in summing up to the jury said. The plaintiffs claim title to the property attached under a deed of assignment of Ferdinand and Theodore Horton of the co-partnership property, and under the two deeds of assign *42 ment of their individual property, dated March 8th, 1851. These deeds are proved to have been properly executed, delivered and recorded, and vest in the plaintiffs a perfect title to the property in question, unless they are void in law by reason of fraud in the deeds or in the intent with which they were made.

The parties in this case — the creditors under the assignment and the attaching creditors — have equal equities. In equity and good conscience a debtor’s whole property should be appropriated for the payment of his debts, though under the law, where the property is unassigned, one creditor by superior diligence may gain a preference.

The defence rests upon two grounds — first, that the deeds are void, because they do not convey the whole property of Horton & Brother, and yet require a release; and second, because they were made and contrived with the intent or purpose to delay, hinder and defraud the creditors of Horton & Brother of their just debts. By our statute to prevent frauds and perjuries, any deed made and contrived with this intent is absolutely void.

Voluntary assignments for the benefit of creditors have been sustained and upheld by this Court for more than a quarter of a century, on grounds of justice and equity, we having no bankrupt laws. Some such system for the distribution of the property of insolvent debtors is absolutely necessary in a business community like our own. And as a matter of wise legal policy these assignments have been favored, and the legislature have conferred upon this Court equity powers, in order more perfectly to enforce their execution. In administering these powers, we have recognized as law and carried out in practice the decision of the Circuit Court of the United States in the *43 case of Halsey et als. v. Whitney, decided in 1826 ; a decision which is also supported by the highest Courts of law and equity in other States and in England. Since that decision, the law, in regard to voluntary assignments, has in some of the States been altered by statute.

In the case of Burgess v. Boon & Spink, decided at the March term of this Court, 1830, which was elaborately argued by learned and able counsel, the late Chief Justice Eddy delivered the opinion of the Court, after a careful investigation of all the authorities, and the Court decided that a bona fide assignment of all the debtor’s property in trust for the benefit of certain preferred creditors, and to pay over the surplus ratably to the other creditors of the assignor, who should present their claims and give a final discharge, within six months, was a valid assignment, and this assignment contained a provision that the residue of the assigned property, after payment of all the debts, should be paid over and reconveyed to the assignor.

In Dockray v. Dockray, decided at the September term of this Court, 1850, the doctrine of the case of Burgess v. Boon & Spink was affirmed, with the provision in the assignment that the residue of the property should be paid over to the assignor, this being no more than a court of equity wauld require without any such provision. The rules, laid down in these decisions, constitute the settled law of this State. They have been acquiesced in by the people and the legislature for a great number of years, and we feel bound to carry them out fairly, but not to extend them. We live in a mercantile and manufacturing community, and have no bankrupt law, and a contrary course would work ruin to the business of the State.

Where an assignment is fraudulent, the evidence of *44 that fraud may exist upon the face of the deed, or it may exist in proof outside of the deed, Thus where the deed contains a power of appointment, or reserves a part of the property for the benefit of the assignor, or where the deed purports to convey the whole of the debtor’s property, but does in fact convey only a part, it carries the evidence of its fraud upon its face. The case of Le Prince v. Guillemot, (1 Richardson, 187), was a case where the deed purported to convey all the property, when in fact, the debtor owned other property not disclosed in the assignment, and the High Court of Equity in South Carolina declared it void. The rule laid down in this case we consider the true rule, based in equity, law and common sense; for such a statement on the face of the deed would have' no other effect than to deceive and mislead the creditors. This deed does not purport to convey all the debt- or’s property, but only certain property specifically set forth. Whether it does in fact convey the whole, it is not necessary to decide. There is nothing on the face, of the deed, calculated to deceive or defraud the creditors.

The assignment is, in our opinion, valid on its face. The condition for a release, although the whole of the property of Horton & Brother did not pass, does not malee the assignment fraudulent and void, since all the creditors can come in without giving a release under the clause allowing eight months, and the condition requiring a release merely gives a preference. The time allowed is not, under the circumstances unreasonable, nor is the clause requiring proof of claims unreasonable. It gives the assignees no power to deprive creditors of their rights. These would be protected in a court of equity.

There being no evidence of fraud on the face of the deed, is there any evidence of fraud out of it. This is *45 for the jury to determine. If there is fraud it must be clearly proved. It must be proved that the assignment was made with the fraudulent intent to delay, hinder and defraud creditors, and that the assignment at the time of its execution, was intended to be the instrument of this fraud. False representations to creditors, made at the time of the purchase of this stock of goods by the assignors, do not make the assignment void. Nor does fleeing from a criminal prosecution ; nor carrying off the assigned funds in themselves have that effect.

The declaration of Theodore Horton that he possessed land in the Western country, not conveyed by the assignment, is mere hearsay testimony, and not competent to prove the fact. Theodore Horton himself, is a competent witness to this fact, and the record evidence, if it exist, is of a still higher nature.

The knowledge of the assignees that the Hortons were about to flee from a criminal prosecution is no evidence of fraud on their part, since they had no power to prevent it.

If, however, there is any evidence that the assignees knew the property was to be carried away, and that they connived at it to defraud the creditors, and if this was necessary to effect that purpose, it was a fraud. But it must be proved that Horton & Brother intended to defraud by this deed, and that the deed was actually the instrument to defraud, or it does not hinder, delay and defraud creditors. But if you find this to be the fact, then the deed is void, and the attaching creditors are entitled to the property.

Verdict for the plaintiff for 020,705 58,