Upon this day the judges delivered their opinions.
Tilghman C. J.
These causes come before the court on a special verdict, found in the action in which Wilt is the plaintiff. In the action by Berthon and son, it is agreed, that it shall be decided on the facts found in the verdict in Wilds suit.
Two points were made by the counsel for the plaintiff. 1. That under the circumstances stated in the verdict, the deed from Matthias Keely to John Bartholomew is to be considered as fraudulent and void. 2. That supposing it to be good, it had no operation till the 7th of March, when it was first made known to Bartholomew, and received his assent.
In support of the first point, it was contended that the deed was void by the stat. 13 Eliz. c. 3., and by the principles of the common law; because it was made with an intent to defeat the action of Wilt, who had obtained a verdict against Keely the same day the deed was executed; because it was not attended with delivery of possession of the property conveyed; because it vested the management of Keely's whole estate in a trustee of his own choosing; because there was no schedule of the property; and because no money was paid by Bartholomew to Keely.
I will consider this subject under two points of view, which will include the different positions taken by the plaintiff’s counsel.
1. What was the intent of the parties?
2. In what manner has their intent been carried into effect?
1. As to Bartholomew the grantee, there is no intimation of his having entered into any improper collusion with Keely. He knew nothing of the deed till after its execution; and it does not appear that he was any way interested in it. The manifest intent of Keely was to prevent Wilt from obtaining any preference by his judgment, and to put all his creditors, without exception, on an equal footing. There appears to be nothing immoral or unfair in such intent. On the contrary, it is the object of well regulated societies, where commerce flourishes, .to obtain an equal division of the property of insolvent traders. [514]*514The statute of 13 Eliz. c. 5. (the provisions of which go no further than the common law as now understood) never had it in contemplation to invalidate a fair transaction. It was made to avoid fraudulent conveyances, intended for the purpose of defeating, hindering, or delaying creditors of their just debo. The parties to such conveyances were considered as criminal, and subject to a penalty, to be recovered by action of debt or information. The statute is declared to be made for the purpose of avoiding “ feigned, covinous, and fraudulent “ conveyances, bonds, suits, judgments, and executions, which “ were devised and contrived of malice, to the end, purpose, “ and intent, to delay, hinder, or defraud creditors and others “ of their just and lawful actions, suits, debts,” &c. &c. There is nothing in the statute to hinder a man from giving & preference to anji ci editor he pleases, before or even after an action brought against him. It was never supposed that it would pre- , vent an executor from preferring one creditor to any other of equal degree, by a voluntary confession of judgment, although the creditor, who brought the first suit, was thus entirely defeated. An executor indeed could not give a preference to a debt of an inferior nature; but that was because he would thereby be guilty of a devastavit: a reason which does not apply to the case of debtor and creditor who are both living. It was expressly. decided in Holbird v. Anderson, 5 D. & E. 235., that a debtor, being sued to judgment by one of his creditors, might, before the time when execution could be taken out, prefer another creditor by a voluntary confession of judgment, by virtue of which an execution was immediately sued out, and levied on the goods of the debtor. In Nunn and Ladbrook v. Wilsmore, 8 D. & E. 529, 530., lord Kenyon declares his opinion, that, “ putting the bankrupt laws out of the case, a il debtor may assign all his effects for the benefit of particular “ creditors.” Now, if preferences of this kind are lawful, much more so is an act which gives a preference to no creditor, but prevents any one from obtaining a preference, and puts all on an equal footing. It may be objected, that this case comes within the words of the statute, because Wilt has been hindered., delayed, and in part defeated, by this deed. It is true he has been delayed and partly defeated, but not in a fraudulent manner. We must give the statute a reasonable construction. Wilt would have been delayed and partly defeated, if, immediately [515]*515after the commencement of his suit, Keely had, with the consent of all his other creditors, executed a deed to trustees of the creditors’ own choice, for the purpose of disposing of his estate, and dividing the proceeds equally among them. But I imagine no one would contend that in such case the conveyance was not good.
For the reasons which I have given, and many others which might be given, I conclude that the intent of Keely, so far as it appears by the verdict, was fair and lawful.
2. Let us next consider the means by which he carried his purpose into effect. He executed a conveyance of all his property, without specifying it, to a trustee of his own choosing; with power to the said trustee to convey part, or the whole of the said property to another trustee or trustees, under the control and direction of his creditors. Keely and his wife immediately acknowledged the deed before a judge of the court of common pleas of Philadelphia county. This was on Saturday night. On Monday following he confessed judgment to Berthon and son, who immediately took out a fi. fa. and levied on his goods, still remaining in his possession. On Tuesday night the deed was given by Keely to a messenger, to be carried next morning to Bartholomew, who lived twenty-three miles off; and on Wednesday it was delivered to Bartholomeiv, who then for the first time was made acquainted with it, and who consented to act as trustee.
By the execution of the deed, Keely irrevocably parted with all power over his estate. And it is to be remarked, that the transaction was not secret. The judge who took the acknowledgment must have been privy to the contents of the deed, because the law required him to make the contents known to Mrs. Keely when he took her acknowledgment.
As the counsel for the plaintiff relied a good deal on the case of Burd v. Fitzsimmons &c., decided in the high court of errors and appeals in this state, in support of some of their objections, under the head which I am now considering, I think it proper to mention that the point, decided there, is very little to the present purpose, because the two cases are essentially different. In that case a time was fixed, within which the creditors were required to give their assent to all the conditions of the deed. The shares, of those who did not express their assent, were to be paid over to Mr. M'Clenachan, the person [516]*516who made the conveyance, and who was notoriously insolvent; an<^ there was reason to suppose that it would have been almost impossible for the whole of the creditors to receive notice of the deed, and signify their assent within the limited time. The authority of that case goes no farther than the main point decided. As to the reasons on which the different judges founded their opinions, they were various.
I will now consider the particular objections urged by the plaintiff’s counsel in the case before us.
1- The trustee was chosen by the debtor himself.
Although it is most prudent and proper to consult the creditors, as to the choice of a trustee, when it can be done without great inconvenience, yet where there is no bankrupt law existing, (which is our present situation) I know of no law which forbids the debtor to make the choice himself. There is no occasion now to decide, whether, under certain circumstances, the choice made by the debtor would not be conclusive proof of fraud; as where the trustee should be an intimate friend or near relation of the debtor, desperate in his fortune, and of notoriously bad character. No imputation whatever is thrown on the trustee here; and it is of some weight that the deed contained an opening for a choice to be made by the creditors, which in fact afterwards took place. It is to be remarked too, that had Keely waited to consult his creditors after Wilt obtained his verdict, the judgment would have been entered, and the preference of Wilt, as to the real estate, been established. Under the bankrupt system in England, an attempt by an insolvent trader to throw the management of his affairs into the hands of a trustee of his own choice, is in direct violation of the whole spirit and system of the laws, and therefore amounts in itself to an act of bankruptcy. Many cases of that kind were cited; but they are inapplicable, being founded wholly on the English statute law.
2. As to the want of a schedule. It is very desirable that conveyances of property should be accompanied with schedules. They are a great convenience to creditors, and a check upon fraud in the debtor. But they are more necessary, where part of a man’s property is conveyed to particular creditors, than, where the whole is conveyed for the benefit of all; and I am sa- ■ tisfied that many conveyances of the latter description have been made without schedules, and proved very beneficial to the [517]*517creditors. The want of a schedule is a circumstance proper to -be taken into consideration; but I cannot think that it is, in itself, conclusive evidence of fraud.
3. The next objection is the nondelivery of possession; this applies only to the goods. I agree, that in general, the continuance of possession in the grantor is one of the strongest marks of fraud, especially if such possession continues a considerable length of time. I agree too, that in many cases possession has been adjudged to make a conveyance fraudulent, where no actualfraud, no criminal intent, was supposed to exist. Although the statute 13 Eliz., as I mentioned before, is bottomed on the supposition of an immoral intention, yet it has been judged necessary to determine, that certain circumstances, which, in their nature, tend to deceive and injure creditors, shall be considered as sufficient evidence of fraud. Such was Txvyne’s case, (the leading case on possession) where the creditor, to whom a general conveyance of the debtor's -whole property■ was made, in satisfaction of a just debt amounting to more than the whole property, suffered the debtor to retain the possession, to use the property as his own, to dispose of what he pleased of it, and to' put his oxvn mark on the sheep. There is no searching the heart of man; but a possession of this kind tends so directly to deceive the world, that it was fair to conclude, that the conveyance in Txvyne’s case was attended with some secret trust for the benefit of the debtor. Possession is not always in itself conclusive evidence of fraud, but is open to explanation. In the case before us, the deed was executed late on Saturday night. Sunday is not a day of business. The trustee lived twenty three miles off. On Monday the goods of the debtor were levied on by Berthon and son. Being in custody of the law, the necessity of a delivery to the trustee was less urgent. Indeed I do not see how a delivery could then have been made. All that could be done, was to inform the trustee what the goods were; and that they had been taken in execution. Under these circumstances, I think the nondelivery of possession is sufficiently accounted for.
4. The last objection, to the validity of the deed, is that no money was paid by the grantee. I do not think this objection can be supported. The bargainee undertakes to pay the whole proceeds of the estate to the creditors of the bargainor, for his benefit. But independent of that, as the objection is merely [518]*518technical, and applies only to the form o'f conveyance, it is answere<i by the opinion of Anderson Justice, in Smith v. Lane, 1 Leon. 170, and of the whole court in Fisher v. Smith, Moor. 569, that if a consideration of money is expressed in a deed of bargain and sale, there shall be no averment or evidence received to the contrary. I adopt this principle so far as to support the formal part of the conveyance; to go farther is not necessary.
Having thus considered the principal objections to the deed, my opinion on the whole is, that it is valid. It only remains to determine at what time it took effect; whether on its execution, or on the Wednesday following, when the assent of the grantee was expressly given.
This does not appear to me to be a point of much difficulty. The plaintiff’s coupsel concede, that where the deed is for the benefit of the grantee, it is reasonable that his assent should be presumed. They were right in this concession. I think it reasonable to make the same presumption, where the grantee is required by the deed to do an act useful to his neighbour, and not injurious to himself. This presumption is liable to be rebutted by shewing an express dissent. A man cannot be forced to accept a conveyance against his will. But, in the present instance, the presumption is confirmed by the assent of the grantee, the moment he was informed of the conveyance. I am therefore of opinion that it took effect from the execution on Saturday night; of course it is not subject to the lien of the judgment of the plaintiff Wilt.
Upon the whole of the special verdict; my opinion is in favour of the defendant.
Ye ates J.
If the assignment made by Matthias Keely to John Bartholomew, in trust for all his creditors, “ in just and “ equal proportions according to their respective demands, “ without any preference or advantage to one more than “ another,” can be sustained at law, to take effect from its date, the necessary consequence will be, that judgment must be entered for the defendant; because the assignment is prior in point of date to the judgments under which the plaintiffs severally claim. But the assignment is attempted to be impeached on several grounds, which I shall separately consider.
1. It has been objected, that there is no good consideration [519]*519to give validity to the assignment, thejury having found that no money was paid by the trustee to Keely. The instrument recites that “ Keely owed and was justly indebted unto divers persons “ in divers sums of money, but, being incapable to pay off and “ discharge the same to their full amount, was nevertheless de- “ sirous, so far as lay in his power, that they should be satisfied “ in just and rateable proportions, according to their respective “ demands;” and that in consideration as well of the premises, as of 7s. 6d. in hand paid by the said J. B. the receipt whereof was thereby acknowledged, did grant, &c. In reason and sound sense, money, honestly due from the party assigning, is equivalent to money paid down; and we have lord Hardwicke’s authority that it is a good consideration,
2. It has been urged that the assignment took no effect until the 7th March, when Bartholomew assented thereto, and therefore the judgments, entered on the 5th March, have their full operation. To this it is answered, that the assent, of the pax-ty that takes, is implied in all conveyances, by intendment of law, till the contraxy appears; and that this is as strong as the expression of thé party. Stabit prcesumptio donee probetur in contrarium. (d) This doctrine has been asserted by Ventris Justice, in his elaborate ai’gumentin the much disputed case of Thompson v. Leach, (e) which commenced in the common pleas, was afterwards earned by writ of error into the king’s bench, (f) and was finally determined in the house of lords, upon the reasons contained in the argument of Ventris; so that his opinion [520]*520finally prevailed, (a) In Meuse and others qui tam v. Howell and Atlee. (b) Lawrence J. asks the plaintiffs’ counsel these question's during their argument: “ May not a person indebted a several, without the imputation of fraud, confess a judg- “ ment to a trustee, to enable him to take all his property for “ the benefit of all his creditors equally? Does not a court of “ equity act upon the same principle, in the distribution of “ assets? And why should there be a previous consent of the “ cestui que trusts, if they consent afterwards?” The fact moreover is, that here was an acceptance of the trust, in a reasonable time after it was created. The trustee lived twenty three miles from Keely. The assignment was executed on Saturday night of the 3d March, at 10 o’clock. On Monday the 5th, the goods and furniture were levied on by the sheriff at the suit of Peter Berthon and son. On Wednesday the 7th, Bartholomew accepted the trust; and on the 10th, pursuant to a provision contained in the deed, he assigned the same to Thomas Allibone and Caleb North, who had been elected by the creditors. On legal principles therefore, the acceptance will refer back to the execution of the deed, and form one transaction, done at the same time.
3. It is objected that Bartholomew was no creditor, nor elected by the creditors in general to take the assignment. I do not see how his not being a creditor can detract from the validity of the instrument. If, indeed, the assignee had been insolvent, or was incompetent to the execution of the trust, it would afford strong evidence of meditated fraud; but neither of these facts is found by the special verdict; and they cannot be presumed. Besides, this assignment contained a proviso, that Bartholomezv should “ grant and assign the premises, or “ any part thereof with the appurtenances, to one or more “ trustees, under the control and direction of the creditors.” And it is found by the special verdict, that in pursuance thereof, the said John Bartholomew assigned the premises to Thomas Allibone and Caleb North, on the 10th March following, who had been authorized by a meeting of the creditors to take the said assignment. This brings the case within the law maxim, omnis ratihabitio retro trahitur et mandato cequiparatur.
[521]*5214. It has been insisted that no time has been limited, within which the execution of the trust should be completed, The words of the assignment, as to this point, are, “ that the “trustee shall forthwith take possession and seisin of the “ premises, and within such convenient time, as to him shall “ seem meet, by public or private sale, for the best price that “ can be procured, convert all and singular the estate, real, “ personal, and mixed into money; and shall, as soon as possi- “ ble, collect all and singular the debts and sums of money “ ábove assigned, and, after deducting the costs and charges “ of the trust, shall pay and apply all the moneys arising “ therefrom,” &c. The force of the objection is greatly taken off, by the provisions of the act of 22d January 1774. (a) The commissioners appointed by the courts of common pleas, have sufficient powers to oblige the trustees and assignees of insolvent debtors to execute their trusts, and can prevent all unreasonable delays. Where the estate of a person, who has failed in trade, is scattered and dispersed in different places, it is next to an impossibility to fix a period of time, within which all his accounts can reasonably be expected to be adjusted; and in the cases of debtors discharged under the insolvent acts, no period is ever fixed, within which the assignees shall close their trusts.
5. It has been further insisted, that the goods of Keely, and his real estate with the title deeds, did not pass into the hands of the assignee; and that the debtor’s continuance in possession is a mark of trust if not of fraud. I agree the general rule to be, that in the transfer of chattels, (b) unless possession accompanies and follows an absolute deed, it is fraudulent and void as to creditors; and that the vendor’s continuing in possession is inconsistent with such deed. Yet there are cas.es where, though possession was not delivered at the time, the conveyance was not held to be fraudulent. To form a correct judgment on this head, we must distinctly mark the different events, as they occurred in order of time. On the 3d March, the assignment was executed and acknowledged between 9 and 10 o’clock at night, Bartholomew not being present. This was on Saturday. The goods and furniture of Keely remained in his possession the residue of that night, [522]*522and until Monday morning, when the sheriff levied on them at SU^ P^er Berthon and son. On Tuesday the 6th, the assignment was sent on to Bartholomew, who accepted it on the next day; and on the same day Keely was imprisoned for debt. On the 10th March, Bartholomew assigned to North and Allibone, in pursuance of the requisition of the general creditors. An execution in the house would prevent the assignee from taking possession of any part of the property on Monday; and it would be straining matters very hard to suppose that Keely obtained any false credit by the goods and furniture continuing in the house as usual, the small remnant of Saturday, and the whole of Sunday. It is not found that he either bought or sold, or in any manner dealed during that interval; nor that the title deeds of his real estate were fraudulently withheld from his assignee. It has been resolved, that not taking possession is only evidence of fraud, (a) and, like other equivocal facts, may be explained by circumstances. As to the title deeds being retained by Keely, this circumstance would not have the same effect here, as possibly it might in England, where they have no general statute for the registry of deeds; and it has been determined at nisi prius at Reading in May 1792, between Evans, executor of Evans, v. Jones ux. administrator of Nicholas, that it was not necessary that mortgagees should have possession of the title papers.
6. Lastly, it has been objected, that no schedule accompanied the assignment. Much stress has been placed on the decision of the case of Burd, plaintiff in error, v. Fitzsimmons et al. in the high court of errors and appeals. (b) As I understand that case, the majority of the judges determined the assignment of Mr. M'Clenachan to be invalid on several grounds, but chiefly, as I apprehend, on this, that under the terms of the deed, a trust resulted to the debtor himself, for the proportions of all such creditors, as should not agree in writing to accept thereof, within the period of nine months from the date. The creditors were widely dispersed, many of them were beyond sea, and the assignees were not provided with the means of executing the trust reposed in them. It is true, two of my brothers were of opinion, that there should have been a schedule annexed, designating the creditors, or explanatory of the debts and property. But with all due deference, I would ob[523]*523serve, thatlcanfmd.no positive rule of law, or commercial usage, which imperiously demands a schedule of creditors or debtors, to confer validity on a general assignment. I can find no such precedent in the books, nor have any such occurred to me while at the bar or on the bench. I admit, that such a list may contribute to facilitate the labours of the assignees; but the question now is, whether it be essentially necessary. If the books of the debtor have been well kept, they would afford much better sources of information, than any schedule; if ill kept, no man of extensive dealings can possibly know the true state of his accounts with individuals. In most cases the demands of creditors on the spot can be ascertained by convening them together.
It cannot be denied, that this assignment was made for the express purpose of preventing a preference to the plaintiffs in these suits; or, in other phrase, of putting the creditors in general on one common footing, without any kind of priority. That this was an immoral act, will not be asserted. Was it then illegal, and prohibited by the words and spirit of the stat. 13 Eliz. c. 5.1
That act, as well as the stat. 27 Eliz. c. 4. is in affirmance of the common law, whose principles and rules, as they are now universally known and understood, would, according to lord Mansfield., (a) have attained every end proposed by those statutes. The question in every case is, whether the act done is a bonafide transaction; or whether it is a trick and contrivance to defeat creditors. The plaintiff’s counsel have urged that this assignment was made, “ to the end, purpose, and intent to de- “ lay, hinder, or defraud creditors and others of their just and “ lawful actions,” §cc. But lord C. J. Ellenborough has declared in Meux, qui tam, v. Howell, “ that it is not every feoffment, “ judgment, &c. which will have the effect of delaying, or hin- “ dering creditors of their debts, that is therefore fraudulent “ within the statute. For such is the effect pro tanto of every “ assignment, that can be made by one who has creditors. “ Eveiy assignment of a man’s property, however good and “ honest the consideration, must diminish the fund out of which “ satisfaction is to be made to his creditors. But the feoffment, “ judgment, &c. must be devised of malice, fraud, or the like, “ to bring it within the statute.” Were there then, in the words [524]*524of the statute, “ malice, fraud, covin, collusion, or guile,” in the present instance, “ to the intent to delay, hinder, or defraud “ creditors, not only to the let or hindrance of the due course ancj. execution of law and justice, but also to the overthrow “ of all true and plain dealing?” The trust is in express words, “ for the use of all the creditors,' in just and equal proportions, “ according to their respective demands, without any preference or advantage to one more than another.” In every civilized country in Europe, it has been anxiously attempted to effect an equal distribution of the property of insolvent persons. In Great Britain, it is said by lord Mansfield, (a) that the whole bankrupt law has two main objects in view, to wit, the management of the bankrupt’s estate, and an equal distribution among his creditors. Such was the spirit of the system of bankruptcy of the United States, under their act of April 1800; and such was the spirit of the laws of this state, passed anterior to the adoption of the constitution of the United States. I cannot bring myself to believe, that a conformity to such laws can be denominated either an actual or legal fraud, and shall conclude with the strong expressions of Grose J., in Meux v. Howell, before cited: “ Here there is nothing like a fraud; and it “ makes one shudder to think, that persons, who appear, like “ the defendant, to have acted most honestly, should have been “ in any hazard of being subjected to punishment, for having, “ endeavoured to procure an equal distribution of his property “ amongst all his creditors.”
My opinion is, that judgment should be entered for the defendant, in both suits.
Brackenridge J.
The first thing that strikes me in this case, is, that it was not until the last moment, that the debt- or thought of making an arrangement for the distribution of his property, with a view to a pro rata payment of his debts. It was not until after a verdict on which judgment was about to be entered, and execution to issue. It may be said that the verdict was unexpected, and that there may have been a defence in fact, to the action, though he had not been able to make it out. But we find that he confesses judgment in another case, to which he had set up a defence, and which lessens the presumption that he honestly thought in this case [525]*525that he had a defence; for it proves that he was not incapable of contesting, or at least delaying the payment of a just debt. Now, if the only motive had been the payment of his debts, it would have looked better to have begun sooner. As the case is, it has the appearance of being driven to it, and a suspicion arises of a contrivance to save something for himself.
The second thing that strikes me, is, that the trustee selected is not an indifferent person; but one who acknowledged in the words of the case stated, “ that he was a friend of the family, and was willing to oblige him (the debtor) in this respect; that he was very willing to serve, but that his illness would, prevent him from coming to the city.” Was there no creditor at hand, who could have been consulted in the constituting a trustee? Or was there no indifferent person who could have been prevailed upon to be made a trustee? One near at hand, into whose possession the property could have been delivered for the use of the creditors. As the case is, there is no substantial difference from the debtor being his own trustee, and having it in his power to do what he pleased with the property*
it is to be remarked, that the creditors are in the power of the debtor, with respect to the debts due; and might he not say to a particular creditor, how much do I owe thee? 500 dollars. Take thy bill and write down 1000 dollars. Is there no danger of such unjust stewardship, where a person is about to be insolvent; and where the liquidation of the debts, is with a trustee of his own nomination?
The third thing that strikes me is, the not delivering a schedule or list of the property, which is the next thing to the delivering possession of the property itself; and which might be done, where the property, itself could not be delivered; books, papers, &c. An inventory of the property is the next best thing to the possession of the property itself. If the debtor had made a sale directly to any one, for a valuable consideration, would he not be likely to give possession? Would it not be a badge of fraud if he did not? Where that could not be done, would we not expect that he would come as near it as possible, by delivering :an inventory of the property transferred? Where the possession is not changed, the property remains in the power of the. debtor, and may be disposed of by him. Btjt an inventory may be a check upon the embezzlement.
[526]*526I do not say that because every thing waS not done, that might have been done, the assignment is void; but the leaving any thing undone, is so far a defect in excluding the presumpthat the debtor has consulted his own interest in making the arrangement; because he has not put it out of his power to have an interest, from an understanding with the trustee, or particular creditors.
It will be said the exigency was pressing in this case; and that it ought to be a sufficient answer, that the time did not serve to call the creditors together, and make an assignment, and deliver the property to them; or to get a trustee of their nomination, and to deliver ;the property to him- for their use; orto make out a schedule of debts and credits, or an inventory of the effects, and to deliver this to the creditors or trustee: that it was impracticable before the judgment would have been alien, and the execution attached, and the estate taken by particular creditors: that equality is equity: that it was the part of an honest debtor to endeavour to provide for a pro rata distribution of his property; and that having done all that could be done, in the short space of time he had to act, it ought to be supported. But I think it of equal, or of more importance, that no opportunity be given to a debtor to arrange for himself at the expense of his creditors; and which opportunity he will have, if such a disposition can be supported. We shall have instances enough of this kind of last will and testament of a debtor about to be insolvent. If it is meant to provide for the payment of debts honestly, and to let the whole go to that purpose, why begin so late? Why not sooner look out, and make distribution? -Insolvency in itself carries xvithit the presumption of dishonesty; for it is oftener the result of imprudence, than of misfortune; and I cannot call the man who makes use of the property of others, even imprudently, a perfectly honest man; and the man, who runs in debt, makes use of the property of others. The scripture tells us, that “ he who maketh haste to be rich; shall not be innocent;” and it is usually such as make haste to be rich, that run in debt, and become insolvent. I believe I might say, with great safety, that they are seldom innocent. The law treats the man who is about to take the benefit of the insolvent act, as a person somewhat to be suspected; he is examined on oath, and undergoes a purgation. We lay hold of his conscience, and superadd the fear of a prosecution for pel[527]*527jury, to the sense of moral obligation. We are far from leaving the disclosure to a simple declaration. The presumption is, that it is his purpose to defraud; and hence notice to creditors, and the privilege of crossexaminiug in open court, in order to satisfy all concerned with respect to the fairness of the surrender, and account of property.
Where the debtor undertakes to make an equal provision for the payment of his debts, and professes good motives, he presents himself with a better appearance somewhat; nevertheless, we are justified in distrusting his motives.
I think it reasonable to require of him every thing that will rebut the presumption of an interest for himself.
It may be, that the oldest creditor has not sued first, or first recovered judgment. But the presumption is, that the patience of the oldest creditor has been first exhausted, and that he has sued first; and on the principles of natural justice, the oldest debt should be first paid, The law cannot carry the administration of justice to such extent, as to take notice of the oldest debt. It could not be conveniently practicable. But it will take notice of the suit first instituted; and the maxim will apply,; prior in tempore potior in jure. In cases where the order of paying debts is left to the law, it will give a preference to a judgment; and between judgments themselves, it will respect the priority. Here the debtor has undertaken to cut out judgments, and to put them on a footing with other debts. It is true, he may have thought some of them of more meritorious consideration; but with me the more natural presumption is, that he was irritated at the process that had been instituted, and the recovery against him; and that, for that reason, he wished to defeat the recovery, and give it no other advantage than other creditors had; which I think unfair, having put them to the expense and delay of legal proceedings. And though the conclusion may not be inevitable, that he was combining an interest for himself, or that it was the dominant and ruling motive, yet I cannot see but that he had it in his power to conceal, and save property for his own use, where the trustee was of his own nomination, and where a number of the creditors were rendered favourable by the race made to get ahead of the judgment and the execution, and to put them, all on a footing.
[528]*528It has been said, that fraud is not to be presumed; it must be proved. But this is proving it by circumstantial evidence. Fraud, in most cases, is but a conclusion from circumstances; and circumstances are but presumptive proof; and therefore it is not the meaning of the maxim, that presumption shall not arise from circumstances.
But it has been argued also, that fraud not being found by the jury, the presumption cannot be weighed and the conclusion drawn by the court. But on a special vei-dict the conclusion must be drawn by the court; for it is the nature of the special verdict, that it be left to the court to infer from the facts what the jury might have done had they taken upon themselves to infer, and give a general verdict, which contains the conclusion of fact from the evidence, and the conclusion of law from the fact. The jury, in this case, have found the facts from the evidence; and, as in the case of every other special ■verdict, it remains with the court to draw the conclusion of fraud, whether it be a conclusion of fact, or of law. Doubtless the conclusion of fact must be in the minds of the court, before they can draw the conclusion of law.
Under the circumstances of this case, if I am to draw the conclusion, it will be, that the debtor had an interest in the arrangement; but, even supposing that he had not, the disposition in the hands of a trustee of his own nomination, and the property remaining with himself for a time, and no inventory of the effects in the hands of a creditor, leave it in his power to make use of the property after the assignment, and before it comes to the hands of the trustee; and, for this reason, I must think such disposition against good policy, and not to be supported. I think it better, that a judgment creditor should take the whole, or the greater part, of a debtor’s property, than that a door to fraud should be opened by sanctioning such a disposition. The truth is, I do not much like the idea of cutting out the judgment creditor, and taking the disposition out of the hands of the law, when it is just about to take the property. A sense of wrong arises in my mind. I think it unfair; the heart revolts; and the only difficulty with me is, to analyse and give good reasons for feelings which I think must be just.
But it is not necessary, in this case, to draw the conclusion of fraudulent intention, or of legal fraud, so as to avoid [529]*529the deed: that is, to render it absolutely void as between the parties. It will be sufficient if it can be avoided, or rendered voidable, with regard to those who do not become parties; and the operation restrained in the case before us, short of affecting the lien of the execution. I will admit that a debt is a valuable consideration, and will support a conveyance as much as money paid at the time of the conveyance; for it must be considered as a consideration past. But the law will not presume an acceptance by the creditor, as in the case of money paid, or where the grant is a gift. Because it does not necessarily follow, that it will be for the benefit of the creditor, or that he would think it for his benefit; and it is upon this ground alone, that the law will presume a subsequent assent. This may be collected, in particular, from the argument 2 Ventri's 198. where the case was a grant on a consideration good, not valuáble, and the estate a gift. But it does not follow, with moral certainty, that a creditor will take property for his debt, or wait the sale of property, under the management of a trustee not of his own nomination. Money is what he had a right to expect; and it may be, that he will insist upon money paid imw mediately, or to be collected by the process of the law. Even taking it for granted, that the debtor is about to be insolvent, and unable to discharge the whole of his demands against him, it does not necessarily follow that he will take property, or wait the sale of it; for the debt is still recoverable from the future effects. But where the property conveyed is not supposed to be an equivalent, or will not satisfy the debt of every creditor, and a pro rata payment only, can be contemplated, it is not an intendment of law that the creditor will accept. It may be very probable that he will accept; but it cannot be legally inferred. The law will not imply it, as in a case where the grant cannot but be for his benefit. But supposing a presumption of law to arise that the creditors, other than the judgment creditors, will accept, there can be no presumption that the judgment «editors will accept, who have it in their power to take the property immediately under executions. For these reasons, the subsequent assent of the creditors, expressly given, will be necessary to complete the transfer in this case; and the assignment can have no operation until that assent is given.
But let it be supposed that in the case of a conveyance immediately to the creditors, an assent to take may be presumed, [530]*530the assignment is not immediately to the creditors; a medium *s use<^’ a trustee? and there is no consideration of the trust to the trustee himself. It is not accompanied with any benefit to for any benefit that is pretended is that of the debtor. There is no presumption of law that he will undertake the trust. It is on this ground that the principle must rest, that where the trustee has no benefit, it is not to be taken for granted that he will accept. The law to this effect is suggested in a late publication, Roberts on Fraudulent Conveyances, 430. “ A general convey- “ anee or assignment to a stranger, in trust to pay the debts of “ the person conveying, is clearly not a consideration sufficient “ even to raise a use upon a covenant .to stand seised. Nor will “ it suffice to support an actionable promise; for in such case no “ consideration moved from the promisee of advantage to the “ party promising.” It is clear, therefore, that the assent of the trustee is necessary to undertake the trust, before he becomes a trustee, and an interest can vest for the cestui que trust. Until that is done, there is no conductor of the interest; it remains with the owner of the property. Non constat that the trustee named will undertake the trust. Although there is an act of assembly, 1 St. L. 690., which provides for the calling trustees to account, yet it makes no provision for the compelling any one to be a trustee. It cannot therefore be taken for granted that a trust exists; and that a delivery to one of the deed of assignment to be delivered to the trustee, renders the delivery complete for the use of the creditors. The property.remains in the debtor, and is liable to be taken for his debts, unless by relation the subsequent assent of the trustee can be coupled with the assignment in the first instance, so as to operate from the date. This, as between the parties who subsequently assent, there can be no doubt, will be the effect; for it is consonant to justice, and to reason, that it should be so. It is a matter between themselves; and the inchoate, or inceptive, and concluding act make but one. It is all the same transaction. It is in support of the intention of the parties, that the instrument should operate from the date. But relation is a fiction; and, in jictione juris semper subsistit equitas. Relation shall do no wrong to strangers. 2 Ventris 119. There are many authorities in the books to this effect. But if there were not, it is such a principle of reason and common sense, that it could not be doubted. If at the date of the conveyance the property is not absolutely out of [531]*531the debtor, but the operation suspended until the subsequent agreement of him who is to take, that suspension cannot intercept the act of the law which attaches the property. I therefore' take it, that the assignment in this case did not take place of the execution.
Judgment for defendant.
1 Atk. 463, 4.