
    [Philadelphia,
    December, 1824.]
    PASSMORE and another against ELDRIDGE and others, Assignees of BROWN.
    IN ERROR.
    If a debtor assigns his property to a creditor, in consideration of a debt really due, upon a secret trust that he shall receive a benefit, either by a return of part of the property, or a loan of it on beneficial terms, and the transaction taken altogether, has a direct tendency to protect the property of the debtor from his other creditors, the assignment is fraudulent and void.
    Where an assignment described certain property in so vague a manner, that it was impossible to say whether it was comprehended in the assignment or not, held, that a notice, before the interest of any third person had attached, to the person in whose hands the property was, given by one of the assignees, that the property had been assigned to them, by deed of a certain date, and requesting him to consider it for their use and subject to their order, to which was attached a writing signed by the assignor, “ I confirm the above,” though not an original appropriation, amounts to a declaration, identifying the property intended to pass by the deed; and that therefore, it was error to instruct the jury, that such a paper was no more than a construction, by the parties, of the original assign, ment, and of no more weight than that of any other person.
    Writ of error to the District Court for the city and county of Philadelphia, in' an action brought by Joseph M. Eldridge and others, assignees of William Brown, an insolvent debtor, intrust for his creditors, under the insolvent law of Pennsylvania, against Passmore and Sparhawk, auctioneers of the city of Philadelphia4 for the recovery of the proceeds in a quantity of hides, placed in the hands of the defendants for sale, by the said William Brown. The defendants were but stake holders, the real dispute being between the plaintiffs and William and Vincent Robinson, who claimed by a deed from Brown, prior to his discharge under the insolvent law. The plaintiffs gave notice to the defendants of their right to the hides, and warned them not to pay the proceeds to any other person. The deed from Brown to the Robinsons, was dated July 31st, 1818, and was expressed to be for the purpose of securing to the Robinsons, payment of all such sums of money as Brown owed to them respectively, and all such other sums as they, or either of them, might pay, on account of notes endorsed, or obligations entered into for the use or benefit of Brown; and conveyed to the said Robinsons, certain goods, chattels, debts, and effects, enumerated in an inventory annexed to the said deed; in trust, that the said Robinsons should, with all convenient speed, collect the said debts and sell the said goods and chattels, at public or private sale, for the best price that could be got, and, in the first place, pay all sums of money in which Brown was then indebted to the Robinsons, or/either of them, and all such sums as they or either of them might thereafter pay, on account of endorsed notes, or obligations as aforesaid, and return the surplus, if any, to Brown. In the inventory, a number of articles of household furniture, &c. were specified; but there was a large quantity of hides, of which no other description was given, than that they amounted to a certain number of pounds’ weight, and part of them were in the vats. On the trial of the cause, the plaintiffs contended, that the hides placed by Brown in the hands of the defendants, were not included in his deed to the Robinsons; and, if they were, they did not pass to them, because the deed was fraudulent and void, so far as respected the general creditors. The defendants gave in evidence a written paper, addressed to them by Vincent Robinson, dated the 5th of August, 1818, by which they were informed, that by an assignment dated the 31st of July, 1818, Brown had transferred to William and Vincent Robinson, all the property placed by him in the hands of the defendants for sale, and requesting that the defendants would consider the same for the use of the said William and Vincent Robinson, and subject only to their order. Underneath this writing, was another writing, in the words following, — “ I confirm the above,” (signed) William Brown. There was some evidence given, from which the plaintiffs endea-deavoured to satisfy the jury, that the deed from Brown to the Robinsons, was given on a secret trust, that part of the property should be restored to Brown, or that he should have a loan of it, on advantageous terms. Nothing of this kind appeared on the face of the deed, and it was proved that, prior to the execution of the instrument, counsel was consulted, who informed the parties that such an arrangement could not legally be made. The court charged the jury, “that if the assignment to the Robinsons was made, though in consideration of debts due to them, on condition that Brown should receive a benefit, either by a return of part of the property, or a loan of it, on beneficial terms, it was fraudulent and void.” And, that “ The paper signed by Robinson and Brown, dated the 5th of -August, 1818, did not amount to an original appropriation of the property referred to; it was making but a construction of the original assignment, and their construction was no more evidence than that of any other person.”
    To this charge the counsel of the defendants excepted, and, on the removal of the record to this court,
    
      Randall and J. R. fngersoll assigned for error,
    1. That the charge declares, that a general assignment is void, if made upon consideration of any benefit to the assignor, growing out of the property assigned. In support of this exception, they oited, Burd v. Fitzsimmons, 4 Dali. 76. Estwicle v. Caillaud, 5 T. Rep. 420. Nunn v. Wilsmore, 8 T. R. 521. Meux v. Howell, 4 East, 13. Wheaton v. Sexton, 4 Wheat. 503. Marhoy v. Brooks, 7 Wheat. 565. Wittes v. Ferris, 5 Johns. 344. Riggs v. Murray, 15 Johns. 583. Wilt v. Franklin, 1 Binn. 502. Lippincott v. Barker, 2 Binn. 174. M‘Allisterv. Marshall, 6 Binn. 338. Downing v. Kintzing, 2 Serg. & Rawle, 326.
    2. That the court declared, that an instrument of writing in the nature of an order drawn by the owners of property upon the person with whom it was lodged, does not amount to a transfer or appropriation of the property, or evidence of it. Clemson v. Davidson, 5 Binn. 39S. Row v. Dawson, 1 Vez. sen. 331. Yeates v. Groves, 1 Vez. jr. 281. Peyton v. Hottet, 1 Caines, 363. MiMenomy v. Ferrers, 3 Johns. 71. Crocker v. Whiting, 10 Mass. Rep. 318. Dunn v. Snell, 15 Mass. Rep. 481. Troup v. Wilson, 2 Cowen, 228.
    
    
      3. That the court declared, that the construction put on the assignment by the grantor, was no more evidence against the plaintiffs, than the construction of any other person; although, as the. plaintiffs claimed under the grantor, any act or declaration of his, previous to the assignment, is as binding on the plaintiffs, as it would have been on the grantor himself, Mitford v. Mitford, 9 Vez. 100, 2 JLth. 162. Murray v. Lilburn, 2 Johns. Ch. Rep, 443. Clason v. Morris, 10 Johns. 540. Wain’s Assignees v. Bank of North America, 8 Serg. & Rawle, 88.
    
      Lowber and Broom, for the defendants in error,
    cited, to the first point, Long on Sales of Personal Property, 64, {Am. Ed.) Martin v. Pewtress, 4 Burr. 2477. Jackson v. Duchaire, 3 T. Rep. 551. Cadogan v. Kennet, Cowp. 432. Reichart v. Castator, 5 Binn. 109. Shannon v. The Commonwealth, 8 Serg. & Rawle, 444.
    In answer to the third error assigned, they referred to Clow v. Woods, 5 Serg. & Rawle, 282.
   TilghmaN, C. J.

(after stating the facts, and the first part of the charge,) delivered the opinion of the court, as follows:

This charge was excepted to by the defendant’s counsel, as going too far, because there is nothing illegal, or unfair, in the debtor’s stipulating for some terms to his own advantage, provided he conveys his property to one of his creditors, for a valuable and adequate consideration, and the creditor is willing to relinquish part of the property so conveyed.

The charge is to be considered as applied to the evidence, and not as a general abstract proposition, that all conveyances are void, by which any benefit is granted to the debtor. The stat. 13 Elis, c. 5. makes void, “all feigned, covinous, and fraudulent conveyances, bonds, suits, judgments, and executions, which were devised and contrived of malice, to the end, purpose, and intent, to delay, hinder, or defraud creditors, and others, of their just and lawful actions, suits, debts,” &c. N.ow, in the present instance, consider the nature of the conveyance. There is no objection to it, on account of the preference given to the Robinsons ; because, where there is río bankrupt law, a debtor has a right to give a preference to any creditor. But, a difficulty is thrown in the way of ■other creditors, by the vague description of the hides; for it is impossible, by any examination of the deed, or inventory, to identify them — part was in the vats; but what part was there, and where the rest were, are left to conjecture. There is no intimation, on the face of the deed, of the reservation of any part for the benefit of the debtor; therefore, if there was any agreement for such reservation, it was secret; at least, it was not disclosed in such a manner, that the other creditors could come to the knowledge of it, by inspection of the writing. In what a situation, then, are they placed? If one of them lays an execution on the hides, the deed is produced, by which they are protected; and yet the debtor, by this private agreement, is entitled to part of them. What is this, then, but a collusion between the debtor, and a preferred creditor, to protect the property of the debtor, from the executions of other creditors ? It falls directly within the words and spirit of the statute of 13 Eliz, But, it is said, that other creditors had no concern in the property conveyed by this deed, because its whole amount was not equal to the debt due to the Robinsons. In answer to this, however, it is to be observed, that, at the time of executing the deed, it was supposed by the parties that there might be a surplus, because that event is provided for. Another circumstance of some weight, is, that counsel having been consulted, before the drawing of the deed, the parties were told, that any attempt to reserve part of the property, for the benefit of the debtor, was illegal. And if, after this advice; such reservation was omitted on the face of the deed, but bargained for by a private agreeement, it certainly was indicative of an intent which would not bear the light. I say, if it toas so agreed; for whether it was or not, is unknown to me. That was a fact for the consideration of the jury, to whom it was submitted by the court. The question is, whether the charge was correct, in instructing the jury, that the deed was void, if there was a private agreement for the benefit of the grantor; and I ant decidedly of opinion, that in such instruction the charge was right, because the transaction, taken altogether, would have a direct and strong tendency, to protect the property of the debtor from his other creditors.

But exception was taken to another part of the charge; viz. that the paper signed by Robinson and Brown, dated the 5th of August, 1818, did not amount to an original appropriation of the property referred to — it was making but a construction of the original assignment, and their construction was no more than that of any other personThat this paper did not amount to an original appropriation, I agree. It does not purport to be any such thing. It is no more than a notice from the Robinsons, confirmed by Brown, that the property in the hands of the defendants had been conveyed by Brown to the Robinsons, by an assignment, dated on the Slsi of July, 1818. This is first declared, by one of the Robinsons, on behalf of both; after which, Brown says, he confirms the above ; that is, he declares, that what had been said above, was true. But, when it was afterwards given in charge to the jury, that this writing was no more than a construction of the assignment of the 31st of July, ISIS, and of no more weight than the construction of any other person, I think there was a material error. The assignment of the 31st of July, described these hides in so vague a manner, that it was impossible to say, whether they were comprehended in it. Then it certainly was in the power of the parties, to identify them, by a subsequent declaration, before the right of any third person had attached. The writing of the 5th of August amounted to such a declaration; and so the jury should have been instructed. As the charge was given, the jury might have doubted, whether the assignment included the property in dispute; and, for aught we know, the verdict may have been founded on the opinion, that the defendants had failed in making out that part of their case. But, be that as it may, I am of opinion, that there was error in instructing the jury, that the writing of the 5th of Avgust .was no more than a construction of the assignment, and of no greater effect, from the mouths of the parties to that instrument, than from those of any other person. The judgment is, therefore, to be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  