delivered the opinion of this court:

The facts in the case are but few. The appellee had obtained a judgment against Newman, on the 5th of March 1858. The attachment was laid in the hands of the gar- . nishee July 16th of the same year. There was no dispute as to the correctness of the claim; it was admitted, as was, also, a certain sum of money which had been collected by .the garnishee from the debtors of the defendant, Newman, in pursuance of the authority conferred by the following instrument:

“Know all men by these presents, that I, William W. Newman, have constituted and appointed, and hereby constitute and appoint Y. H. Kalkman, of said city, my sufficient and lawful attorney, in my name, and for my use and benefit, to ask, demand and receive of all and every person or persons, whomsoever, all such debt and debts, sum'and sums of money as arc now outstanding, or shall be due and owing to me, the said William W. Newman, and upon receipt thereof, in my name, as aforesaid, to execute and deliver proper acquittances for the same; and it shall and may be lawful for the said Y. H. Kalkman, to compound or agree to *66accept any dividend for any debt or debts, sum or sums of money, now due or hereafter to become due to me, as he may see fit, at his discretion and to the best of my advantage and interest, but he shall not constitute or substitute any attorney, or attorneys, under him, without my license, in writing, for that purpose first had and obtained.

“And the said V. H. Kalkman shall duly account to me, the said William W., upon receipt by him, said Kalkman, of any moneys on my account by virtue hereof, he, the said Kalkman, shall, after deduction of his commissions for collection and charges for professional services, make as just and satisfactory a dividend thereof to my creditors as he can, and settlement with them.

“And I, the said William W. Newman, hereby covenant to ratify and confirm whatever acts or things the said Y. H. Kalkman may lawful^ do by virtue hereof in the premises.

“ Witness my hand and seal this 1st day of February, A.D. 1858 William W. Newman, (Seal.)”

It was properly witnessed and acknowledged before a justice of the peace.

On the 9th of February 1858, through the “Baltimore Sun” newspaper, the garnishee, Kalkman, gave notice to the creditors of William W. Newman to file their claims properly authenticated with him, on or before the 15th day of September 1858, preparatory to a dividend of such funds of said Newman as might then be in his hands by virtue of a power of attorney executed to him by Newman.

Some of the creditors filed their claims, but were not paid anything because of the pendency of this action. On this state of case, the court instructed the jury as follows: “That if they find that when W. W. Newman, executed the power of attorney, given in evidence in this case, he was insolvent in fact, and shortly after making the same, he left the State of Maryland, and further find that when the attachment was laid in the hands of Y. H. Kalkman, he had received for the collection made by him under the said power of attorney, the amounts given in evidence and stated in his answer, and had, *67when the said attachment was so laid, made no settlement with any of the creditors of Newman, and had made no dividend among the said creditors, then the said plaintiff is entitled to recover, even if the jury find that prior to the laying of said attachment, lie had advertised, as shown in his answer, and some of the creditors had filed their claims with him.” The court rejected the prayer offered on behalf of the defendant, “that, upon the evidence in the case, the plaintiff was not entitled to recover.”

The question before this court is, whether or not the Common Pleas ruled correctly. On the part of the plaintiff i-t is contended, that the instrument under which Kalkman acted was but a simple power of attorney, revocable at the pleasure of Newman; and, on the other side, that it was a valid and effective assignment, conveying, for the benefit of creditors, the legal title to the funds; that the filing of the claims of some of the creditors before the attachment, and the acceptance by Kalkman of the power conferred, made him a trustee for the benefit of the creditors of Newman, creating such a trust as would defeat the attachment of the plaintiff.

If the paper relied upon as an assignment be one, it is so, because of the authority given to Kalkman to divide his collections of the debts due to Newman among the creditors of the latter.

There is no doubt that a debtor in failing circumstances may bona fide prefer one creditor to others. 6 Gill & John., 205. Nor, as was said in the case of The State vs. The Bank of Maryland, 6 Gill & Johnson, 217, that, “equality is equity, and when a debtor makes a transfer of his property for the fair purpose of equal distribution among his creditors, he does an honest act, and discharges a moral duty.” And it is equally true, where a party receives funds from A, who directs their appropriation to B, in payment of a debt due him, and A agrees to the appropriation, he will, at the election of B, be regarded as his trustee. The trust may be enforced in equity, or, where the amount is liquidated, the fund may be recovered from the depository at law.

The instrument relied upon in the present case, does not, *68on its face, transfer all the property of the debtor, nor does it exact releases. To make it an effectual bar to the plaintiff’s right of recovery, three things must concur: 1st, the transfer, 2nd, the acceptance of the transferree, and 3rd, the adoption of the creditor. Were it conceded that the paper is sufficient, in form to constitute a good assignment, and that the published notice of Kalkman to creditors is evidence of his acceptance, still, there is wanting the third ingredient to make it available. There is no specific appropriation of any sum to any one; the whole matter is left to the judgment of Kalkman; he is to “make as just and satisfactory a dividend thereof to my (his) creditors as he can, and settlement with them.” The case of King vs. Hunter & others, 4 Price, 258, (2 Exchequer, 95,) shows that such an appropriation is insufficient. Besides, there is no evidence that any of the creditors ever, in point of fact, assented to the transfer. The notice of Kalkman gave no accurate information of the character of the paper executed by Newman. And, although it is well established by numerous decisions, that, in case of an assignment to a trustee for the benefit of creditors, “where the trust is for the benefit of all, and no release or other condition is stipulated for on behalf of the debtor, but the property is to be distributed equally among all the creditors pro rata, the assent of the creditors must be presumed; for the trust cannot be for his injury, and must be for his benefit,” 4 Mason, 206, it has also been held that, this presumption of assent depends upon the character of the instrument of transfer. In Townsend vs. Harwell, 18 Alabama, 303, after recognizing the doctrine laid down by Judge Story in 4 Mason, the court say, “such assignment will not be considered as beneficial unless the deed devotes the property absolutely, and and under all circumstances, to the payment of the debts secured.” And in Evans vs. Lamar, 21 Alabama, 333, it was said, that “a deed which postpones a creditor in the collection of his debt, beyond the date of its maturity, is not valid as a conveyance of the property mentioned in it, until it is assented to by the creditor. Until that time it is a mere power, and may be revoked by the levy of an execution by *69creditors on the property intended to be conveyed by it. Neither will the assent of the creditors to such a deed be presumed.”

Being of opinion that the paper of Newman does not devote, absolutely and under all circumstances, the property to the payment of his debts, and there being no evidence of any assent, in fact, of tire creditors to it, the law does not presume any. We are of the opinion the court gave a proper direction to the jury, and accordingly affirm its judgment.

Judgment affirmed,.