The opinion of the Court was delivered by

Whether the firm of John Fraser & Company, or that of Fraser, Trenholm & Company, was responsible to the respondents by reason of any joint interest or ownership in the cotton referred to in the evidence as shipped by M'etcalf, it is scarcely necessary now to consider.

Whatever doubts might have existed in regard to it have been removed by the admission of the appellants in their ninth ground *281of appeal, and the recognition, on the part of both of the firms, of the ownership of the respondents in a certain amount of the cotton by the letter of Fraser, Trenholm & Company, of 21st December, 1867, to John Fraser & Company, and of the latter to W. A. Beall, of January 15, 1868. The actual amounts respectively due to the respondents for their several interests in the Metcalf shipment are therein stated. Whatever obligations were imposed on the one firm or the other, or on both, as to Metcalf, if he had been the sole owner and had pursued, in relation to it, the same course these re-spondents observed, must attach in their favor. Regarding it, then, as an established fact that the respondents had each an interest in the cotton amounting at least to the balance due, stated in the said letters, the material inquiry is whether they can claim the provisions of the agreement of 25th November, 1867, either as creditors of the firm of John Fraser & Company, or of Fraser, Trenholm & Company. Although the extent of the share which each of the respondents had in the cotton may not have been known to John Fraser & Company until about the 1st of January, 1868, still the evidence clearly shows that as early as the date of the first shipment it was brought to the notice of both the firms that a portion of it was on joint account with the Bealls, and the mode of distinguishing the cottons, as between the respective parties, made known.

If the respondents can bring themselves within the terms of the instrument by showing that a trust is created for their benefit, the execution of which they can require of these appellants, they are not to be deprived of the right to its enjoyment because the exact amount of their claim may not have been known, at the date of the agreement, to the parties who made it. If, before the trust fund is exhausted, they can show that they are entitled to a participation in it by fulfilling any of the conditions by virtue of which the trust is to attach, they have the right to enforce it.

It will relieve the case of some embarrassment and the Court of much unnecessary labor by declaring at once that if the claims of the respondents depend on any provisions in the agreement by which they are entitled to the relief they ask as creditors of Fraser, Trenholm & Co., they must fail. They are not within the class of creditors provided for on account of liabilities represented by sterling bills accepted by Fraser, Trenholm & Co., nor are they holders of non-accepted bills drawn on Fraser, Trenholm & Co., referred to in the seventh clause. If they cannot sustain their right under the *282ninth clause of the agreement as creditors of John Fraser & Co., they are precluded.

The agreement is by Theodore D. Wagner and William L. Trenholm, in behalf of John Fraser & Co., and of Fraser, Trenholm & Co., and the creditors of either or both of the said copartnerships. It cannot be said that they compose but one house, as the members of the two firms are not the same, and that incident so necessary to establish exact and complete identity between them is wanting. A partnership as to third persons may arise by operation of law. Two several firms may, by their course of dealing with a third person in the same transaction, incur a joint liability, in the same manner and to the same extent that two or more individuals may. In fact, though the firms may be separate, yet, if they both hold out that they are one, each is liable to answer for any obligation they incur to a party dealing with them under such circumstances. Should one do acts, no matter of what nature, to induce others to believe him a partner with another, he will be so held, and the same principle must apply where two firms, by their acts and representations, create a belief upon the faith and credit of which dealings are had with them. As was said by Parke, J., in Dickinson vs. Valby, 10 B. & C., 128: “The defendant would be bound by an indirect representation to the plaintiff, arising from his conduct, as much as if he had stated to him directly and in express terms that he was a partner, and the plaintiff had acted upon that statement.”

So far from finding the conclusion of the Referee and the presiding Judge on this question of fact, as to the relation between these houses in the transaction, which is the subject of the complaint, manifestly against the evidence, a full examination of it leads us to the same result. Confining our enquiry alone to the letters between the parties, what do we find ? In the first letter of Metcalf to John Fraser & Co., January 31, 1866, he says :

“ Gents — How stands your firm, (Fraser, Trenholm & Co.,) at Liverpool?” to which John Fraser & Co.reply, on the 3d February following : “It gave us sincere pleasure to receive your letter of the 31st ult., proposing to ship your cotton to your old friends, Fraser, Trenholm & Co. * * * * We will tell you fully how we are situated, and let you determine for yourself, and for us too, whether we shall have the benefit of your patronage on this occasion. * * * * The business we will transact for you on the old terms, which we hope will be satisfactory, and we will make the advance you *283name, and hold the cotton subject to your order of sale as suggested.” Metcalf, on March 31, 1866, writes to John Fraser & Co. : “ I enclose you my letter to your Liverpool house, which please forward ;” to which they reply on 2d April, 1866 : “ The enclosure for our Liverpool house will be forwarded by the first nsai'l.’’ The said letter, so enclosed for Fraser, Trenholm & Co., of the same date, says : “I shall have the bills of lading filled up to order and sent you through your house in Charleston.” The various letters offered in evidence, beginning at page 41 of the brief, lead unerringly to the conclusion that the transaction, so far as the owners of the cotton were concerned, was founded on the belief arising from the conduct of both the firms, that the dealing was with parties having some general and connecting interest in their commercial relations.

The claim of the respondents cannot be defeated by the operation and effect of the proceedings in England under the bankrupt lawr. However well established may be the principle contended for in the argument in regard to double proof against several trading firms where there are persons who are parties to them all, and its enforcement in England, it can have no application in the case before us. So far as the bonds for the $1,500,000 provided by the agreement as a fund to meet the trust was to avail, it is not unreasonable at least to say that their value depended on the mortgage “ of all the real estate of the.said Wagner, W. L. Trenholm, John Fraser & Co., C. K. Prioleau, John B. Lafitte and E. Lafitte & Co.,” which was given to secure their payment. The agreement was executed only fourteen days after the deed of inspectorship.

It is not necessary to enquire how far the proceedings in bankruptcy of a foreign Court will conclude another jurisdiction.— Assignees of Tapham vs. Chapman et al., 1 Mill., 283 ; Robin-son vs. Crouder, Clough & Co., 4 McC., 519 ; Ogden vs. Sand-ers, 12 Wheat., 211. Could the proceedings in bankruptcy in England affect the interest of Wagner, W. L. Trenholm, Prioleau, in the real estate which they held in South Carolina? If so, how could it be “ free from all liens except such as had been created and -were existing on the 22d of June, 1867,” as provided by the agreement? “All the authorities in both countries, so far as they go, recognize the principle, in its fullest import, that real estate or immovable property is exclusively subject to the law's of the government within whose territory it is situate. So that we may here fully adopt the language of John Voet : “ De realibus quídam cum *284plerorumque consensus sit, idpluribus docere supervacuum fueritindeed, so firmly is this principleestablished that in cases in bankruptcy, the real estate of the bankrupt situate in foreign countries is universally admitted not to pass under the assignment, although, as we have seen, there are great diversities of opinion as to movables.”— Story Conflict of Laws, § 428.

There is nothing in the agreement to warrant an inference that any of the creditors of John Fraser & Co. were to be excluded from its benefits. It was an honest and earnest endeavor to provide, if possible, for all the demands which existed against the firm of John Fraser & Co., which had not gone into bankruptcy, in aid of the assets which may have been transferred in England by Fraser, Trenholm & Co., to provide an additional fund for their creditors of a certain class, which would leave a larger sum for those w'ho could not be embraced within it. If, however, the words of the agreement, by the description of the parties who are to be entitled to its benefit, are to be accepted in their usually recéived significance, these respondents may well insist on being included among those provided for by the ninth clause. They are creditors of John Fraser & Co., whose whole real estate is pledged by the agreement .to the payment of the various liabilities embraced in it.

The deed of inspectorship, and the assent of the respondents, in favor of Fraser, Trenholm & Co., cannot extend to John Fraser & Co., who are not parties to it. The effect of the deed, as to this firm, preserves the rights of its creditors in whose favor there is a joint liability with Fraser, Trenholm & Co., by the following provision, found on page 204 of the brief: “These presents shall not prejudice or affect the rights or remedies of any of the said creditors against any surety or sureties, or any person or persons who may be jointly liable with the said debtors for any of the said debts, or generally any person or persons other than the said debtors, or their respective heirs, executors or administrators; and, for the sake of conformity alone, the said debtors, or any of them, or their or any of their heirs, executors or administrators, may be joined in any actions, suits or other proceedings to be brought or instituted by any of the said creditors against such surety or sureties, or other person or persons.” In this connection, the reservation in the assent of the respondents to the deed may well be held to refer to the firm of John Fraser &• Co. as the third parties against whom their rights and remedies were to be preserved. The mean*285ing to be applied to a word in an instrument of this kind should not be of an over critical character. What Beall intended by the use of the term “ third parties ” must be sought in the purposes which the deed of inspectorship proposed and the effect he supposed it was to have in relation to the debt which he claimed against both of the firms.

Who possibly can be comprehended within the words but the concern of John Fraser & Co. ? With what other person or persons has any connection with the debt been intimated ? That this was the designation he had in view may the more readily be accepted from the whole tenor of the evidence in regard to the declaration of assent.

None of the proceedings in bankruptcy are before us save the deed. Looking to this as the standard by which the rights and obligations of the party debtors to it are to be measured and regulated at the date of the agreement, they were not released from the liabilities of Fraser, Trenholm & Company, and, therefore, neither Wagner nor W. L. Trenholm can claim any discharge which would acquit them of the debt established in favor of the respondents.

By the terms of the deed (brief, p. 205,) “ the said creditors do for themselves respectively, and their respective heirs, executors and administrators, covenant with the said debtors, and each and every of them, their and each and every of their executors and administrators, that if and when the said inspectors or inspector shall, by writing under their or his hands, certify that the winding up, realization and liquidation provided for by these presents has, as far as possible, been concluded, then, and in such case, and immediately upon such certificate being given, the said debtors and each, et et., and their estates and effects, shall be thenceforth absolutely released and discharged from the said debts due from them to the said creditors respectively, and these presents shall thenceforth operate as a defeasance pleadable in bar,” et et. It has not been shown that any such certificate had been given, and from the short period which elapsed between the date of the deed and the agreement it was almost impossible that in the meantime a business of the magnitude of that which had been carried on by so extensive a concern could have been wound up, realized and liquidated.

It is contended no such relation as that of trustee and eestui que trust exists between the appellants and the respondents, and that *286the latter are not entitled to the benefit of the agreement, because it was not intended for them by those who made it, and their position has been inconsistent with its acceptance. The trust here cannot be considered a purely voluntary one; it was for the benefit of creditors, and however contradictory the decisions may be as to the power of revocation on the part of one who has made a voluntary settlement, if there was a consideration moving it, no power of revocation is retained. The debts of the creditors provided for by the assignment here constitute a sufficient consideration.

The question is not between conflicting creditors. It is really, through the trustees, between the parties creating the trust, and creditors who claim that they are entitled by virtue of a certain provision in the agreement covering their debts. The fund is in Court ample to meet the demands of all the creditors who have appeared under the order of February 7, 1872, the effect of which is to marshal the trust securities, and wind up the trust by a final execution of it.

While the binding effect of the agreement was to he preceded by the assent and signing of all the creditors of John Fraser & Co., Fraser, Trenholm & Co., and Lafittes & LeCount, no time was limited in which the one was to be given and the other done.

Creditors who were before the Court are supposed and held to have conformed to all the conditions and requirements of the agreement, to as full an extent as if they had expressed their assent in writing. “ Declarations of the intention or understanding of a grantor, different from the intent apparent on the face of a deed, must be made at the time of executing it.” — Louverly and Wife vs. Arden et al., 1 S. C., 240. The bonds of Wagner and W. L. Trenholm were delivered according to the agreement, and a trust thereby devolved upon the appellants for the benefit of those who could bring themselves within its terms. Was the direction of Wagner and W. L. Trenholm necessary to authorize the trustees to deliver bonds to the respective creditors who claimed as eestuis que trust under the agreement'! Was their interposition requisite for the transfer of the bonds ? If so, by withholding their assent, they virtually could have defeated the trust. Does the agreement show that any control of the fund was to be reserved by Wagner and W. L. Trenholm ? This doctrine of revocation, so questionable in voluntary settlements, cannot be applied to a trust founded on valuable consideration.

*287That a cestui que trust may renounce a provision in his behalf is not doubted. The advantage is intended for him, and he is at liberty to decide for himself as to its acceptance. Where it is not done by some positive act or declaration, the evidence to,show a release of an intended benefit should be clear and conclusive as to the intention.

The mere delay in notice of acceptance, if not beyond the period limited by the instrument creating the trust, is not sufficient to divest the cestui que trust of his interest. The institution of suit on the demand, with the view of- making George A. Trenholm a member of the firm, cannot be construed as a waiver of the right. A creditor having two sources of payment, by pursuing one of them, is not always held to have renounced or abandoned the other. The respondents would be bound by a much more rigid rule, if the question was raised between them and other creditors, or if there was a deficiency of assets to meet the debts of those who have come in under the order. But the fund is in court, ample for the satisfaction of all the creditors appearing and entitled to a distributive share' of it, and the court can control its direction. — Shubrick vs. Shubrick, 1 McC. Ch., 406. The course and conduct of the respondents may have been vascillating, evincing a want of determination as to the course they should pursue for the security of their debt, but we cannot say that it evinces a purpose to reject the trust and look to some other mode of payment.

The order dismissing the motion in both cases has been heretofore filed.