[Scott v. Lunt's Administrator.] indenture assigning over the rights, powers, and remedies, given by the former indenture, by distress and re-entry, or the residuary interest in the premises resulting from such re-entry. Turner, by another indenture, on the 25th of February, 1808, assigned [*604 and granted the same rent unto the plaintiff (Scott,) his heirs and assigns, with the powers of distress and re-entry, and all the covenants and stipulations in the original indenture. But it is manifest, that he could not convey them, unless he had already taken them under the assignment made to him by the executors. The declaration too is founded solely upon the assignment and transfer of the rent, and contains no allegation of any assignment of the collateral rights and remedies and interests in the estate. Under these circumstances, it is contended, that whatever might be the fate of the bill of exceptions, if the action were otherwise unobjectionable, the plaintiff, upon his own showing, has no title to recover: first, because the rent is a mere chose in action, which cannot be transferred by itself to the assignee, so as to entitle him to sue therefor in his own name: and secondly, because no suit is maintainable against the defendant, as administrator, for the rent in arrear since Lunt's decease, as there is neither privity of estate, nor of contract, between him and the plaintiff. It is added, that Lunt, in fact, in his lifetime, assigned over his estate in the premises, and that his administrator is not responsible for any rent subsequently accruing and in arrear. But this fact nowhere appears upon the pleadings: and if it did, it would not help the defendant: for it is firmly established, that upon a covenant of this sort, the personal representatives of the covenantor are liable for the non-payment of the rent after assignment, although there may also be a good remedy against the assignee (a). The laws of Virginia have not, in this respect, narrowed down the responsibility existing by the common law in England, at the emigration of our ancestors. Whether the plaintiff as assignee of the rent, not being assignee also of the estate, in the premises, or of the right of re-entry, can maintain the present suit, is quite a different question. If he had been the assignee of the estate, or of the right of re-entry, as well as of the rent, he would clearly be entitled to maintain [*605 it; for the laws of Virginia are in this respect co-extensive with those of England. The common law of England, and all the statutes of parliament, made in aid of the common law, prior to the fourth year of the reign of king James the first, which are of a general nature and not local to the kingdom, were expressly adopted by the Virginia statute of 1776 (b); and the subsequent revisions of its code have confirmed the general doctrine on this particular subject. The very point was decided in Havergill v. Hare, Cro. Jac. 510. There A. being seised of an estate, in fee, by indenture granted to B. his heirs (a) See Comyn's Dig. Covenant, C. 1. Bacon, Abridg. Covenant, E. 1, 4. Barnard v. Godscall, Cro. Jac. 309. Orgill v. Kemshead, 4 Taunt. Rep. 642. (b) See 1 Virginia Revised Code, ch. 38, p. 135, edition of 1819. [Scott v. Lunt's Administrator.] and assigns, a fee farm rent with a clause of distress, and covenanted to levy a fine to uses, for securing the payment of the rent, so that, if the rent should be in arrear, B. his heirs and assigns might enter into the land, and enjoy the rents thereof, until the rent in arrear should be paid to them; and B. assigned, by a bargain and sale to C. the rent," with all the penalties, forfeitures, profits, and advantages, comprised in the indenture." The fine was levied, the rent was in arrear, and C. entered, and brought ejectione firmæ; and a special verdict having been found, stating the above facts, one question was, whether this contingent and future use to arise upon nonpayment of the rent, was transferable over to C., by the bargain and sale. It was strongly urged by the defendant's counsel, that it is a matter in privity and possibility only, which is not transferable before it falls in esse. But all the justices resolved, that it being a matter of inheritance, and being for the security for the payment of the rent, and waiting upon the rents, might well be transferred with 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), *606] would give the assignee a right to maintain an 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 A 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 favour of the party and his heirs, but of their grantee. 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 favour of the assignee, at his election. (b) So And since the statute of 32 Henry 8, ch. 34, covenants of this sort,running with the estate or inheritance, are transferable to the assignee, with a full right to 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 (a) See Co. Litt. 144, b., Hargrave's note, 1; Gerrard v. Boden, Hetley, 80; Mound's case, 7 Co. Rep. 28, b.; 1 Thomas' Co. Litt. 448, note F. and 449, note (9); Bac. Abridg. Annuity, C. Com. Dig. Annuity, E. (6) Co. Litt. 144, b. [Scott v. Lunt's Administrator.] 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. Packard, 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 Henry 8, ch. 34, or the provisions of the revised code of Virginia, may have upon this point is a question not now before us. We proceed, then, to the consideration of the bill of excep tions. Two instructions were prayed by the plaintiff, and one [*607 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 been made, that 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. 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 case. 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 nonpayment 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. *WALTER BRASHEAR, APPELLANT, V. FRANCIS WEST, THOMAS FRANCIS WEST, HENRY NIXON, SURVIVING EXECUTOR OF JOHN It is not necessary to the validity of a deed of assignment for the benefit of credi- 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. An assignment was made by Francis West, to certain trustees of all his property, giving a preference 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. By the court: the preference given in this deed to favoured creditors, though liable to abuse, and perhaps to serious objections, is the 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. By the court: 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 labours 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 favour of leaving the product of his future labours 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 sign the release, and thereby *609] 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 principle, 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. By the court: 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 [Brashear v. West and others.] 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 at 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 favour the law has decided. Construction of the laws of Pennsylvania relative to foreign attachments. APPEALS from the circuit court of the United States for the district of Kentucky. These cases were argued by Mr. Bibb for the appellant, Walter Brashear; and by Mr. Sergeant and Mr. Peters, for the appellees. Mr. Chief Justice MARSHALL 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 four thousand and eleven dollars and sixty-eight cents, the supposed amount of a judgment obtained against [610 the complainant as special 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 three thousand five hundred and twenty-seven dollars and eiglity-two cents 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 two thousand one hundred and forty-seven dollars and seventy-six cents. 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 |