This cause has been argued as if this species of assignment were a cherished child of our protection; but that notion is certainly founded on a misconception of the origin and bent of our decisions. We have held no other doctrine in respect to it than has been held by the courts of our sister states. That the rule of the court is not peculiar to Pennsylvania, is shown by Stephenson v. Haywood, Prec. in Chan. 310, and its countless progeny, both English and American, collected in 2 Kent 532. Such a rule is the inevitable consequence of an admitted principle of the common law, which the legislature alone is competent to change; for where a failing debtor is allowed to pay his debts in the order that pleases him, he necessarily has it in his power to make his own terms; and no statutory regulation of the trust can prevent him. Nor would it help the matter to prohibit voluntary assignments altogether, when the purpose may be as readily effected by confession of judgment, by direct delivery of the effects to the preferred creditors, without *313the intervention of trustees, or by a thousand other contrivances which the ingenuity of fraudulent men can always supply. Nothing less than a sequestration of the effects can go to the root of the evil; and so long as the national legislature shall refuse to exercise its exclusive power to enact a bankrupt law, so long will the creditor be under the control of his debtor, and so long will it be our duty to restrain the subordinate courts and ourselves from exercising a legislation which is forbidden even to the legitimate legislatures of the states.
That a particular form of release is prescribed and appended, can not affect the legality of the assignment. The creditor is a purchaser of his preference, and must take it on the debtor’s terms.
Nor is it more material that the merchandize was to be delivered in specie, to a particular class of the preferred creditors, at prime cost. Though a debtor may not give away his property on pretence of payment, yet when a common price is fixed as a measure of distribution, it is immaterial at what it is put, provided the actual value is not more than adequate to satisfaction in full; and there is no pretence that it was so in this instance, for no stock of old goods would sell for cost. That the question of value should be settled by the assignee, who was a naked trustee, was entirely proper. He had access to the original invoices; and, indeed, it was not at all material how he settled it betwixt the preferred creditors, each of whom had an equal right to take at the valuation; and all of whom might take jointly, in order to put the goods to sale, if they could not agree to take separately. There is nothing in that circumstance, therefore, and it is a conclusive proof of fair intent, that any surplus, which might remain, was directed to be distributed among those who should not release.
Judgment affirmed.