the execution attaching, if I am correct on that head,, the consequence must be, that the taking was unlawful, and the present form of action maintainable.
[189]*189On the whole, I am of opinion with the plaintiffs- upon all the points reserved on the trial, and that judgment should be rendered for them in this suit.
Bracrenridge J.
Since the argument by counsel, I have cast my eye upon a case, Brady v. Shiel administratrix, tried at Nisi Prius before the Chief Justice of the Common Pleas iri England, and reported Campbell 147. The administratrix finding the effects of the deceased, her husband, insufficient to pay all his creditors fully, had called a meeting and proposed, a rateable distribution, to which they at first unanimously assented. A deed of assignment with covenants to sue &c., was accordingly prepared; but upon some dispute respecting who should be the trustees, the plaintiff refused to come in under it, though he declared he should give no further trouble. The deed was afterwards -executed by the administratrix, and all the creditors with the exception of the plaintiff. Under the deed, a ship, the only assets that had come to the hands of the administratrix, passed to trustees for the benefit of the trust. It was contended that the action could not be maintained,-after the administratrix, in consequence of the plaintiff’s assent, had parted with all the assets that were come to hand, and the other creditors had been induced to execute the deed, and accept of a composition. The Chief Justice seemed to think that this, if made out by ■ evidence, would be a defence. He wished .it were more generally known, for he believed that lawyers in the court of King’s Bench were not aware it, that through the medium of a court of equity, the creditors of a deceased insolvent may always be compelled to' take an equal distribution of assets. It was only for a friendly bill to be filed against the executor or administrator to account, after which the chancellor would enjoin any of the creditors from proceeding at law. In a note the reporter cites 4 East 10, where in answer to an observation from the bar, Lawrence Justice said, why may not a plea state that the testator was indebted to A. B. and C. in so much respectively, and that a judgment was acknowledged in trust to secure all their debts?
I will acknowledge I was not aware a court of chancery would have gone so far in England. But I presume it would only be where the debts were in equal degree, and had no [190]*190preference one over the other, and only in the case of a deceased insolvent, where the personal responsibility was gone, and the effects could not be increased or diminished by himself, that he would so compel. What would the chancellor do, or what plea would the law allow, where the insolvent himself, having in view an equal distribution, wishes to exclude a judgment from the unequal attachment of his effects? Admit that a debtor may prefer a particular creditor, may give him property in satisfaction of the debt; but the goods must not exceed the value of the debt, or must bear a reasonable proportion to the debt to be satisfied. The transfer also must be absolute, the delivery immediate. The continuance in possession is a badge of fraud.
Suppose an absent creditor whom the debtor wishes to prefer. The delivery of goods to a trustee for his use, must, I should think, be complete absolute and unconditional. Where the trust cannot but be for his benefit, and where it cannot but be, but that he will consent, his consent may be presumed. But if a condition is annexed, that he shall take the property transferred in full satisfaction of a debt, to which the property may not be equal, it does not necessarily follow that he will accept, and therefore the law cannot presume it, so as to couple even his subsequent assent with the delivery of the property. But if time is given until he returns and makes his mind known, is another creditor bound to wait the result? In what state is the property in the meantime, and how long may it remain in that state? Some of the creditors in the case before us, did previously agree to release, and some afterwards agreed; but all did not agree, more especially the judgment creditor. It could not be reasonably expected that he would agree. Under the trust in the case before us, the property delivered, as soon as reasonably convenient, is to be made into money, and the proceeds to be distributed; but yielding the surplus if any to the debtor himself. If it had been yielding the surplus if any to the trustees for the benefit of creditors who might come in under this commission, it might have removed one objection, which of itself I hold fatal. It may be said it is the same thing to the dissenting creditor, as he can levy on the surplus in the hands of the debtor, after it has been yielded to him. Could the sheriff return money levied? Is it to be pre[191]*191sumed that he would ever see it, much less that it would ever come to his hands? It would seem to me that if a dis-' position of effects under such circumstances as in the present caste was allowable, we would have cases more perfectly analogous from the English reports, than any that have yet been produced. It would seem to me that nothing so far has been attempted, and that it has been left to the astutia Americana of debtors, to devise such a warehousing of effects out of the hands of the law for a time, for the benefit of particular creditors. I think it to the let and hindrance of creditors, and that such disposition is void both at common law and by statute; though not fraudulent in fact in the particular case, yet fraudulent in law, and therefore void. It is not simply the surrender of his property as satisfaction pro rata of his debts, that the insolvent here has in view. He couples an interest for himself in obtaining a discharge from that proportion of the respective debts which may remain unsatisfied. It is taking an undue advantage of the situation of a creditor, to impose this condition. It is immoral to exact it. Volenti non Jit injuria if the creditor accepts, but it is making a volunteer by compulsion, and is in fact a robbery. One enlightened on the principles of moral honesty would never think of it. He would give what he had to one or more or to the whole of his creditors; but he would never think of annexing a condition precedent or subsequent to such surrender. Of such conditions a chancellor would not compel a fulfilment. I can think of nothing either morally honest or strictly legal, but the indefinite unconditional surrender of the property. Pass this boundary, and I can draw no line where an assignment shall be supported and where not. Every case must be ad arbitrium judiéis, without principle to guide; and he must decide according to his own feeling of what is humane, or hard and uncharitable, in the case.
As to the form of the action of trespass, I have no doubt but that it is supportable. But on the ground of the assignment being in my opinion not to be supported, I am of opinion that the judgment be for the defendant.
Judgment for plaintiffs.
1 Binn. 513. 518.