
    
      RAMSEY vs. STEVENSON.
    
    East’n District
    
      July 1817.
    Appeal from the court of the first district.
    On the 3d of October, 1816, Stevenson, being in embarrassed circumstances, assigned over all his estate to M'Culloch and Holmes, his trustees, for the benefit of all his creditors. The parties are all citizens and residents of the state of Maryland, where the assignment was executed. This instrument is made according to the forms in use in that state, mentioning particularly a large amount of property, worth, probably, half a million of dollars, and, generally, all the estate, real and personal, of the assignor After this assignment had been made, Ramsey, one of the creditors, sent here, and attached goods belonging to the estate, to the amount of his debt, (which is admitted to be due) in the hands of the garnishee.
    
      If a debtor assigns all his estate to trustees, for the benefit of his creditors, any part of it may be attached before they obtain the possession of it.
    
      The assignees in the district court below, interposed their claim, as possessed of the property under the assignment, and pleaded it in bar of this attachment; but the court declared the assignment void-that it dis not vest the property assigned in the assignee, and gave judgment for the attaching creditor.
    From this decision, the present plaintiff appealed to this court.
    Standard, for the assignees.
    There are two principal points to be decided. We contend
    1. That the assignment of Stevenson, of all his estate, to the assignees, vested in them the eight which he had in the property assigned.
    2. Supposing the assignment to have had that effect, the property ought to be restored to the assignees, not with understanding the proceedings in the court below.
    I. It is a clear proposition, that every man has a right to dispose of his property as he pleases. Exceptions to this rule are admitted to exist-they will be all noticed. The question is, whether or not the property in New-Orleans passed by the assignment-and that it does so pass, cannot be doubted, unless there were some positive law of this state to prohibit it-we know of no such impolitic law, and believe it cannot be found in the statute book. If there is such a law, let it be produced. Will it be contended that this assignment is not good by the laws of Maryland? Such an argument must completely fail-the citizens of that state, by its constitution and bill of rights, are governed by the English common law. The proceedings of their courts are according to the course of the common law. It is unnecessary to inquire whether the general system of those laws be wise or not. The court do not require to be informed of this-we will not attempt to give information on this subject-but we do call on the counsel to say, whether any statute of Maryland forbids the assignment. If they cannot do this, the court will presume that what has been done, has been done correctly; since, as to this particular, nothing to the contrary is shown. Now, as all the parties are citizens of Maryland, they are bound by its laws. This rule will not be controverted. Then the true question is, what would the courts of that state 
      say of this assignment? If the conveyance is in compliance with the laws of a sister state, and all, the parties are citizens of the place where the assignment was made, will this court interfere, and in effect declare those laws a nullity? This would go but a little way to preserve the independence of states and the harmony of their laws. Is there not a certain respect due from one country to another, which has ever induced courts to recognize the laws and the rights of citizens and subjects, even of a foreign country? The reason of the law is much stronger with citizens all of the same republic. This too is a necessary county, a necessary courtesy, obserVed in every court. It is not a matter of speculation-it is not theory alone-it is a practical practice, and grounded on the laws of nations-and it is on wise principles, that foreign states acknowledge and act accord~ lug to the different civil relations which subsist between men in their own country. might be defied to produce an authority to the contrary The practice prevails in every government. What was said by Lord Loughborough, in the case f .Sill vs. Warswick, Hen, Black. 690-t, which was a proceeding very similar to the pre~ f .~i1l vs~ Warswiclc Hen Black. 690�i which was a proceeding very similar to the pre~ sent, is peculiarly applicable. " If the bankrupt happens to have property which lies out of the jurisdiction of the laws of England, if the country in which it lies, Proceeds according to the principles of well regulated justice, there is no doubt but it will give elect to the title of the assignees. The determinations of the courts of this country [England] have been uniform to admit the title of assignees." We believe this court has never been censured for a want of due respect to the laws of a sister stale: on the contrary, the most liberal views have guided its decisions, In this case there is not-there cannot be any imputation of fraud.
    But we are now to investigate the question, how far this assignment operates? To make the way as clear as possible for the decision of this court, let us see whether this actual or voluntary assignment does not vest the property in the assignees, to the same extent as an assignment would do under insolvent or bankrupt laws? We make this inquiry as, if the effect is the same, the cases heretofore decided upon both species of assignments, may he safely relied on, because analogous to the laws of the state of Maryland. A voluntary assignment, and an assignment under laws, are frequently spoken of in the books (when the subjeet of property ~n the assignees is agitated) as synonym~ms- and there are many decisions to tins point. Thus, in the case of Cleve vs. Mills, Cooke's Bank. Lows, 370, last edit. Lord Mansfield decided, that "assignments under commissions of bankruptcy, are considered as voluntary assignments. "So in another case, id. 372, that same judge decided, that a debt might be recovered in England, due to a bankrupt in a foreign country, where the law obtains analogous to the English bankrupt laws, which other countries will take notice of, and consider in the same light as if the bankrupt law made an actual assignment." By actual assignment, his Lordship must undoubtedly have meant, a voluntary assignment, agreeably to his own, and other opinions, expressed in former cases. The same decision was also made so long ago as the case of Captain Wilson, id. 373. decided by Lord Hard-wick, in 17.52-6. And, with a view to the same principle, Lord Kenyon. in delivering the Opinion of the court, in Hunter vs. Potts, Term rep. 193, which involved an inquiry into the effect of at assignment, iii a foreign country, made under the British bankrupt laws, proceeds to state the question to be, " whether or not the property passed by the assignment in the same manner as if the bankrupt had assigned it by his voluntary deed." And here it may be proper to notice particularly the opinion of the court of king's bench, in the case just cited. The decision went upon the ground, that an assignment under the bankrupt laws, and an assignment voluntarily made, i. e. without the coercion of the law, were the same. Erroneous opinions have been entertained with respect to the true meaning of the word "voluntary." It has been contended, that this word, (frequently used in the books) means without a valuable consideration ; but it is impossible to consider it in that light-when Lord Kenyon says, that it means a voluntary art, as contra distinguished from a compulsory act by law. Now, it is impossible for the gentleman on the other side to shew that the assignment of Stevenson, as respects the property assigned, operates in England, in the state of Maryland, and, with respect to citizens of that state, in this state, differently: the effect is the same.
    If what has already been said be correct, there is nothing now to embarrass an investigation of the truth of the first proposition.
    It is material to observe, that this controversy relates to personal property. It is assumed as a correct position, that by the law of na lions, (and it is not known that the municipal laws of any country forbid the principle) personal property is subject to that law which go~ verns the person of the owner, Vattel, b. 2. c. 7. s. 85. c. 8. s. 109-10. The Lex Domicilii always prevails, Huberns, 3 Dall. Rep. 370, note, thus states the rule in his third maxim. "By the courtesy of nations, whatever laws are carried Into execution within the limits of any government are considered as having the same effect every where," and iii the case of Sill vs. Warswick, the court says, "It is a clear proposition, not only of the law of Eng- land, but of every country in the world, where law has the semblance of science"-and the court will not at this late day, overturn an an- dent and well settled principle of jurisprudence. What then can be more evident, than that the assignment having been executed according to the laws of the place which govern the property and persons of the assignor, assignees, and the attaching creditor, this court will give the same effect to it, as would be given in the place where it was executed? If this court were left to make a rule upon the subject, would a different one be established? We think not. There is much good sense and justice in the principle it gives to every man his right-Every one is supposed to know the laws of his own government, but who is bound to know the laws of another? No one, unless he resides and trades there, II has been before observed that the British and Maryland laws are analogous.-Let us advert to the cases of Sill vs. Warswick, and ject of dispute, between assignees and attaching Hunter vs. Potts, already cited upon this sub-creditors, they put the question, in whom does the property assigned vest, at rest. These Cases were decided upon great deliberation, in favor of the title of the assignees-In both of them a particular creditrn had attached the property assigned. The question was whether he might lawfully do so? This was solved by enquiring. into the title of the assignees, for if the property vested in them, it was needless to go any further. Tue creditor would have no right to attach-But the assignments were made in England, and the property attached was, in both cases in America. There the courts were called on to say, whether the assignments veyed those goods, and it was held that they did. is there any thing in the case at bar, which will except it from the same rules as governed in those just mentioned? But possibly a nearer view of this case may be taken. Ex parte Stewart, 2 Am. Law journal 484, was decided by by a very able judge, in one of the courts of Maryland. The case is interesting, for the very points now in controversy, were involved in its decision. Stewart hadmade an assignment of all his estate in trust for the benefit of two cre~ ditors only ; and then applied for the benefit of the insolvent law of that state ; hut the court could not give him any relief under the insolvent law, because p. 187-8. "the act of the legislature was intended to confer a benefit on the debtor, and the ground-work of that benefit was, a surrender of all his property for the benefit of all his creditors." The learned judge then comments upon the validity of a bona fide assignment, at common law, in Maryland, and declares it to be good thtere-but that the asign- or is also subject to the comnon law consequences of such an assignment, viz, that his person and future property are always liable. This case is in point, and throws great light on the subject, Now Stevenson's assignment is made riot under the insolvent laws of Maryland, but according to the common law of that state, which according to SLewart's case is a good conveyance, It may be unfortunate for him, that he made this assignment, since himself and his future property are hereafter subject to the claims of his creditors, should the property assigned happen to be insufficient to meet them all: But this cannot alter the effect of the deed, or destroy the rights of creditors at large, to have an equal distribution of the property assigned, which it was the object of the assignment to give them.
    II. As to the second proposition, whether the attachment here, will prevent the restoration of the property to the assignees, must depend on this, namely, whether it was the property of Stevenson or of the assignees, at the time of the issuing out the attachment. Has it already appeared satisfactory to the court, that the property belonged to the assignees? The gentle. man opposed, wilt not say, that there was any fraud in this transaction ; every one knows the contrary-well, if all this he so. what right ha. the defetulant to attach? A. man cannot seize my property for a debt due from another-In Lewis & Wallace, Sir T. Jone's Rep 223, it was decided that when a debtor had assigned to a creditor property in payment of his debt, the assignor had no control over it; and that it was not suhject to attachment by another credj~ tor: Now what in the nature of this transaction of Stevenson and all his creditors upon the face of it? "I am embarassed," says the former "some of my creditor are harassing me with creditor are harassing me with suits; they will sweep all my property away; I will assign it over for the benefit of you all." What court on earth, will not uphold so correct and honest a transaction, so just a distribution?
    Again, we have not here to contend with a judgment in favor of an attaching creditor, in a court of the last resort, where it might be argued, that a court of competent jurisdiction having decided the question in whom the property was vested, that could not again he gone into; This is a splendid proposition, to be sure ; a very general rule. But there is an exception in this very case, which shew the great length to which courts will go in protecting the property, (for all concerned) in the assignees. The exception governs the case at bar, and here it will be seen that occurs have broken through that general rule, for the very purpose of giving effect to the laws of countries which recognize the rights of assigness. Thus in the case in 4 Term Reports, before cited, Blanchard had become insolvent, in England, at which time he had property in the hands of J and W. Russel of the state of Rhode Island and which one of the creditors attached after Blanchard had assigned his estate to assignees. The creditor received his debt under the attachment, the assignees not having time to interpost their claims, but going over to England, they sued him there for the money, as having been received in contemplation of law, to their use. The court of King's bench, upon great consideration, gave judgement for the plaintiffs, became the property attached by the assignment was vested in them, not withstanding the concousiveness for the judgment which had been given for the attaching creditor (the defendant was strongly insisted) on-which have been uniform decisions of the courts of law, and courts of chancery proceeding upon the same equitable principles, have all along made determinations. In McIntosh vs. Ogilvie cited in 4 Term Rep. 193 note, Lord Hardwick, on being told that the defendant, in that case, had not obtained judgment before the bankruptcy, said "then it is like a foreign attachment, by which this court will not suffer one creditor to gain priority, if no sentence were pronounced before the bankruptcy." Again, in Solomons vs. Ross, in chancery, 1764, cited in Folliot vs. Ogden, 1 Hen. Black. Rep. 1362, note, a. the money which had been paid into court, by the garnishee, on a bill of interleader, and which had been invested in stock, was ordered to be transferred to the assignees and a note which the garnishee had given to the attaching creditor, to 
      be delivered up and cancelled. In Jollet v. Duponthiew, ib. before Lord chancellor Camden in 1769, where pending the attachment levied by English merchants in England, upon the property of the bankrupt of Amsterdam, and which he had assigned there-upon the prayer of the assignees, perpetual injunction was granted against proceeding in the attachment, and in the case of Neill vs. Cottingham, in chancery, in Ireland; there the garnishee had been taken in execution, and paid the money in his own discharge : the Lord Chancellor called in the assistance of several of the judges, and after great deliberation, compelled the attaching creditor to pay the money which be had received, over to the assignees. From these cases it appears, that however the question might be, between subjects of different countries, the policy of the law has been uniform with respect to assignees and attaching creditors, subjects of the same government, in giving full effect to the tittle of the former. It is unnecessary to repeat, that in the present case the creditor and assignees are citizens of Maryland, they are bound by the laws of their own state, which are the same, as governed the decisions just cited. " The consent of ever subject is virtually included in the laws of England, and he is bound by them accordingly.”-Lord Coke. Mow, it is no answer to these authorities to say, (if the fact were so) that by the laws of this state, such an assignment, entered into here, is not good. Such a law does not, in the. nature of things, cannot affect this case. The gentleman must shew a law of this state declaring an assignment void, though all the parties are citizens of the state of Maryland, where it was executed. He must be prepared to go to this extent; for any thing short of it, we maintain, proves nothing against the rights of foreign citizens : but, as this cannot be done, the court will feel itself bound to protect the rights of the parties. be them who they may. In Robinson vs. Bland, 1 Black. Rep. 262, this doctrine is recognized and confirmed. A singular case is there put by Mr. Justice Wilmot:-"There are many contracts not good by the laws of England, yet good in other countries, as a contract for prostitution.” It is not necessary to discuss the question, whether such a contract would be good here. The rule of law briedy is-in a controversy between citizens of any country or state, concerning personal property, the laws of the place waere they reside must govern the decision of every court, wherever the contest may be carried, on.
    
      Bat there are two cases which we are given to understand will be relied on by the defendant's counsel, Le Chevalier vs. Lynch, 1 Douglas, 170-and Simonton’s case, 2 Martin, 102. The ease in Douglass by no means contradicts the principles contended for. The action there was brought by the assignees of a bankrupt, against a foreign garnishee, who had been compelled to pay the money, by a judgment of a court of competent jurisdiction, the assignees not having interfered. The, court very properly gave judgment for die defendant-for what could be more clear, than that a debtor, having been compelled by a court of competent power once to pay the money, should not be compelled to pay it again. It Would have been manifestly most unjust to have compelled him to a second payment. But the assignees might have recovered the money back from the attaching creditor, as was done in the case of Hunter vs. Potts, and Folliolt vs. Ogden. Nor does the case of Simonton in the least impugn the authorities cited for the plaintiffs. If is understood, however, that a very general idea has been countenanced in the inferior courts, that assignments? made in a sister state, although according to the laws of the place where executed, are a perfect nullity here-and that idea is said principally to LOUISIANA be grounded on this case : but would the learned judges who pronounces the decision be willing to say that they intended to declares such to be the law? The case does not all warrant the idea attempted to be drawn from it-on the contrary, when examined the truth is the direct reverse. But if errors have gone abroad, it is due to the character of the bench to have it explained. Now, what is the case when fairly considered? No more man this-that a defendant in goal could not make a cession under the laws of this state-nothing more. The counsel, to be sure, went widely into the validity of the assignment. The court, however, thought it unnecessary to decide upon the character of the transfer : but said, admitting the fairness and legality of it, it is perhaps, an obstacle to the sessio boborum ; for, by his transfer, the debtor has deprived himself of the means of complying with the requisites of our law. How deprived himself?-because he had made an assignment for the benefit of a few creditors only ; and his estate being then vested in the assignees, put it out of his power to assign his estate here, as re- quired by the laws of this state. The case of Siminton, then, is not a case agianst the present plaintiff's, but rather against the defendant-for the court goes upon the ground that the vested the property in the assignees at Philadelphia. If the court had not considered, that such was the effect of the assignment, the property must have remained in the insolvent, who then might well have assigned it here, and had the benefit of the insolvent laws of this state.
    Duncan, for the attaching creditor.
    The principles laid down in the case of Hunter vs. Potts, relied upon by the counsel of the assignes, are not applicable to the present. The two cases are absolutely dissimilar. The discharge in that case was under an act of banckrutcy all the property was, agreedably to bankcrupt laws, to be fairly and equitably disturbed amongst the creditors. Any thing like preference-any thing like advantage taken of the debtor or creditor-is destroyed by such laws. But in this Stevenson assigns his property to whom he pleases ; he names his own trustees ; he prescribes hi sown terms ; he gives his trustees the power of paving themselves in preference to any other creditors; and the residue then goes to whom? To those creditors who will sign a re- lease within a certain period. In the first place, the assignees do in fact take all the proper- ty ; for they must pay themselves first-and then,and only then, the other creditors come If no property remains the excluded creditors are deprived of all remedy. Here is downright and adjustifiable preference. In Hunter vs. Potts, no such preferences existed, or could exist. Every thing was distributed as the law commanded. Here every thing must be done the will of Stevenson. Besides, after pouring out nearly all his favors on the assignees, if any thing remains to evince a fondness for any others, it is only to those who will discharge him within a certain time. Here are terms most positively imposed upon legal, honorable creditors. This court will consider the arrangement of Stevenson as it merits ; and will then say whether Hunter vs. Potts, can assist the plaintiffs in their unawarrantable demands.
    It is unnecessary to argue, whether an assignment under an insolvent or bankrupt law would include the property attached ; which ever way that question is decided will not affect the present case. This is a voluntary assignment of Stevenson and we contended that in principle, and upon authority, the creditor had a right to attach the property in dispute.
    The principles of law prevent the property in New-Orleans from being comprehended in this assignment. And for argument's sake, the validity of this instrument, we then say, that all voluntary assignments made by the debtor are, when accepted by the creditor, in the nature of a contract between them. Those creditors who accepted it are bound by its terms ; and unless a special law of Maryland exists, which makes it, when agreed to by a majority, binding on all creditors, there is no contract between the debtor and those who do not accede to to the instrument. Ramsey never agreed to this assignment-he had a right to do so, if he pleased -by not doing so, he is not bound by any stipulation contained in it. The very act of creditors accepting payment under it, proves that some agreement must be necessary to make it binding on them ; This is exactly a contract. By not acceding to the contract, they may use all legal remedy to obtain payment ; because, when they consent to receive payment from the assignees, they agree to take part for the whole of their debts ; when they do not consent, their debts remain in the same state, undiminished and in full force against the debtor. Now, apply this principle to the present case : the property of stevenson, he assigns over for the benefit of those creditors who will sign the release. Those who accept this condition are bound. Ramsey would not ; of course the contract did not extend to him ; the law will the give him the power to obtain satisfaction in the best manner. Besides, because a creditor refuses to accede to an instrument, made according to the mere will and disposition of the debtor, because some of the creditors think it better at once to accept part of their debts than to incur the danger of losing all, is an honest bona fide, vigilant creditor, as Ramsey unquestionably is, to be deprive of his right? This court will never sanction such a principle.
    Again: in voluntary assignments, a debtor can only assign property within his control, without violating any law of the country where some of the property assigned may be stipulated. We assume this as a correct principle, that though an assignment may be good in the country where made, and it is to be partly executed in another, where the law is different, no court of that count-try would give such part their sanction, otherwise they would violate those oaths which impose upon them the necessity of administering justice according to the laws of their own state. In Louisiana, its law are paramount ; none others dare come in competition with them ; if not, we are without law and, of course, without justice. A statutory provision enacts, that unless three-fourths of the creditors are willing to discharge the debtors he still remains bound. Another law of this state declares, that no preference shall be given to any creditor. Now, part of this assignment is to be executed in New-Orleans; that part is in direct contradiction to its laws, and cannot, surely be enforced. Now, to this it is no objection to say, that it is personal property in dispute, and, therefore, must be governed by the laws of the country where the owner is domiciliated. This is a correct principle when it does not countervail any law of that country where the property is situated. We call to our assistance the so much boasted case of 4 Term Rep. 193, for a posidve confirmaton of this principle--Lord Kenyon's opinion beginning with " and that it does so pass," &c. We, therefore, contend that, from this undeniable authority in our favor, the rules regutatiug this property in dispute, must be according to the laws of Louisiana and not of Maryland.
    We still go upon principle, and further contend, that there is a great difference between an assignment made under an insolvent or bankrupt law, and a mere voluntary one of the debtor. The word voluntary means, without a valuable consideration. This is the word, and meaning given to it as used in English statutes, contradis-tinguished from a valuante consideration ; as an example, the statute 27 Eliz.cap. 4th, is parti-culary reffered to, and Atk. 94, gives the same meaning, 2 Vezey 11, is an authority completely in support of our position. Hardwick there held that s voluntary conveyance, though without fraud, is void against creditors, if indebted at the time. Even a good consideration, one depending upon the relationship of the debtor, is not sufficient or able to divest the property so as to cut out the rights of a creditor. In all cases where assignments for the benefit or creditors, made in another country, have been ratified by courts, those assignments have been made under insolvent or bankrupt laws, and were not the voluntary ones of the debtor. We are not disposed to question the validity of these decisions because they do not affect the present case. But no case can be produced ratifying, in the same extensive manner, an assignment made according to the mere will of the debtor alone, who may prescribe his own terms : these terms, when accepted by the creditors, are then binding, and only then, agreeably to the principles before laid down, that it is but a contract. Besides, if a voluntary assignment were as effectual as one executed according to the provisions of a bankrupt or insolvent law, where would be the necessity of calling it a voluntary one? The term must certainly be employed for distinction's sake ; if not there is, then, no difference in these species of assignments. The word " voluntary," must mean something or nothing. If it have any meaning at all, it would evidently convey an idea of distinction, that the law and the courts did not give it the same interpretation or effect; that, in fact, it must be viewed as a conveyance totally different from one executed according to a law : if it can convey no meaning at all, the word is unnecessarily employed, and only produces error and confusion.
    Another principle of law, on which we rest this case, will easily present itself to the attention of this court. This property cannot be comprehended in the assignment of Stevenson, unless the assignees had a delivery of it. The assignment itself did not give them this delivery, and we venture to say that no decision can be produced which would support such an argument. A delivery must be actual or legal: no actual one was given in the present case, and we conclude there was no legal. This assignment is to be considered in the same light with a transfer of the property of the debtor to his assignees. Taking the opposite side on their own ground, we must suppose it to have a valuable consideration, and therefore very much bearing the features of a sale. To effectuate a transfer there must be a tradition of the thing transferred-a legal bona fide tradition. The will of the debtor alone will not give the delivery. If the property was corporael it should, to have given the title to the assignee, so as to cut out this attachment, have been absolutely put into the possession of the assignees or some agent in this city for their use ; if incorporeal, the titles or the documents necessary to constitute the title, should have been received by him for their benefit, in support of these principles we cite the important case of Dumford vs. Brooks' Syndics, 3 Martin, where the point for which we are contending is luminously handled in the opinion of the court. We refer the court with great pleasure to this decisions, as containing all the doctrine on this subject. But one citation we will make, it is this : the court are speaking of the requisites of a good delivery, and in arguing on this point they say that “delivery may take place by the actual consent of the parties," this principle with redoubled force applies to this case; none of the other requisites of a delivery are complied with by Stevenson’s assignees :-Ramsey refuses to consent to the transfer of the property, which is one of the requisites laid down by the court, and of course as regards Ramsey, there is no delivery:It will therefore follow that, as to him of any other creditor who refuses to subscribe to the assignment, the property of Stevenson is open t0 an attachment. This is our case exactly ; on this principle we attach the property : and on this principle we claim it at the hands of the court.
    We will now present the court with a few cases, and will premise that so many have Come up in examining this subject, that it would tax their attention to submit them all. The most prominent will be produced.
    Kirby 343. Taylor & al. vs. Glary & al.-We think it a strong case in support of our claim; we merely quote the books for the court, without relating the points on which these cases turned, or the principles decided. In support of the point settled in Kirby, we agree that, in these American states, there is no difference between them, as considered among themselves and any foreign country. Each state is independent ; its laws are not extra-territorial; in all their proceedings they consider each other as a foreign state. The constitution of the United States views them in the same light, each governing itself, without the interference of any other. The opposite side in their argument admits the independence of the slates, if so, the case in Kirby completely applies. The court there held that a commission of bankruptcy in England did not comprehend the debtor’s effects in Connecticut. England and Connecticut were foreign and independent countries. If the principle above laid down is true that each state is foreign as regards the others, this court agreeably to the "stare decisis,” will hold that this property would not pass under an assignment, executed according to an insolvent or bankrupt law, much less under the present voluntary, objectionable, and unjust one. 2 Johns, Rep. 193. Smith vs. Spinola, the court laid down a rule which we contend applies irresistibly to the present case. "The lex loci must govern in the construction of contracts, and the remedy on them must be prosecuted according to the laws of the country in which the action is brought.” 7 Johns. Rep. 117, White vs. Canfield, confirms this doctrine. The remedy, in this action, is sought for in this court ; that remedy must according to the lews of this state. 3 Dallas 369, Emory vs. Greenough, decide by judge Iredell, will shew the court the opinion entertained by that able judge. of the nature avid extent of discharges under insolvent or bankrupt laws. In 1 Washington’s Rep. 199 Payne vs. Dodley, the court in speaking of an insolvent’s discharge, says “that courts of equity never interfere to deprive the plaintiff at law of any legal advantage which he might have gained, unless the party seeking relief will do complete justice, by paying what is really due." By plaintiff at law. the court meant a creditor who h ad resorted to the law for the satisfaction of his debt.
    Lord Hardwick, in 1 Atkins 153, ex parte Ward, evinces his partiality to honest, bona fide, creditors. One of the principles in that case is that a creditor say either prove his debt under the commission, or pursue his debtor at law. This is our case, Ramsey would, not accept of a share under Stevenson’s assignment, and had pursued his debtor at law. Dougl. 160, The assignment of a bankrupt’s estate is binding only in the state in which it issues. 2 Beawes Lex Merca. 516, 6 edition, contains an opinion given by Lord Chancellor Talbot, when at the bar. That opinion was, that a certificate confirmed in England would be no discharge to the person sued, if a suit had been brought against him in Virginia, on his going into that country, But an English case on which we strongly rely, and which never has since been overruled or even questioned, is to be found in Dougl. 169 Chevalier vs. Lynch : in that case the money was attached according to the law of the place. The assignees claimed it, Lord Mansfield held that the assignees could hot recover the debt. This court will, when considering that this was a decision of Lord Mansfield, who seldom erred, whose determinations were always, except when prohibited by positive laW, upon the plain and infallible rules of natural justice, surely give this case all the weight and importance it so justly merits.
    But one other authority upon which we rely with the utmost confidence, and then we ill relieve your honors from so tedious a research upon a point which we believe to he so plain, and so well settled as we conceive. It is in Simon-ton’s case, 2 Martin, 102, which must be so well remembered by your honors, that we will not detain you by relating the principles therein decided, but content ourselves by a reference to the book, and though the idea may possess the gentleman that it is not in opposition with the principles contended for by him, we will leave Use examination of the similitude of the two cases to the better judgment of this honorable court, as we admit the principle that every man has a right to dispose of his property as he pleases : the opposite counsel have granted that there are exceptions. This case is one of those 
      exceptions, that a debtor cannot convey property to the prejudice of his creditors. We contend that if the claim of the assignees is allowed, this right will be given by the court: and more, will it not also deprive us of all remedy? where is the recourse left, should the appellants succeed ? They, no doubt, from the anxiety shewn in this case, are not yet paid, and the property now claimed will enure to their individual benefit: the balance if any to be distributed to those who have acceded to the will of the debtor, while we who thought that by the laws of civilized nations it required more than the will of one to bind, and resorted to a plain remedy, sanctioned not only by the principles of law, but the principles of equity and justice, will be debarred all rights, unless this court interposes its authority and projection in our behalf, and closes the door against the unjustifiable pretensions of the assignees. It is unnecessary , as the counsel contend to supoena any statute of Mary-to give us its testimony in our favour; but if we should quote them as binding authority, we would refer to the 2 American law .journ l, 184. wherein it will be seen, that by the act of 1805, and the supplemental act of 1807, of that state, such an assignment as this would not avail against creditors, being in our opinion in every respect similar to the case of Stewart & alii, who were refused relief by chief justice Nicholson; “ the legislature certainly intended” says the learned judge, “ to place all creditors on an equal footing by providing for an equal distribution of the debtor’s effects, in proportion to his debts. It could not be their intention to allow him to give a preference to one, and to destroy at the same time bis liability over to the others, such a provision would be iniquitous in the extreme ;" if we are collect in the analogy of the two cases, the above quotation will suffice for the many enquiries of the learned gentleman, and will obviate the necessity of answering to the distinction where the parties litigant are citizens of the same state, and where the attaching creditor is of a different state.-: This court is not bound to presume “ omnia, recte acta esse:” The presumption one way or the other will not decide this case, the court is called upon to say, how far they will give effect to an assignment, when part of the instrument is to be executed in New-Orleans, and is against a direct provision of its laws, in favour of attaching creditors. The courts have always looked upon these voluntary assignments with peculiar jealousy-great power is given to the debt- or; every feature should be critically examined, and unless the meat exact and scrupulously impartial justice is rendered, the courts should destroy them; they ought not in any form to injure the rights of creditors: no preference should he given among those who relied on the honor and credit of the debtor; every thing should be as fair and as legal as the most rigid justice could demand.
    The opposite counsel have asserted, that this assignment will be executed by this court, upon the principles of comity ; we ask if this is one to the execution of which, the cosily of law can be properly called? Is there in it that fairness, equity and equality of distribution of all the property among all the creditors, as to justify this court in forcing it to the prejudice of an honest creditor, who refuses to be thus deprived of a just debt, and resorts to a right recognized by our laws ?-a right which must be sustained against so partial an instrument. Or rather does not the very face of the deed shew the preference given the trustees-one not authorized by the laws of any country, hut made valid only by the consent of those who accede to its terms. Is not this preference in fraud of creditors. What court will so proceed against law, reason and justice, as to give sanctioned lent an attempt the overthrow of right?
    
      We now leave the case to the court. Those are too principles and authorities upon which we ground our claims : we call on this court at once to say, whether a debtor can have the sanction of the law, in doing that which reason and the common sense of the world disown.We wait to know whether a debtor can say to one creditor, take all my property to pay your debt: to another, l will deprive you of all satisfaction, you shall have nothing to which you. can resort, you have confided in my honor and in my integrity, the law will authorised me to violate these sacred ties, your debt is now a nullity, These are the principles, advocated by the assignees, they demand the protection of this court to support them in a claim, bottomed on a violation of the eternal principles of equity, and impartial justice; with the vigilance and integrity of Ramsey on our side, with the hardiness, and the avarice of the assignees, that grasp at all, to promote the interest of self on tne other,-this court will une long hesitate in their decision.
    Dick, United States' attorney in reply.
    The original parties to this action, as well as those intervening-the present appellants-are all citizens of Maryland ; and it is not denied, that 
      by the laws of that state, the assignment in question would be held good. Here, then, the question' would, seemingly, be at rest, But on the other side, loud and reiterated charges are rung on the odious epithets "fraud," preference," &c. With respect to the firsts there is no proof, nor ought there to be any suggestion. As regards the other, let it be admitted, and what is the consequence? Simply, at most, to deprive the assignor of some privilege he might seek under the laws of Maryland; but in no manner operating the avoidance of the assignment. That was bona fide, upon sufficient consideration, and by no means novel or extraordinary. But, says our learned opponent, it was voluntary, and, therefore, fraudulent! "The word voluntary means, without a Valuable consideration."This is a definition promulgated for the first time ; and, like many others of the propositions in the same argument, advanced with a boldness proportionate to its insufficiency, and relied on with security in proportion to its weakness. The term voluntary, as it relates to conveyances of this nature, is, peculiarly significant, and, it was supposed, could not easily have been misunderstood: a voluntary conveyance is one originating in the will of the party, and is used in opposition to forced. An illustration of this signification is very familiar, from the use made of these terms in oar law regulating the cessio bonorum : there the distinction is forcibly given, when speaking of voluntary and forced surrenders Voluntary conveyances, under the rigid principles of the bankrupt law of England, are never avoided as such : it is only where they are attended with circumstances of legal or actual fraud, that they are declared void, as when made in contemplation of bankruptcy, and giving an undue preference. The nullity, of the latter description, is the effect of the positive law, and in relation to a particular system -the principle was unknown to the common law, and it is unknown to the institutions of most of the states of the union, and, amongst others, to those of Maryland.
    The insolvent law of Maryland has a clause sleeving the benefit of the law to persons who give an undue preference to their creditors; but this law by no means declares the act giving such undue preference null and void. The expression of the law is as follows : "hath assigned or conveyed any of his property with an intent to give an undue and improper preference ;" and "any deed, conveyance, transfer, assignment or delivery of any property, real, personal or mixed, of any debts, rights or claims. to any creditor or security, made by any person with a view or under an expectation of being or becoming an insolvent debtor, is such an improper preference as is here intended. 1 Law Journal, 100. Here the provisions are very strong, and doubtless very proper. But their very strength and positive enactment shew, that, while they apply to the cases of persons applying for the benefit of the insolvent law. they do not apply to any other. Nor, in that case already stated, is the transfer declared null and void.
    Herein they differ from the bankrupt, law of England and the late bankrupt law of the United States, and, indeed, upon principles which distinguish bankrupt from insolvent laws, By those laws, such an assignment or transfer would be held to be an act of bankruptcy in a trader, and would be declared void. But under the laws of this country, generally, no such rule prevails. Here the debtor is permuted to choose, his creditor, and, if there be no fraud; if the payment, transfer or conveyance be bona fide, the creditor or transferee, is entitled to the benefit of the preference he has received. It is, when the debtor comes forward to ask the benefit of the law, discharging him from custody or from his debt, that the subject is canvassed, and it is upon him that the consequences fall.
    
      In this case. if Stevenson were to demand the benefit of the insolvent law, the transfer or conveyance to the appellants might he objected to him : but it does not appear that Stevenson has made such application, or that he ever will, or if he had or did, that it would ailed this subject. The assignment in Baltimore, has invested the assignees with all the property described in the deed ; and the appellee knew too well the operation of the instrument to attempt disturbing it. The counsel for the appellee have fallen into an extraordinary error in relation to the principles just considered, when noticing the decision of chief justice Nicholson, in the matter of D. C. Stewart and others, petitioners for the benefit of the insolvent laws of Maryland. 2 Law Journal, 184. That was a proceeding under the Maryland insolvent act, analogous to the issue directed by our insolvent act of 1808. where fraud is presumed or charged by any of the creditors." The parties in that case having assigned all their property for the benefit of a few creditors, applied for the benefit of the insolvent law. "The question for the decision of the court is," says Judge Nicholson, "whether this is 'an undue and improper preference of one creditor or security,' in contemplation of the act of 1805, to deprive the parties of the 
      benefit of that act." The whole reasoning, and the decision of the case, turn upon the subject. of applications for the benefit of the insolvent laws-the title, of the assignees, or preferred creditors, in the property or credits transferred to them by the debtor, is never once questioned. Such an enquiry. indeed, could not have arisen under the laws of that state, nor could it. I humbly conceive, under the laws of this, have, arisen. until the act of the 20th February. 1817, relative to voluntary surrender, &c. By the 24th section of that act, it is provided-" that any debtor who shall have sold, engaged or mortgaged any of his goods and effects, or having disposed of the same, or confessed judgment in order to give an unjust preference, &c shall be debarred from the benefit of this act, and the said deeds or acts shall be declared null and void."
    
    
      It may be proper further to remark, as strongly illustrative of the truth of this reasoning, that Judge Nicholson, in denying the benefit of the act to Stewart and others, goes chiefly upon the ground, that they had already divested themselves of their property. "How," says he, "is the spirit of the act complied with, when a man assigns the whole of his property to-day. to one creditor. and comes in to-morrow, offering to surrender that which he has before disposed of, and which he has not, for the benefit of the other?" 2 Law Journal, 188..
    The paragraph following the sentence last quoted, and upon the same page, is, I conceive, conclusive-its direct hearing upon the subject at bar will, I hope, he a sufficient apology for citing it, at some length :-" It is,” says the authority, " agreed that, at common Law, a man may pay all his property to one creditor, in discharge of a bona fide debt, to the exclusion of all the others, and that this act of 1805 does not take away his right of giving a preference. Of this mere can he no doubt. It is a right with which the act does not inferfere. It only declares, in substance, that if a debtor does insist on and exercise his common law right of pre-fering one creditor to the exclusion of all the rest, he must take the common law consequences, His person and his subsequently acquired property must remain liable to the claims of hie excluded debtors” &.c.
    Simontou’s case was that of a debtor in confinement applying for the benefit of the cessio banorum.
    
    It was considered by the court in two pointsf of view : 1, "whether a debtor in prison could make a cession under the civil code ? and 2 Having assigned his property for the benefit of a few creditors, and having nothing left, whether he was entitled to the benefit of the taw? The decision was against the application, on the first ground; and the reasoning of the court alike against it, on the second. But the decision here was purely personal to the applicant, and did not, in the most remote degree, question the validity of the assignment made by him. The assignment made by Simonton was fully discussed, and considered with very great attention at the time, as well by the superiour court of the territory, as by the district court of the United States: in neither, was the deed declared invalid or irregular, so far as it respected the assignees, or the property precon-veved by it. On the contrary, Simonton. who acted as attorney in fact, for Williamson and Stephens, his assignees, brought suits in the district court of the United States, in their names, for property and credits conveyed in his schedule, and in which the assignees recovered. One case was Williamson and Stephens vs. Lee and Chique, syndics of William Brown, deceased, and his estate insolvent.Brown had purchased goods of Simonton (previous to his assignment,) which remained unchanged in his (B's.) possession at the time of his insolvency, which took place shortly before his death. The claim upon Brown was assigned amongst the general debts of Simonton. Si-monton, it is well known, was followed here by a creditor named Muirhead, who imprisoned him and proved his debt to a large amount. The total inability of Simonton to discharge the judgment in Muirhead's case was ascertained before the recovery from the Syndics of Brown, and Muirhead's counsel interposed in the United States court, alledging the insufficiency of the assignment to carry the property there recovered. This interposition was at the time, considered an experiment, and proved an un successful one. The counsel of Muirhead nev- er thought, indeed, that they had any other re- course than against the person of Simonton :- at the time of commencing their action against him, they knew of the claim on Brown's estate, and of other claims to the amount of upwards of $50,000) in Louisiana, which had been trans- ferred by Simonton, to Williamson and Ste- phens, but they never, except in the instance I have stated, looked to this fund for the dis- sharge of their judgment, or attempted to ques. tion the assignment.-Surely every feature this case, and its incidents, are powerfully in aid of the appellants. In Simonton's case, 2 Martin, 104, a citation is made from judge Nicholson's decision, 2 Law Jour. 189, which, as it is there given by the counsel, lays down principles by no means warranted by that authority, or, as far as I know, by any authority. I will not trouble the court by citing the passage at large: but it will be discovered that if the counsel had given the whole sentence, instead of the last member, the doctrines would apply, not generally, hut exclusively to "authorities under the bankrupt system."
    It is said that Morrison's assignment was voluntary, and that therefore, the creditor might attach. But how does a voluntary assignment give any more right to attach, than a forced assignment (as one under insolvent or bankrupt laws is considered to be) would do? We had thought and believe we have shown, that the effect of both classes of assignments is, in this respect, the same. No argument is used to destroy the reasoning, or weaken the decisions employed by the gentleman, my colleague, to prove this position.
    But it is said that this assignment cannot bind the appellee, inasmuch as he is not a party to it. Now, it may be true that he is not a party. and yet that fact not affect tins cause, as in truth it does not; because, if the property, by the assignment, was vested in the assignees, there is an end of the question. The counsel opposed, have not even attempted to say that this is not so, and they could not, for it is submitted that this has been clearly proved. Then what right had this creditor to attach property belonging to tire assignees, to obtain payment of a debt due from another?" We must, be now living in times, such as never before existed, since civil society began. The gentleman must fancy us returning back to that state of existence, in which we found the aborigines of the soil. But, it is said, the assignment'was voluntary, and therefore, not binding; because a voluntary assignment means, "without a valuable consideration." But he is mistaken in this point, as has already been shewn. The authority of the counsel, and of courts are voluntarily arrayed. Without further examination, we are content that this court decide, between them. Then, he say, no authority can be shewn, where a voluntary assignment would operate, to transfer property situated as that in dispute, now is. Many authorities have been already cited to it is very point. If this had been recollected, probably this assertion would not have been made. Two more however are recollected. They are cited : Newland on Cont. 374-5-one of them. particularly, was like the ease at bar, in all respects. A person in failing circumstances, assigned over all his estate to a creditor, in trust, to sell it, and raise money for the payment of all his debts-held that the assignment was good, and operated to transfer all the debtor's estate.
    But, it is further urged, that a voluntary assignment can only transfer property ,situated in the place where the assigment is made. Now, this is a - mistake-1. Because personal property is always governed by the lex loci of the country where the owner has his domicil. 2. Personal property always draws to its owner the possession. 3. Where, from the nature of the assignment, actual possession cannot accompany the deed, it is dispensed with-as. the sale of a ship at sea, conveyance of personal pros perty in another country, &c. Newland on Cont. 375-7-Terms Rep. 72.
    There it is said, that the assignment is good in the place where it was executed ; yet, if it is partly to be executed in another place, where the law is different. the law of the latter place must govern. Now, it is, perhaps impossible for such a case to exist. The question always is what is the law of the country where the contract is to ob executed and consummated. Indeed mere can be no such thing as a contrace-partly to be executed in two countries. But suppose there is any thing in this idea, in point of fact, what has this court to do with it, mas-much as no part of this contract between Stevenson and ids assignees was to be executed in New-Orleans. The assignment says nothing about paying the appellee m New-Orleans. It is useless, therefore, to say anything about it. This court will decide according to the law of the state of Maryland, where the contract was to be executed, of which all the parties are citizens, and of course subject to its laws. This is the true rule. The counsel have evaded this settled principle of law, and talk about this court's violating its oath; if it were to decide that this assignment is good ; because, say they, the statute of ibis state requires that three-fourths of the creditors shall sign off their claims, in order to discharge the debtor. Well, this may all be true enough in, the abstract : but the gentleman forgets that the assignment in question was not made under the insolvent laws of this state, hut under the common law of Maryland. Let it be shewn that the instrument is not good according to that law. But it has not been, its cannot be shewn, that any law of this state decares this transfer, or one made in Maryland, under the same circumstances, void. Let us pursue the counsel, however, in their course.
    They have embarrassed the cause with much, matter totally irrelevant ; and the confusion which they create almost defies an attempt to answer them-but respectful considerations induce this reply. What then is next urged by the appellee? Why, in substance, what has been before observed on, admitting that personal property is governed by the domicil of the owner; they contend, however, that the laws of this state, being about to be violated, the assignment is not good, though they do not shew us, how the law is infringed.
    Now, the gentleman again talks about a voluntary conveyance, and asserts that it means “something or nothing.” That we admit. Then it is alleged, that it means “ without a valuable consideration.“ That we deny ; and we have shewn that it means no such thing. But how are we to get over the statute of 27 Eliz. referred to in 4 Atk 94? There, it is said a full-exposition may be found. Let us see whether that case has any thing to do with this. The question there was, whether a cunveyance of a large estate, made by a father to his child was, good, it having been done on the eve of his bankruptcy, and the statute of Eliz. having enacted, that no such conveyance should prevail, unless made with a good and valuable consideration. and it was expressed in the assignment that the consideration was five shillings, which the court said was an insufficient consideration. and ordered the property to be conveyed to the bankrupt's assignees. But it is no where said that a voluntary conveyance means without consideration. Here again the counsel have mistaken their own authority; and really what has this court here, to do with the construction of a British statute?
    Pursuing the learned counsel, the next step, we are met with more of the history of Eliz. 2 Vezey-great fondness is discovered for the reign of this virgin princess-again, this court is required to construe an act passed at art ear lier period of her life-the 13th year of her reign. That too, was a statute made to prevent fraudulent conveyances; and the question in the case in Vezey was, whether an assignment made without any consideration, other than love and affection, was good? Lord Hardwicke very properly held it was not. Though his lordship does not say, (as we might be led to conclude from what fell from the opposite counsel, he had said) that a voluntary conveyance means without consideration. But, although the case has nothing to do with the one at bar, it may gratify the counsel, who have taken care to cite it, to be informed that it has been overruled in Cowper's Rep. 710-11, 1 Atk. 265, 2 Browne 90.
    Again : it is argued that in this case, there was no delivery of the property assigned ; that in law there can be but two species, one legal, the other actual. This is good law, it is admitted: but can it be said of the property in question, that there was not a constructive and legal delivery? Enough of this has been said already. The argument of the opposite counsel is as good for the assignees as though we had made it for them. It is unnecessary to make any observation upon the particular objection, that there was no delivery of this property to Ramsey, though it is singular, to be sure, that Stevenson should be censured for not delivering property to that gentleman after he had assigned it over to others.
    As to the case in 3 Martin 222, that case is not denied ; it is admitted to be good law, and we had intended to cite it, as very much to the present argument. We think the counsel was unfortunate in selecting this case. Let the question now be, whether there has been a sufficient delivery? “Delivery may take place by the mere consent of the parties.” says the court. We can assure the counsel, that both Stevenson and the assignees consented to this assignment. This expressly appears from the instrument itself under their hands and seals. What more is required? Nothing, according to their own. authority.
    
      Kirby. 313. a Connecticut reporter, is next relied on ; for what purpose the counsel have not exactly informed us ; but they have informed us of what is not to be found in that author rity. viz. that the debtor’s effects in Connecticut did not pass by an assignment under a commission of bankruptcy in England. The question, was, whether defendants, who had been discharged under the bankrupt laws of England. could be sued in Connecticut. held that they might. because the plaintiffs had not accepted of a dividend of the bankrupt's estate.
    We thank our adversary for the three cases next cited, in 2 Johns. 198. 7 ib. 117, and 3 Dall. 369. As to the first the lex loci must govern in the construction of contracts, and the remedy on them must be according to the law of the country in which the action is brought. We only ask the court to adopt this rule. “ The lex loci must govern in the con struction," &c.-that is, in this case, the laws of Maryland must govern. Next, the remedy, that is, whether the party may be held to bail- whether a capias or summons-whether declaration or petition, &c &c. must be according to the place where the suit is brought. As to the second case, that is to the same point, and exactly proves that the rule to universal, that the law of the country, where the contract is to be performed, must govern. As to the third case, although it has been admitted, whether it be good law, yet, as the gentleman has introduced it, he cannot object to the doctrines it contains ; it recognizes the principle, that the law of the place where the contract is to be executed, must govern. Thus the defendant there, who had contracted a debt in Massachusetts, but who was discharged under the insolvent laws of Pennsylvania, was not allowed to set up his discharge in bar of the action. We believe this decision was right. The supreme court of this state has ruled the same point; but there are contrary decisions, as in Miller vs. Hall, 1 Dall. 229.
    The case in Washington. 199, is not in point, or rather it proves nothing to the present case There it is said, "courts will not deprive a party of a legal right:" we say so too; they cannot. (excepting always the ordinary common law and equity distinctions in England)-and we believe it will not be done by the court in this case. But what are "legal rights ?-that's the question. What was said by Lord Hardwicke, in 4 Atk. 153, has still less to do with the case now before the court: there the question was, whether a creditor, who could not prove his debt under a commission of bankruptcy, might not still sue-and it was held that he might, of course. But the lord chancellor does not say that a creditor might attach goods which the debtor had assigned over to others-_no such thing. The goods being vested by the assignment in the assignee, puts it out of his power; he must come in with the rest of the creditors. But if the counsel for the appellee had looked to the next page of the book just cited, he would have seen a case directly opposite to his opinion of the necessity of an actual delivery of the thing assigned. It is the case of Brown vs Dodson, and determines, that a sale of a personal chattel, as a ship at sea, is good, though no actual possession was given; for the rule is, that, where the property lies out of the place where the assigment is made, then, by opera
      tion of law, the delivery takes effect by construction. What cannot be done in the nature of the thing, shall not be required.
    The case in Douglass 160, does not prove that an assignment is binding only in the state where it is executed. The counsel altogether mistake the true state of the question. Le Chevalier vs. Synet has already been shewn not to affect the present case. The question there was, whether a party, who had been once compelled to pay money by the judgment of a court of competent jurisdiction, should be compelled to pay it over again. That is not the question before this court. The court is requested to decide this cause between citizens of Maryland, according to the laws of their own state.
    Fraud, it is admitted, vitiates in every country the contract to which it attaches-that is, where the fraud is actual or inherent, as contra-distinguished from legal : the first is positive, the other varies with the varying institutions of different communities, and is constructive. For example, in tho case in question, if Stevenson, who has conveyed property to the amount of mealy half a million, and purporting to be all he possessed had concealed any portion of his effects, the fraud would have been positive, as respected that portion ; and any of his creditors might have resorted to it, as they can to his person, or property acquired after the assignment. Again, by the laws of this state, a debtor is incapacitated front making “ any alteration in the situation of his creditors, by acts of security or preference, as much to the period of his being able to pay his debts, as to the time of his committing such acts as would, by the bankrupt laws of England, amount to acts of bankruptcy.” 3 Martin, 275 6, Brown vs. Kenner & al.-Therefore, “ acts of security or preference,” of this description, would be considered fraudulent, under our laws. But this is constructive fraud : because, as has been shewn. 2 Law Jour. 188, "there can he no doubt,” that at common law, and in Maryland, “ a man may pay all his property to one creditor, in discharge of a bona fide debt to the exclusion of all the others:” and this principle, as prevailing in other countries, is recognized in the case of Brown vs. Kenner & al. just cited, where it is said, that " the circumstance of insolvency alone,” under the bankrupt laws of England and the United States, "is not held sufficient to invalidate the transactions of a debtor with any of his creditors.”
   Mathews, J.

delivered the opinion of the court. On the part of the assignees, it is contended, that the deed of assignment is good and valid, according to the laws of Maryland, under which it was executed and the contract was made, and it ought to be enforced by the court of this state. To this end, they liken it to an assignment, made under the bankrupt laws of England, and cite adjudged cases from the courts of justice of that country, shewing how strictly and extensively they are carried into effect.

Were it necessary to a proper decision of this case, we are of opinion that it would not be difficult to shew such a difference between assignments, made at the mere will and pleasure of debtors, in which they attempt to lay down rules for the payment of their debts, and the distribution of their estates, and those, which are fairly executed under a commission of bankruptcy. as would require the application of principles almost totally different in different cases.

In assignments under a commission of bankruptcy, great pains are taken to discover and collect all the debtor's property. The assignees are chosen by the mass of his creditors, and the effect of the assignment is fixed by law. The, proceeds of the estate, are to be paid and distributed, according to established and known rules, But, in voluntary assignments by debtors, they chuse their own trustees, determine the manner in which their debts are to be paid, and too' often attempt to give illegal and unjust preferences.

These points we deem it useless now to discuss ; and it is believed that our decision must be directed by the principles of law recognized in the case of Dumford vs. Brooks’ syndics, 3 Martin, 222, 269.

The instrument by which the debtor undertakes to transfer his property to the trustees, must be considered as a contract between him and the persons entrusted with the execution of his intentions, in regard to the payment of his debts, and the distribution of his estate. If his conduct has been fair, and his intention honest, in this transaction, (which we do not undertake to decide) perhaps they have a right to hold the property, as far as it has been actually delivered to them, until they shall have fully executed the trust reposed in them, and creditors who may have assented to the terms of the cession would probably be bound by it. But the assignment can certainly have no greater effect, in relation to creditors not parties thereto, than a sale to a bona fide purchaser, which, unless accompa nied by delivery, does not fully divest the seller of his property, and leaves it subject to be seiz ed hy his creditors, according to the principles laid down in the above case.

The parties to the deed of assignment appear to have been aware ot the unposibility of transferring by it, a comptete dominion over such things as choses in action according to the common law of England; for we find in it a power granted to them to use the assignor's name, if necessary.

Upon the whole, we are of opinion, that the property attached, not having been delivered to the trustees, has been regularly subjected to the navrnent of the debt of the attaching creditor.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed. wilh costs. See Norris vs. Mumford 4 Martin, 20.  