of meditated fraud, in any part of the transaction. But the motive, 1802. and the effect, of setting this deed aside, will be to prefer the exclusive claim of an individual judgment creditor, to the distributive claims of the general creditors; so that by paying him the whole of his debt, they will be deprived of every part of their debts. I think it, therefore, a duty, by every legal and rational presumption, to support, if possible, the deed of trust; and I find no difficulty, in pronouncing it, in the first place, to be a valid deed.

2d. I am, likewise, of opinion, that the deed took effect from its date. It was susceptible of an honest execution; and it has, in point of fact, been honestly executed. But an honest execution, might have been enforced, if there had been any disposition to evade it. One of the trustees drew the deed, and his name is inserted in it. This was such evidence of an acceptance of the trust, as would be sufficient, with respect to that trustee at least, to enable the creditors to compel him to perform it.

If the deed were framed for an unlawful purpose, or if, in its operation, it must necessarily introduce, dishonest and fraudulent consequences, it ought to be set aside. But this admission does not affect its validity, merely because it tended to delay some creditors. The motive of the party must be weighed. If a deed, which delays and hinders a creditor, is made upon selfish interests, or upon a mere impulse of benevolence, it is within the statute: Lut a deed made upon a principle of equal justice to all creditors, however it may intercept the views of a particular creditor, is good, in law, equity, and conscience.

I cannot persuade myself to think, that a deed formally made, with such honourable views, can be destroyed by the extrinsic considerations, that the grantor appointed the trustees; that there was no general assent of creditors to the trust; or that a schedule of the creditors was not annexed. And as to the reservation of a contingent interest, or use, for the grantor, it is enough to remark, that it arose out of the nature of the transaction; that it could not take place, but by the negligence of the creditors themselves; and that any attempt of the trustees to favour the grantor improperly, or dishonestly, would be defeated by the powers of a Court of justice.

Upon the whole, therefore, my voice is for affirming the judgment of the Supreme Court.

COXE, Justice. I have been led to consider the case, with a double aspect, to ascertain, 1st. Whether the deed is, in itself, a good legal conveyance? And, 2d. Whether the trust created by the leed is such as a Court of equity would support?

1st. We are bound by the facts stated in the case, or special verdict; and there, (independent of the deed itself) no allegation, or suggestion, of fraud can be discovered. Consider the transac

1802. tion in its progressive steps. The very execution of the deed, (which the case states) imports a delivery; and as the fact is not contradicted, it is a necessary legal presumption, that there was a delivery. The subsequent acknowledgment of the execution, is not inconsistent with this presumption; because it is an acknowledgment before a magistrate, of a previous delivery, for the purpose of placing the deed on record. The pecuniary consideration, though a nominal, is a legal consideration; and this is fortified by the equitable consideration, for which the deed was made, a payment of debts. Then, the acceptance of the trust, to execute it, is, likewise, a matter of legal presumption, from the delivery of the deed to the trustees; and, indeed, any other evidence of acceptance, is seldom to be obtained.

Still, however, the great question recurs: is the deed on the face of it, a fraudulent, or a bona fide, conveyance? A candid and just interpretation of the trust must enable us to decide. It is true, that the trustees derive from the deed a power to sell the property, as they deem most adviseable; but this is a discretion to be exercised, expressly, for the general interest of the creditors. It is true, that the trustees are only authorised to distribute the fund, among the creditors, who shall agree, in writing, within nine months, to accept their shares; but the exclusion from a share must be the act, or omission, of the creditor himself. It is true, that the shares of the non-assenting creditors are to be paid to Mr. McClenachan; but even this payment is to be made, "to "the intent that he may therewith, and thereout, compound with, "and satisfy such creditors." These provisions, however, are the principal sources of objection to the deed itself, as inherent badges of legal fraud. But are there not, on the other hand, unequivocal marks of a fair and lawful trust, that must, at once, obviate and remove such slight and doubtful causes of suspicion? In the first place, there is an equal distribution of all the property conveyed, ainong all the creditors. In the next place, there is no stipulation for a release in favour of the grantor. And, finally, the creditors, notwithstanding the acceptance of a share in this fund, are left free to pursue every legal remedy, for the recovery of a full satisfaction, against the person, as well as against any other property, of their debtor. It is not to be denied, that the conveyance was made for the very purpose of hindering the lien of future judgments and executions upon the trust property; or, in other words, to preserve the property for an equal distribution among the creditors, instead of leaving it exposed to the priority of judgment creditors alone: but so far from vitiating the deed, so far from justifying the imputation of fraud, this motive has been considered at the bar (and so I consider it) as the best foundation, in law and equity, for the trust. There is no positive statute, there is no rule of the common law, there is no principle of equity, to be traced in the Code of England, or of Penn

sylvania,

sylvania, that would warrant us in declaring this deed void, upon 1802. such a view of its intention, and its effect.

I will consider, however, more particularly, some of the additional objections, that have been made to the validity of the deed, by the counsel for the plaintiff in error. 1st. It is said, that the trust is general: but both in the manner, and in the time, of exccuting it, the trustees must act conscientiously, or they will incur a responsibility, as for a breach of trust. 2d. It is said, that the assent of the creditors, in writing, within nine months, is a condition precedent, to the investment of the trust. I am rather disposed, however, to treat it as a condition subsequent, for obvious reasons. The legal title passed on the execution of the deed, and the trust immediately attached to the estate. The assent of the creditors must, to be sure, be given afterwards, in order to entitle them to distributive portions of the fund; but how is the assent to be made a condition precedent, in relation to the legal cstate, and the trust, both of which were previously established? The trustees might have sold the property, immediately after the execution of the deed, before any assent declared; and as to a declaration of assent in writing, this has always been regarded as a non-important part of the proceeding. 3d. It is said, however, that there should, in some form, be an assent of the creditors to the trust, in order to render it valid. A difficulty seems here to have arisen from confounding the particular assent, required by the deed to share in the trust fund; and the presumed assent in law, from the date of the instrument: for, whenever a trust is raised for creditors, their acceptance of it is a legal presumption. Nothing remained in M'Clenachan from the execution of the deed, but a mere contingency; and even that contingency, depended entirely upon the act of the creditors. Until the trust was defeated, no judgment, or testatum execution, could affect the property; and, consequently, if it was a good subsisting trust on the 2d of September 1797, it was good against all subsequent liens. 4th. It is said, that there was not a schedule of creditors annexed to the deed; but although this may be convenient to the execution of the trust, it does not appear to me to be essential to its validity. The trustees might easily have supplied the want of it, by calling a meeting of the creditors. And the nine months allowed for declaring their assent, and making a distribution, seems but a reasonable period, considering the dispersed state of the debts. 5th. It is said, that the payment of the shares of nonassenting creditors to M'Clenachan, placed them at his mercy; but suppose the objection to this part of the deed should be well founded, does it follow that the whole deed is void? Shall all the assenting creditors be deprived of their interest, because the dissenting creditors have produced a dilemma, in the appropriation of a part of the trust fund? I would rather say, that the trust is bona fide and operative, as to the assenting creditors; but void

1802. in its modification, as to the shares of the dissenting creditors. 5 T. Rep. 432. 4.

2d. It is my opinion, likewise, that the trust, created by this deed, would be supported and enforced in a Court of equity. A condition subsequent (as I consider the assent in writing of the creditors to be) is seldom literally enforced in a Court of equity; which looks only to the substance of the trust. For instance, either by negligence, or owing to the public calamity of the yellow fever, three months elapsed before the deed of trust was advertised; but Chancery (where time, not being the material point, is often enlarged) would not allow this period to be lost to the creditors. It is not probable, therefore, that there would be an outstanding creditor, in such a case, as the present; and, at all events, so remote a probability ought not affect the decision. A Court of equity could, I think, mould all the powers and forms of the trust, so as to do complete justice to the parties. And what a Court of equity would do, the Judges of Pennsylvania, deciding upon a subject of equity jurisdiction, are in the uniform practice of doing.

For these reasons, I am of opinion, that the judgment of the Supreme Court, ought to be affirmed.

By the COURT, however,

Let the judgment be reversed:

OF

ERRORS AND APPEALS

OF

PENNSYLVANIA.

January Session 1804.

Present CHEW, President of this Court.

RUSH,
RIDDLE,
HENRY, and
ROBERTS,

}

Presidents of the Circuits of Common
Pleas.

Lea, Executrix, et al. versus Yard.

Hazlehurst et al. versus Dallas, Secretary of the Com-. monwealth.

ORROR from the Supreme Court of Pennsylvania. These actions depended, chiefly, on the same facts, and principles; and were argued together, both in the Supreme Court, and in this Court. The facts were these:

John Chaloner was appointed an auctioneer for the city of Philadelphia, on the 1st of August 1791, and gave a bond to the secretary of the commonwealth, in the penal sum of 2000, with two sureties, namely, Leonard Dorsey, and Thomas Lea, who are both since dead. Richard S. Footman was, also, appointed an auctioneer on the 9th of June 1795; and gave a similar bond, with Isaac Hazlehurst, and John D. Coxe, as his sureties. The. conditions of the bonds were of the following tenor:

In Chaloner's case: "Whereas the above bounden John Chalo"ner was on the first instant re-appointed auctioneer, with au"thority to make sales by auction at any place or places within

"the