1809. WILT V. the 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 FRANKLIN, 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 Ventris 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 im 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 creditors 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, 1809. WILT v. 66 the assignment is not immediately to the creditors; a medium is used; a trustee; and there is no consideration of the trust to the trustee himself. It is not accompanied with any benefit to FRANKLIN. him; 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 conveyance or assignment to a stranger, in trust to pay the debts of "the person conveying, is clearly not a consideration sufficient 66 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 fictione 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 1809. WILT the 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 FRANKLIN. the execution. Judgment for defendant. υ. MURRAY and another, Executors of MILLER, IN ERROR. Saturday, The commander of a in an action to reduce the RROR to the common pleas of Philadelphia county. Wilson, the plaintiff below, brought an action for money public armed had and received by Miller to his use. Miller was prize agent vessel which for the Enterprise, a public vessel of war, and received the has captured a prize, is a proceeds of a prize captured by her while Wilson was on board. good witness The question was as to the capacity in which the plaintiff was by a seaman entitled. To prove that he was entitled as a sailmaker, his against the counsel offered in evidence the following certificate under the prize agent, seal of the navy department. "Accountant's office, January plaintiff's "1st, 1802: I do hereby certify that it appears by the rolls of share of prize money. "the schooner Enterprise, filed in this office, that William Wil- Quære. son was sailmaker on board, from the 6th July 1800, to the certificate by "5th March 1801. Tho. Turner, accountant." This evidence the accountant of the was objected to; but it was admitted by the court. The defendnavy departant then offered in evidence the deposition of captain Shaw, the ment, under commander of the Enterprise at the time the prize was made, that departto prove that the plaintiff was not a sailmaker but a common ment, is eviseaman, to which the plaintiff's counsel objected, because captain Shaw, as commander of the schooner, was interested in the decision of the cause; and the evidence was accordingly overruled by the court, who sealed a bill of exceptions upon both points. Chauncey for the plaintiffs in error. The certificate was not evidence. A sailmaker is a warrant officer, appointed by the president, 4 U. S. Laws 13. 96. 158; and it is an unyielding Whether a the seal of dence. V. 1809. rule, that where a right is established by a specific authority, MURRAY the authority must be produced. It is the best evidence. An attorney must produce the roll, a judge his commission; and so WILSON. a sailmaker his warrant. Tillard v. Shebbeare (a), Foster v. Cale (b), 2 Roll. Ab. 574. But the certificate merely states that it appears by the rolls: which will not answer, for the court must make its own conclusions. The least that can be offered is either a sworn or office copy of the roll itself. Bull. N. P. 226. The accountant has no authority to give such a certificate, because he has not the custody of the seal. The secretary of the department should certify. 4 U. S. Laws 233. 470. As to the interest of captain Shaw, as commander, it will not bear an argument. He is entitled to three twentieths, if he was acting independently, and two if his vessel was one of a squadron or fleet, which is a certain proportion. 5 U. S. Laws 124. Meredith for defendant in error. The warrant might be required between the party and the United States, but not between him and his agent. The officers keep their warrants with them upon service, and the agent receives by the roll, and therefore must pay by it. The commander of the capturing vessel is bound, on pain of forfeiting all his prize money, to transmit to the navy department and to the prize agent, complete lists of the officers and men entitled to a share of the capture, inserting the quality of every person rating. 5 U. S. Laws 110. These are absolute between the agent and claimant. Then as to the person certifying: The navy department is a public known office, and its seal entitled to faith. The accountant is a public known officer, created by law for a particular province of that department. 4 U. S. Laws 233. What he certifies in his province, as for instance the rolls in question, is a certificate from the proper officer of the navy department, and is entitled to the seal. It is not like the case of a private clerk using the seal of office. Certifying that it appears, is no objection. The roll is well known to be a list, in which is entered the person's name, sailmaker, from such a day to such a day; and the certificate has all that. As to the interest, I concede the witness had none strictly as commander; but in this case he gave a certificate that the plaintiff was sailmaker, and if Wilson had recovered as such contrary to the fact, the witness would have been liable to the officers of the same rate, for the loss; he was therefore directly interested to prevent a recovery. Reply. The interest, now objected, forms no part of the exception, and in fact it has no foundation; for if the witness was answerable for an incorrect return, he swore against his interest, as his evidence established the error. TILGHMAN C. J. This is a writ of error to the court of common pleas of Philadelphia county. It is an action brought by William Wilson, the defendant in error, who was plaintiff below, against William Miller, for money had and received for his use. Wilson was in the navy of the United States, and entitled to a share of prize money. Miller was the agent for prizes; and the dispute was, whether the plaintiff was entitled to a share in the capacity of a sailmaker, or of a common seaman. He claimed as a sailmaker. In the course of the trial, exceptions were taken to the opinion of the court on two points with respect to the admission of evidence, which are stated in a bill of exceptions annexed to the record. The defendant offered to give in evidence the deposition of John Shaw, who was captain of the United States schooner Enterprise, when she captured the prize, concerning which the dispute arose. This deposition was rejected by the court, because Shaw, as commander of the said schooner, was interested in the decision of the cause. There was no proof of any interest except such as arose from his being commander. I am therefore of opinion that he was a competent witness; because by the act of congress, regulating the distribution of prizes, he was entitled to a certain proportion, which could not be affected by the share which the plaintiff would draw, either as a sailmaker or common seaman. It has indeed been suggested, in the course of the argument here, that he had an interest in preventing the plaintiff's recovery, because he had given a certificate that the plaintiff was sailmaker on board the Enterprise, and therefore if the plaintiff recovered, Shaw might be subject to an action by the rest of the crew for having certified what was not true; but it is unnecessary to enter into the merits of this objection, because, not apVOL. I. 3 Y 1809. MURRAY V. WILSON |