delivered the opinion of the Court:
This was an action of trespass de bonis asportatis. Declaration in the usual form, and plea of justification. Two grounds are assigned for error. 1. The Court erred in excluding so much of the evidence as related to the safe of the property mentioned in the declaration. 2. That it also erred in refusing to admit the deed of assignment offered in evidence by the plaintiffs. From the bill of exceptions it appears that only so much of the evidence as related to the sale of the property named in the declaration as was contained in the written assignment described by the witness, was excluded, and therefore the parol evidence of the sale of which there existed written evidence in the possession of the party, which could be produced, was properly rejected. On the second point, although it does not appear upon what ground the Circuit Court refused to admit the deed of assignment in evidence, yet it is manifestly proper to consider that it could not have been upon the technical ground of want of proof of the due execution of tlie instrument; for if that had been the reason, it would, we think, have been so expressed in the bill of exceptions. The ground doubtless was that of the assignment’s being fraudulent per se.
From an examination of the deed of assignment we can see no ground upon which this opinion can be sustained. The deed conveyed the property upon trust, and declared that the assignee *43should take immediate possession of it, and sell it at public or private sale, and appropriate the proceeds,— 1. To pay the costs of the assignment and expenses of the trust, incurred in its execution. 2. To pay certain creditors named the full amount of their respective claims if they should execute the deed in sixty days. 3. To pay to other creditors who should execute the deed within sixty days, their respective debts, or ratable proportions thereof, if proceeds should be insufficient to pay the whole. 4. If any thing remain, to pay it over to the assignors. It also contains a grant of full power to Cross, and covenants by Cross, the trustee, to execute the trusts contained in the deed. A schedule of the several creditors of the assignors, with the debts respectively due them, is referred to, and made a part of the deed. The deed is duly executed by the assignors, by Cross, the trustee, and by many of the creditors, of whom Cross is one. A memorandum is attached to the deed reciting that the claims of three creditors are not inserted, because the debts due by the assignors to them are secured by mortgages on real estate. This is not the case of an assignment which is to depend on unjust conditions. It is positive and absolute ; and no unjust terms are coupled with it to coerce the acceptance of it by the creditors of the assignors. They are not required to accept the property, nor is the payment of its avails to be made to them on the condition of their executing an absolute release of their respective claims against the debtors. The acceptance on their part is to be purely voluntary, and they are left free to pursue whatever remedy they may elect to compel the payment of the residue of their claims, in case the avails of the assigned property should prove inadequate to the liquidation of the whole debts.
In the case of Clark et al. v. White, (1.) the Supreme Court of the United States say, “ The debtor may prefer one creditor, pay him fully, and exhaust his whole property, leaving nothing for others equally meritorious. Yet their case is not remedial; and why may not debts be partially paid in unequal amounts ? If those who get partial payments are willing to give releases, it is their own matter, and should a third person interfere, debtor and creditor would well say to him, you are a stranger, and must stand aside.” Such seems to be the acknowledged rule of the present day in the Courts in England, and most of the United States, and is too well settled to be now disturbed. The rule, where bankrupt laws prevail, may necessarily be different but not so with us.
The provision in the deed requiring the payment over of any' surplus, should there be such, to the assignors, was not an improper condition. It was but the declaration of a resulting trust, which the law would raise had it not been inserted. Nor can the *44exclusion of the mortgage creditors, named in the memorandum, alter the principle. Indeed they might justly be considered as already secured.
We are of opinion that the judgment should be reversed with costs, and the cause be remanded to the Circuit Court for further proceedings.