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to give validity to the assignment, the jury 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 FRANKLIN. "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. (a) Other judges have adopted the same doctrine, and have said (b) “that in deciding "questions of this kind, the courts have always disavowed in

quiring, whether or not the consideration be equivalent; they "will not weigh it in very nice scales, if it be an honest trans"action." Very small considerations have been holden sufficient to give validity to a deed. Besides, the assignment expressed that 7s. 6d. was paid by the trustee. This is sufficient to raise an use under the statute; and though it is inserted in the special verdict, that no money was paid, it is clearly settled, (c) that there can be no averment against the consideration contained in a deed, so as to affect its binding force; and consequently it is not susceptible of proof.

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 party that takes, is implied in all conveyances, by intendment of law, till the contrary appears; and that this is as strong as the expression of the party. Stabit præsumptio donec probetur in contrarium. (d) This doctrine has been asserted by Ventris Justice, in his elaborate argument in the much disputed case of Thompson v. Leach, (e) which commenced in the common pleas, was afterwards carried by writ of error into the king's bench, (ƒ) and was finally determined in the house of lords, upon the reasons contained in the argument of Ventris; so that his opinion

(a) 1 Atk. 463, 4.

(b) 8 T. R. 529.

(d) 2 Ventr. 202.

(e) 2 Ventr. 198. 1 Show. 296. 3 Lev 284.

(c) Dyer. 90. Shep. Touch. 222, 3. (ƒ) 3 Mod. 296.

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finally prevailed. (a) In Meux 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 FRANKLIN." to several, without the imputation of fraud, confess a judg

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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 Bartholomew should "grant and assign the premises, or any part thereof with the appurtenances, to one or more (6 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 æquipa

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4. 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 FRANklin. 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 "above 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 cases 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,

(a) 1 St. Laws 690.

(b) 2 T. R. 594. 2 Bro. Cha. Ca. 650,`

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and until Monday morning, when the sheriff levied on them at the suit of Peter Berthon and son. On Tuesday the 6th, the assignment was sent on to Bartholomew, who accepted it on FRANKLIN. the next day; and on the same day Keely was imprisoned for

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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. McClenachan 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(b) 4 Dall. 76.

(a) 1 Burr, 484.

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serve, that I can find no positive rule of law, or commercial usage, which imperiously demands a schedule of creditors or WILT debtors, to confer validity on a general assignment. I can find no such precedent in the books, nor have any such occurred to FRANKLIN. 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.?

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 bona fide 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," &c. 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.

Every 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, แ judgment, &c. must be devised of malice, fraud, or the like, "to bring it within the statute." Were there then, in the words (a) Cowp. 434.