Scott v. Lunt. the rent; and by the grant of the rent, the penalty and advantage well passed. But if it had been a mere possibility, not coupled with any other estate, then it had not passed. This case is full to the purpose, that such a right or security is capable of being transferred, with the rent, by apt words; and when so transferred, gives the assignee a legal title both to the rent and the attendant remedies. It leaves, however, the point untouched, whether the mere transfer of the rent, without any transfer of the right of entry (as in the present case), would give the assignee a right to maintain an *606] action for the rent, seeing it is not knit by any privity of right or estate to the premises. Upon full consideration, however, we are of opinion, that the assignee of a fee-farm rent, being an estate of inheritance, is, upon the principles of the common law, entitled to sue therefor in his own name. It is an exception from the general rule, that choses in action cannot be transferred; and stands upon the ground of being, not a mere personal debt, but a perdurable inheritance. Thus, if an annuity is granted to one in fee, although it be a mere personal charge, yet a writ of annuity lies therefor, by the common law, not only in favor of the party and his heirs, but of their grantee. So the doctrine is expressly laid down by Lord COKE, Co. Litt. 144 b, and he is fully borne out by authority. (a) And in like manner, for a rent granted in fee, and charged on land, a writ of annuity also lies in favor of the assignee, at his election. (b) And since the statute of 32 Hen. VIII., c. 34, covenants of this sort, running with the estate or inheritance, are transferrible to the assignee, with a full right of the benefit thereof. So that there is no difficulty, upon principles of the common law, in giving effect to the present action. Whether the present plaintiff has any right to re-entry is a very different question, upon which, in the present posture of this case, it is unnecessary to give any opinion. It is clear, by the common law, that a right of re-entry always supposes an estate in the party, and cannot be reserved to a mere stranger. So the law was laid down by the twelve judges, in Smith v. Packhurst, 3 Atk. 135, 140; and Lord Chief Justice WILLES, on that occasion, in delivering their opinion said, "therefore, I have always thought, that if an estate is granted to a man, reserving rent, and in default of payment, a right of entry was granted to a stranger, it was void." What effect the statute of 32 Hen. VIII., c. 34, or the provisions of the revised code of Virginia, may have upon this point, is a ques tion not now before us. *607] We proceed, then, to the consideration of the bill of *exceptions. Two instructions were prayed by the plaintiff, and one by the defendant. The latter was given by the court, and with reference to the state of the pleadings, we see no objections thereto. The difficulty is in the refusal of the second instruction prayed by the plaintiff; it is as follows: "The plaintiff prayed the court to instruct the jury, that the time at which the re-entry ought to be made, depended upon the lease given in evidence by the plaintiff as aforesaid, and could not be varied by the evidence given as aforesaid by the defendant; and that if they found that a re-entry had (a) See Co. Litt. 144 b, Hargrave's note 1; Gerrard v. Boden, Hetley 80; Mound's Case, 7 Co. 28 b; 1 Thomas' Co. Litt. 448, note f, and 449, note 9; Bac. Abr. Annuity, C.; Com. Dig. Annuity, E. (b) Co. Litt. 144 b. Brashear v. West. been made, it ought to be such as would conform to the deed; and that a mere occupation of the premises by a landlord or his agent, or the receipt. of rents of the premises, did not of themselves amount to a re-entry." The court refused to give the instruction, being of opinion, that it was competent for the said Schofield, the actual tenant, to waive any of the formalities required by law for his benefit. case. Now, however correct may be the opinion of the court of this right of waiver, upon general principles, still the question is, whether, with reference to the actual terms of the pleadings and issue before the jury, the instruction prayed for was not such as ought, upon principles of law, to have been given. It is wholly immaterial, whether the pleadings might not have been so framed upon the facts, as to have presented a complete defence to the action; the instruction prayed has reference to the pleadings in the The averment there is, that the plaintiff entered on the premises, under and by virtue of the condition of re-entry in the original deed mentioned, for non-payment of the rent; and upon the issue joined, this was the material inquiry. It is clear, that, upon such an issue, no entry not conforming to that deed, and no evidence of an entry varying from it, would be admissible to support it. The sufficiency of the evidence before the jury to support the issue was properly left for their consideration. But the defendant had a right to the instruction, that the proof must conform to the allegations in the pleadings. For these reasons, we are of opinion, that the circuit court erred, in refusing the above instruction; and the judgment must, on this account, be reversed and a venire facias de novo be awarded. Judgment reversed. *WALTER BRASHEAR, Appellant, v. FRANCIS WEST, THOMAS M. [*608 WILLING and HENRY NIXON, Executors of JOHN NIXON, deceased, and HENRY NIXON, SAMUEL MIFFLIN and JOHN LAPSELEY, Assignees of FRANCIS WEST, Appellees. FRANCIS WEST, HENRY NIXON, Surviving executor of JOHN NIXON, deceased, and HENRY NIXON, SAMUEL MIFFLIN and JOHN LAPSELEY, Assignees of FRANCIS WEST, Appellants, v. WALTER BRASHEAR, Appellee. Assignment for the benefit of creditors.- Conflicting equities.-Foreign attachment. It is not necessary to the validity of a deed of assignment for the benefit of creditors, that creditors should be consulted; though the propriety of pursuing such a course will generally suggest it, when they can be conveniently assembled; but be this as it may, it cannot be necessary, that the fact should appear on the face of the deed. That a general assignment of all a man's property is per se fraudulent, has never been alleged in this country; the right to make it results from the absolute ownership which every man claims over that which is his own.1 An assignment was made by Francis West, to certain trustees, of all his property, giving a pref erence to particular creditors, who were to be paid their claims in full, before any portion of the property assigned was to be divided among his other creditors. The preference given in this deed to favored creditors, though liable to abuse, and perhaps, to serious objections, is the Mayer v. Hellman, 91 U. S. 496; Reed v. McIntyre, 98 Id. 509-10. Brashear v. West. exercise of a power resulting from the ownership of property, which the law has not yet restrained; it cannot be treated as a fraud. The assignment excluded from the benefit of its provisions, all creditors who should not, within ninety days, execute a release of all claims and demands on the assignor of any nature or kind whatsoever. This stipulation cannot operate to the exemption of any portion of a debtor's property, from the payment of his debts; if a surplus should remain, after their extinguishment, that would be rightfully his; should the fund not be adequate, no part of it is relinquished; the creditor releases his claim only to the future labors of his debtor. If this release were voluntary, it would be unexceptionable; but it is induced by the necessity arising from the certainty of being postponed to all those creditors who shall accept the terms, by giving the release; it is not, therefore, voluntary; humanity and policy both plead so strongly in favor of leaving the product of his future labors to the debtor, who has surrendered all his property, that in every commercial country known to the court, except our own, the principle is established by law; this certainly furnishes a very imposing argument against its being denied. The objection is certainly powerful, that it tends to delay creditors; if there be a surplus, the surplus is placed, in some degree, out of the reach of those who do *not *609] sign the release, and thereby entitle themselves under the deed; but the property is not entirely locked up; a court of equity, exercising chancery jurisdiction, will compel the execution of the trust, and decree what may remain, to those creditors who have not acceded to the deed. Yet the court are far from being satisfied, that upon general principles, such a deed ought to be sustained. Whatever may be the intrinsic weight of objections to such assignments, they seem not to have prevailed in Pennsylvania; the construction which the courts of that state have put on the Pennsylvania statute of frauds, must be received in the courts of the United States.? The assignment transferred to the assignees a debt due to the assignor by the complainant; the complainant filed a bill against the assignees, claiming to set off against the debt assigned to them, the amount of a judgment obtained by him against the assignor, after the assignment. If, subsequent to the assignment being made, and before notice of it, any counter-claims be acquired by a debtor to the assignor, these claims may, unquestionably, be sustained; but if they be acquired after notice, equity will not sustain them. If it were even true, that they might have been offered in evidence, in a suit at law, brought in the name of the assignor, he who neglected to avail himself of that advantage, cannot, after judgment, avail himself of such discount, as plaintiff in equity. To deprive a party of the fruits of a judgment of law, it must be against conscience that he should enjoy them; the party complaining, must show that he has more equity than the party in whose favor the law has decided. Construction of the laws of Pennsylvania relative to foreign attachments. APPEALS from the Circuit Court of Kentucky. These cases were argued by Bibb, for the appellant, Walter Brashear; and by Sergeant and Peters, for the appellees. MARSHALL, Ch. J., delivered the opinion of the court. These are appeals from a decree pronounced in the court of the United States for the seventh circuit and district of Kentucky, on a bill filed by Walter Brashear, on which an injunction was awarded to stay proceedings on two judgments obtained against him in that court, by Francis West. The final decree perpetuated the injunction as to the sum of $4011.68, the supposed *amount of a judgment obtained against the complainant, as special *610] 1 The hindrance and delay to particular creditors, in their efforts to reach, before others, the property of the debtor, that may follow such an assignment, are regarded as unavoidable incidents to a just and lawful act, which in no respect impair the validity of the transaction. Mayer v. Hellman, 91 U. S. 500; Reed v. McIn tyre, 88 Id. 510. In Pennsylvania, such preference is now void, by statute, but the assignment is good. Law v. Mills, 18 Penn. St. 185; Wiener v. Davis, Id. 331; Bittenbender v. Sunbury and Erie Railroad Co., 40 Id. 269; Miners' Bank's Appeal, 57 Id. 198. Brashear v. West. bail for West, and dismissed the bill as to the residue, with ten per cent. damages thereon. Both parties have appealed to this court. Francis Brashear, the plaintiff, a resident of Kentucky, being in Philadelphia, executed two notes, on the 28th of February 1807, to Francis West, a citizen of Philadelphia, for $3527.82 each, payable fifteen months after date. On the 13th of July 1808, he executed a paper writing, in Kentucky, acknowledging the balance of an account due from himself to West amounting to $2147.76. The two notes, executed in February 1807, were assigned, soon after their date, to John Nixon, of Philadelphia, as collateral security for a debt due from West to him. On the 21st of April 1807, West assigned all his estate to trustees, to be sold, and the money paid, first, to certain preferred creditors, and afterwards, to his creditors generally; with a proviso, that no creditor should be entitled to receive any dividend, who should not, within ninety days from the date of the deed, execute a release of all claims and demands upon the said Francis West, of any nature or sort whatsoever. The plaintiff was also indebted to James Latimer, of Philadelphia, to whom he consigned a quantity of ginseng, with instructions to pay the proceeds, after discharging his own debt, to certain other creditors of the consignor, pro rata. On the 10th of December 1808, James Latimer, to prevent other creditors, as he alleges, from obtaining a prior lien on the property in his hands, sued out a foreign attachment against the effects of Brashear, summoning himself as garnishee, and requiring bail in the sum of $8000. He gave immediate notice of this proceeding to Brashear. Early in the year 1809, he took a large part of the ginseng to himself, as purchaser, at six months credit; which he shipped, on his own account, to China, in March of that year. In the following May, he shipped the residue, on account of himself and William Redwood. On the 11th of March 1809, Francis West sued out a foreign attachment, to the use of his assignees, against Brashear, and *summoned Latimer as garnishee. The process was executed the 7th of April. On the [*611 23d of September 1809, an attachment was sued out by Nixon's executors, which was returned executed, on the 9th of October. The attachments sued out in the name of West, by his assignees, and by Nixon's executors, were prosecuted to judgment. In August 1811, James Latimer became insolvent, and assigned all his property for the benefit of his creditors. His debt to Brashear amounted to $4985.35; no part of which could be collected, his whole estate being absorbed by preferred creditors. Suits were instituted, in the name of Francis West, on the notes assigned to John Nixon, and on the acknowledged account herein-before mentioned, in the circuit court of the United States for the district of Kentucky, and judgments obtained thereon. A bill was filed by Walter Brashear to be relieved from these judgments. The bill alleged, that the assignment to Nixon, and also that to Mifflin and others, trustees for general creditors, were fraudulent and void. It also alleged, that in September 1808, the plaintiff had become special bail for the said Francis, in a suit instituted against him in one of the courts of Kentucky, by a certain George Anderson, in which judgment was obtained against him, and afterwards against the plaintiff, as his special bail, for the sum of $4011.68. That on the 3d day of November 7 PET.-25 385 Brashear v. West. 1808, the said Francis West received for the plaintiff $120, from the commissioner of loans in the city of Philadelphia, on account of the claim of William Bush; to which the plaintiff was entitled. And the said Francis West was responsible for the money lost by the plaintiff, in the hands of James Latimer; that loss having been caused by the attachments sued out to attach his effects in the hands of the said Latimer, and by the negligent and illegal manner in which the said attachments were prosecuted. The answers admit, that the assignment to Nixon was made for the purpose of securing a debt due to him, amounting to *rather more than *612] $2000. They insist, that the assignment to Mifflin and others, for the benefit of the creditors of West, was fair and legal; and that Brashear had notice of it, before he became special bail for West, at the suit of Anderson. They contend, that the attachments were legal, and were conducted. regularly, and without fraud. James Latimer, who was sworn as a witness, deposes, that he shipped part of the ginseng, on his own account, before the attachments were laid by the assignees of West; and that he shipped the residue, after the attachment sued out by Mifflin and others, trustees for the creditors, had been served. He says, there was not any collusion, agreement or consent between the executors of Mr. Nixon, or the assignees of Mr. West and himself, that the property or money attached should remain in his hands, should be shipped abroad, or used or disposed of in any way, other than the consent of the assignees of Mr. West, that the ginseng might be sold; which consent was after their attachment, and before that of Mr. Nixon's executors; nor was there any consent on the part of the said assignees or executors, to any delay or procrastination of payment on his part. The court admitted and allowed the claim to a set-off for the money paid by the plaintiff, as special bail for West, at the suit of Anderson, but rejected the other claims. It is admitted, that Nixon's executors have no interest in the notes assigned to their testator, beyond the debt intended to be secured; and to that extent, their claim cannot be controverted. The suggestions made in the bills against it, are unsupported; and are denied in the answer. I. The first inquiry is, into the validity of the general assignment to Mifflin and others, trustees for the creditors of West. This instrument conveys to Samuel Mifflin, Samuel Lapseley and Henry Nixon, all his estate, real, personal and mixed, in trust to sell the same, as soon as conveniently may be, and to collect all debts due to the said West, and to pay and discharge the debts due from him, first, to certain preferred creditors, and afterwards, to creditors generally; "provided, nevertheless, that none of the above-described creditors shall be entitled to receive any part or dividend of the property hereby conveyed, or its proceeds, who shall not, within ninety days from the date hereof, sign and execute a full and complete *613] release of all claims and demands upon the said Francis West, of any nature or sort whatsoever." This deed was executed on the 21st day of April 1807, was acknowledged before the mayor of the city of Philadelphia, on the 22d, and recorded in the proper office of the city and county, on the 27th of the same month. Its validity appears never to have been questioned in the state of Pennsylvania. The objections made to it in argument are 1. That the creditors were not consulted. 2. That they do not appear to |