V. 1814. estate to any number of creditors whose debts were fairly M'ALLISTER equal to the estate, it would have been good, and those creditors might afterwards have done what they pleased with MARSHALL. it. But that is not the case. Who can say that the assignment would have been executed, without the agreement to reconvey a part? Very important consequences are involved in the decision of this cause. If the trust deed be supported, it will be an inducement for every insolvent debtor, to insist on a provision for his family. And he will accomplish his object, if he can but prevail on a number of creditors, who have debts equal to his whole estate, to accept his offer. There will not be wanting powerful motives to join in this scheme. Each creditor will reflect, that if he refuse he may lose every thing. What the law authorizes, he has no reason to think unjust or immoral, and then even honest men may fall into a practice, which, without any ill intention on their part, will be ratifying under the sanction of this Court a system of fraudulent bankruptcy. It is no satisfaction to the excluded creditors to tell them, that they have their remedy by actions against the defendant. Their actions are fruitless, because by the laws of Pennsylvania, every defendant who surrenders his property for the use of his creditors, is discharged from imprisonment. But his wife and children are not obliged to surrender their property. If then we decide that the property is legally vested in the wife and children, it will remain to them, and the head of the family will nevertheless be entitled to his discharge. These are the considerations which have induced me to be of opinion, that the assignment was void, so far as concerns those creditors who refused to accept it. Consequently the property in question, having never passed from Charles Marshall, was subject to the execution of the plaintiff, who is entitled to judgment in this ejectment. YEATES J. A legal objection has been raised to the plaintiff's recovery in this case, founded on his subscription in the sheriff's docket. He has paid only 140 dollars 69 cents, the amount of the costs of his action against Charles Marshall and Son, and retained in his own hands the amount of the purchase money. Suppose the amount of his debt and interest at the time of the execution of the deed to be 2962 1814. MCALLISTER v. dollars 93 cents, this sum added to the costs paid, there would remain 1896 dollars 38 cents to be paid by him out of the consideration money of 5000 dollars. I see no force in this objection. The sheriff has signed a receipt for the MARSHALL. purchase money, and has acknowledged the deed. He is therefore liable for the balance of 1896 dollars 38 cents, to the party who may lawfully demand it. Should the plaintiff succeed in the present instance, he would become responsible to the sheriff under his written engagement. But should he fail therein, there could be no reason whatever to charge him with the balance. It cannot be pretended, that while the wife and daughters of Charles Marshall hold and enjoy the premises in question, the purchaser at the sheriff's sale should, after losing his debt and costs, pay him the surplus of the purchase money. More serious difficulties, arising from the peculiar circumstances of this case, occur to our consideration. [His honour here particularly stated the facts.] The doctrine of assignments executed in favour of creditors by an insolvent debtor, has been much agitated, and has undergone the full consideration of this Court in the late cases of Wilt v. Franklin, 1 Binney 502, and of Lippincot v. Barker, 2 Binney 174, In the last case it was held by a majority of the Court, that an assignment by a debtor of all his property to trustees, for the benefit of such creditors as should within four months execute a release of all demands, was good, provided certain creditors agreed to accept it on that condition. I see no cause to recede from my opinion delivered in that case. I freely admit, that independently of the bankrupt laws, a debtor may prefer one set of creditors to another, and that such a measure would neither be illegal nor immoral. The present case goes much farther. From the internal evidence, which the two powers of attorney, the deed of assignment of the 14th February, and the release to the trustees of the next day, carry with them, independently of the circumstance of the two last deeds being attested by the same witnesses, I am constrained to conclude, that the assignment was made in full and perfect confidence, that Mrs. Marshall and her daughters should receive the provision contained in the release, and that this was the great leading motive to make the assignment. The 1814. v. creditors at their first meeting directed the assignees whom M'ALLISTER they had chosen, to report the measures best for themselves and also for Charles Marshall and Son. The powers of atMARSHALL. torney contemplate a compromise of mutual interest, and the proviso in the conclusion of the conveyance to the trustees, shews manifestly the sense of the parties on the whole transaction. I therefore consider the assignment and release, though purporting on the face of them to be made with an intervening day, as cotemporaneous acts depending on each other, and in fact as one instrument. Of course the question in my view of it is reduced to a single point, whether the assignment and release under these circumstances can legally bar such creditors as refuse to accede to those measures. It has been urged, that one or more creditors may legally accept of an assignment of the whole or any part of the estate of their debtor in payment of their demands, provided it does not exceed in value the amount of his or their debts; and that being so entitled, they may convey it to whom they think proper. This is not that case. The terms held out to the creditors are unreasonably hard and severe. Unless they would surrender up their undoubted individual right of judgment, and subscribe the letter of attorney, giving a carte blanche to the assignees, ratifying the trust for the wife and children of Charles Marshall, they are excluded from any participation of the dividends. This appears to me a species of compulsion. I have no doubt that the most humane feelings for an unfortunate family, induced this arrangement, but my moral sense imperiously dictates to me, that until the debts of the head of the family are paid, his relatives cannot justly entitle themselves to any portion of his property. The trust created by the assignees is certainly valid against the subscribing creditors, who by their subscription have assented to their acts. With their own property they might do as they pleased, and were under no control. But a composition made in order to exempt any part of the property from creditors, who might refuse their assent to the proffered terms, seems to me unavailing as to the dissenting creditors, and taints the whole transaction. Lippincot v. Barker was professedly decided by the majority of the Court under the peculiar circumstances of that case. From the facts here shewn, I am fully satisfied that a trust for 1814. the family of Charles Marshall was originally intended by MALLISTER many of the creditors, which I cannot conceive binding on those creditors who have been unwilling to authorize that MARSHALL. measure. I am not prepared to say, nor is it necessary that I should express an opinion, whether the humane views of the creditor might not have been effectuated in some other mode, or whether it could be done legally. The object of the assignment has ceased; the debts of the subscribing creditors have been fully released by their attornies in fact, constituted for that purpose with full and ample powers. Consequently the premises in question revested in the former owner as to non-subscribing creditors, and were liable to their execution. I am therefore of opinion that judgment be entered for the plaintiff, to be defeasanced by the payment of principal interest and costs of the two judgments entered for the plaintiff and John Erskine against the defendant, in conformity to the terms proffered by his counsel in the course of the argument. BRACKENRIDGE J. The following discourse which I have found amongst my papers, would seem to have some bearing on the case before us. It is part of a sermon from the 16th chapter of St. Luke's Gospel, beginning with the first verse. "There was a certain rich man, which had a steward, and "the same was accused unto him that he had wasted his "goods. And he called him and said unto him, how is it "that I hear this of thee? Give an account of thy steward"ship, for thou mayest be no longer steward. Then the "steward said within himself, what shall I do? For my lord "taketh away from me the stewardship. I cannot dig, to beg "I am ashamed. I am resolved what to do, that when I am "put out of the stewardship, they may receive me into their "houses. So he called every one of his lord's debtors unto "him and said unto the first, how much owest thou unto ❝our lord, and he said an hundred measures of oil. And he "said take thy bill, and sit down quickly, and write fifty. "Then said he to another, and how much owest thou? And he “said an hundred measures of wheat. And he said unto him, "take thy bill and write four score. And the lord commend 1814. MCALLISTER "ed the unjust steward, because he had done wisely; for the children of this world are in their generation wiser "than the children of light. And I say unto you, make you MARSHALL."friends of the mammon of unrighteousness, that when ye υ. "fail, they may receive you interverlasting habitations. "He that is faithful in that which is least, is faithful also in "much; and he that is unjust in the least, is also unjust in “much. If therefore ye have not been faithful in the un righteous mammon, who will commit to your trust the "true riches? And if ye have not been faithful in that "which is another man's, who shall give you that which is "your own? No servant can serve two masters; for either "he will hate the one and love the other, or else he will "hold to the one and despise the other. Ye cannot serve God "and mammon." "This steward was an insolvent man, who was unable "to pay over to his lord the monies which he had re66 ceived, and for which he had become his debtor. He "cast himself therefore about to settle the account in collu"sion with the debtors of his lord. The lord commended "the unjust steward, not it is to be presumed, because he <6 was unjust, but because he was necessitous. He had done "wisely" for that occasion, and not what the children of "light would do, but not more wisely for all times than the "children of light would do, for I will venture to say, his "lord would never trust him again. "In our day and in this generation, the children of this "world think themselves wise in defrauding their creditors, "and doubtless they exhibit no small share of worldly wis"dom in the devices to which they resort in accomplishing "that object. But my brethren, I take it there is but a shade "of difference in law, and none at all in conscience, between, "highway robbery and the compelling a creditor to take "less than his due, at the same time that by any contri"vance, or as the lawyers call it, shift, or chevisance, you "save something for yourself." So far the divine. Would not the moralist say the same thing? For what is religion but morality, with a sanction drawn from a future state of rewards and punishments? Would not the jurist say the same? For what is law, but the enforcement of justice amongst men? The reddere suum cuique is the definition of justice. Would not the politician |