#### *A. LePrince and A. Fourgeaud, assignees of C. G. A. Lacoste, vs. Philip Eugene Guillemot and wife, H. Poincignon and others, creditors of Lacoste.*

A contract, entered into in France, between husband and wife, and their parents, before the marriage, and in contemplation thereof, whereby the parents mutually stipulated to advance, as a marriage portion, each the sum of forty thousand francs, payable at their, the parents, pleasure, but bearing an annual interest until paid of 5 per cent, with a reservation to the parents of the reversion of the capital in case of their children’s deaths before them without *issue*— Held, on the testimony of French lawyers, to be a valid contract in that country, and to constitute debts, due by the parents from the date of the marriage, equally binding with other debts : *Held*further, that the contract was binding in this State, on the father of the wife, and that it was not fraudulent as against his creditors because not recorded here.

Such a contract, if entered into in South Carolina, would be valid, *semble.*

The *validity*and *construction*of a contract, are to be determined by the laws of the country where it was entered into, though its *lien*and *operation,*and all *priorities of right*under it, are generally limited to that country, and in enforcing or executing it, the tribunals of other countries are not bound to give it any effect, so far as it may contravene the *policy*of their own States.

The Act of 1823, 6 Stat. 213, requiring marriage *settlements*to be recorded, does not apply to a *contract*not amounting to a settlement.

The Act of 1785, 6 Stat. 636, requiring marriage *contracts,*&c. to-be recorded, only avoids the instrument, for non registration, as against the creditors of, and purchasers from, the *persons taking interests,*under the instrument, and leaves *it*valid as to all the rest of the world..

Where a debtor, being the owner of property in this State and elsewhere, by a deed, purporting to convey his whole estate, assigned to trustees his property in South Carolina, intrust, (1) to pay such of his creditors as should within a limited time execute to him releases, and (2) to distribute the surplus, if any, *pro rata*among his creditors generally, *Held,*that the concealment of the extra territorial property, was a fraud which vitiated the assignment.

Where an assignment for the benefit of creditors was set aside as fraudulent, *Held,*that judgments recovered against the assignor after the assignment, and after the assigned property had been sold by the assignees, were not entitled to preference over the claims of other creditors, but were to be paid *pro rata*with them.

*Before*Johnson, Ch. *at Charleston, February,*1843.

This was a bill of interpleader, filed by the assignees of La-*188coste against his creditors, which came before the court on exceptions to the master’s report.

On the 24 June, 1840, Charles Gregorie Arnauld Lacoste, a merchant, trading in Charleston, New York and Paris, made and executed an assignment, which declared “that, for paying of the just debts of the said Charles Gregorie Arnauld Lacoste, as far as his property, of whatever kind, will extend,” he, the said La-coste, conveyed to the complainants two lots in the City of Charleston, twelve slaves, all his merchandize, furniture, household goods and stock in trade, in his store on King’s street, “or elsewhere, in the City of Charleston, and all the money due and owing to him by any person or persons whomsoever,” in trust, first to sell the property, collect the debts, and retain for the assignees a commission not exceeding 5 per cent. “And in the second place to distribute the whole of the clear residue of what may come to their hands, among the creditors of the said Charles Gregorie Arnauld Lacoste, that may, on or before the first day of January next, accept of this assignment, and release the said Charles Gregorie Arnauld Lacoste from their several demands, rateably and in proportion to the amount that may be due them, respectively; and in case there should be any surplus, then to pay and apply the same to the discharge of any debts of the said Charles Gregorie Arnauld Lacoste, that may be demanded of them, rateably and in proportion to their several amounts.”

On the 13 January, 1841, Lacoste executed in New York, for the benefit of his creditors, an assignment to Edward Bayer, of choses in action to a considerable amount, some merchandize in New York, some lots in Oswego, and five thousand acres of land in Tennessee. In a schedule, annexed to this assignment, he named the defendant, Guillemot, as one of his creditors.

Shortly after the assignment of the 24th June, 1840, was executed, the complainants sold the property included in it. On the 30th January, 1841, after the sale of the property by the complainants, the defendants, Poincignon and Mottel, obtained and entered up judgments, in the Common Pleas for Charleston District, against Lacoste for about $6,400, and on the 13th April, in the same year, the defendants, Marie C. DeVillers and Felicite DeVillers, also recovered and entered up judgment against him for $20,000.

The only persons who accepted the terms of Lacoste’s assignment were Philip Eugene Guillemot and Jeane Elvina La-coste, his wife, of the city of Paris, in France; and one of the *189leading; questions made in the cause, was, whether they were cieditors of Lacoste. Another important question was, whether the assignment to the complainants was valid as against the creditors, who had not accepted its provisions, and executed releases.

Mrs. Guillemot was the daughter of Lacoste, and the claim of herself and husband arose out of a marriage contract, entered into in Paris, on the 23d May, 1836, between Lacoste and his daughter, and Mr. Guillemot and his parents. The preamble to this contract, and two of its articles, were as follows.

“Before the undersigned, Royer, Esquire, and his colleagues, notaries in Paris, personally appeared Philipe Eugene Guillemot, student of medicine, residing in Paris, Rue Faubourg, St. Dennis, No. 109, of legal age, son of Mr. Jacques Magnus Guillemot, proprietor, and of his wife, Mrs. Madelaine Julie Antheaume, residing in Paris, in the said Rue du Faubourg, St. Dennis, No. 109; the said Mr. and Mrs. Guillemot appearing for the purpose of countenancing and authorizing their son, and for the purpose of constituting the marriage portion which they are about to give him.

“ And Madame Jeane Elvina Lacoste, residing with her father and mother, herein named, of legal age, daughter of Mr. Charles Gregorie Arnauld Lacoste, merchant, a citizen of the United States of America, and-of Mrs. Gabrielle Emelie de Rochefort, his wife, both residing in Charleston, South Carolina, United States of America, the said Mr. Lacoste residing, for the moment, in Paris, Rue Grarge Batiliere, No. 26, appearing for the purpose of countenancing and authorizing his daughter, and for the purpose of constituting the jointure which he is about to give her,

“In contemplation of the'marriage proposed between the said Guillemot, Jr. and Madame Lacoste, the celebration of which will take place forthwith, the parties have made the following clauses and civil condition, in presence of, on the part of the future bride, Mr. Armand Coste, her cousin, on the part of the future husband, Mr. Jules Guillemot, his brother.

“ *Article*2. In consideration of the contemplated marriage, Mr. and Mrs. Guillemot, parents of the future husband, constitute in his favor, and as a portion in advance of his share of their estates at their deaths, whichsoever shall first die, and in case of insufficiency to be taken out of the estate of the survivor—

*190“ A capital of forty thousand francs, to be paid at their pleasure, but producing an annual interest of five per cent, until discharged; which interest the donors obligate themselves, in solidum, to pay to the donee, every six months, at his residence, counting from the day of his marriage.

“ Mr. and Mrs. Guillemot expressly reserve to themselves the reversion of the said forty thousand francs, in case that their son should die before them without leaving issue.

“ *Article*3. And Mr. Lacoste, in consideration of the intended marriage, acting not only in his own name, but as guaranteeing the consent of his wife, constitutes as a jointure for his daughter,—

*“*A capital of forty thousand francs, which the donors will pay at their pleasure, and which shall produce, until discharged, an annual interest of five per cent, for the payment of which interest Mr. Lacoste obligates himself and *his wife,*in solidum; the interest to be paid to his daughter, at the residence of the future couple in Paris, every six months, beginning from the date of the marriage.

*“*Mr. Lacoste reserves, for himself and for his wife, the rever-son of the forty thousand francs, which he has constituted as a portion for his daughter, in case that she should die before her parents, without leaving issue.

•‘The payment of this jointure shall be imputed on the estate of the parent who shall first *die;*and in case of insufficiency, on the estate of the surviving parent.”

It was proved, from the testimony, taken by commission, of several persons residing in Paris, two of whom were advocates of the Royal Court of Paris, that this contract was duly executed and registered according to the laws of France, and that its effect was to constitute a valid debt of forty thousand francs, due by Lacoste from the day of his daughter’s marriage, and to give a lien on all his fortune for the payment of the debt.*

*191It further appeared, that the debt to the Misses DeYillers existed previous to the 23d May, 1836 ; and that, on the 15th June, 1839, Lacoste conveyed to a trustee, for the use of his wife, the *192whole of his real and personal estate, in Charleston; and that, in June, 1840, the said deed was declared fraudulent as to his creditors, by a verdict had on certain proceedings in attachment.

*193*By the Chancellor.*On the twenty-fourth of June, 1840, Charles Gregorie Arnauld Lacoste conveyed and assigned to the complainants, by deed, certain real and personal property and choses in action, in trust:

1st. To pay the expenses of the assignment.

2d. To pay all those of his creditors who should, on or be*194fore the first day of January, then next ensuing, accept the assignment, and upon receiving their adequate proportion of the proceeds of the assigned estate, sign releases to him in full of their demands. In pursuance of the power conferred by the deed, complainants have sold the estates, and the proceeds have been paid into court, to abide the event of this suit, which is a *195bill filed, calling on the defendants, who have conflicting claims, to interplead. One creditor only, Philip Eugene Guillemot, and his wife, the daughter of Lacoste, have accepted the assignment within the time limited by the deed, and of their claim I shall hereafter have occasion to speak.

The other defendants, also creditors of Lacoste, insist that *196the deed of assignment is fraudulent and void, because Lacoste owned a considerable property not included in the assignment, and to enable a creditor to take the benefit of the assignment, he is required by it to release his demand for any thing that may remain unpaid. It is not denied that the assignment included all the property, rights, and credits, to which Lacoste *197was entitled, and which were in this State, but it is pretty clearly established, that he owned, at the time, a considerable property in New York, where he then resided; and the question is, whether that vitiates the deed. I have never seen even a *dictum*denying that a debtor may not prefer one creditor to another, although he may not have the means of paying all his *198debts, nor can it be prevented, unless the debtor be deprived of the power of disposing of his property altogether. If it consists of money, chattels, or lands, he may pay or transfer the whole to one creditor, if it be necessary to pay the debt, to the exclusion of all others. He may make terms with his *creditor,*and that is done habitually. He may say to him, “here is an *199article of property which I will give, if you will accept it in full of -your demands.” The creditor is not bound to accept it, but if he does, the debt is discharged, whether the property be of the value of the debt or not, — it is a new contract, by which the old is superseded. Now, if the debtor can do all this directly, how is it that a deed, conferring on the assignees the *200power to treat with creditors upon precisely the same terms, should be void ? As in the first case, so in this — the creditor is not bound to accept, and may look to the responsibility of the debtor. If he accept, with a knowledge of all the facts, it is a new contract, by which he is bound, and being a voluntary act, it cannot be regarded as a very great hardship. But this view of the matter is founded on the supposition, that the creditor had a full knowledge of all the circumstances necessary to enable him to estimate correctly all the means to which he might resort for the payment of his debts. Here, however, there was concealment on the part of Lacoste. There is nothing in this deed, nor is there any thing' in the evidence, to shew that the creditors had any knowledge that he owned other property in New-*201York; and if the creditors had accepted and released, under the deed, there is no question that the releases might have been avoided, on the ground of fraudulent concealment in obtaining them. It may be said, that the creditor who . has accepted, is entitled to the benefit of the deed, as he was no party to the fraudulent interest. That Lacoste intended a fraud, there is no doubt, and his acceptance under the assignment, made him, although involuntarily, a party to it. To allow it, would operate injuriously to the other creditors, as, after having exhausted the assigned estate, if that was not sufficient to pay his demand, he might, with the other creditors, have proceeded against Lacoste for what remained due. The case of *Jacot vs. Corbett et al.*(Cheves’s Eq. 72,) establishes very clearly, that a voluntary assignment, made by a debtor for the benefit of creditors, if it be made with a fraudulent intent, is wholly void; and that case is also .referred to, to shew that this deed is fraudulent; but the cases are not precisely the same. There, the fraud complained of was, that the deed had, itself, provided that the debtor should have a right to retain, for his own use, all the assigned effects, after paying forty per cent, on the debts due to a certain class of creditors; and it was held to be void, on that account, as a fraud in law. This case is stronger — here was fraud in fact. The other creditors, (defendants) object to the claim interposed in behalf of Philip Eugene Guillemot and wife, on the ground that the debt was merely voluntary on the part of Lacoste, and void as to *bona fide*creditors. As before stated, the wife was the daughter of Lacoste. They were married in France, in 1836, where he then resided; but before the marriage, and in contemplation of it, the fathers of Philip Guillemot and Lacoste entered into an agreement in the forms prescribed by the laws of France, wherein it is recited, that the marriage was forthwith intended to be had and solemnized ; and the father of Philip, on his part, undertakes, in his favor, to advance a capital of forty thousand francs, as a portion, to be paid at pleasure, and to pay thereon, five per cent, per annum, until the principal should be paid; and Lacoste, on his part, undertakes, in favor of his daughter, to advance the same amount of capital, in the same manner, and upon precisely the same terms. The question is, whether that contract was voluntary and void, as to the creditors of Lacoste. Lacoste was, at the time, carrying on extensive mercantile operations in this city, and in New York, and owned visible property of considerable *202value, but his credit began to be suspected by those best acquainted with his affairs, as early as 1834, and there is no question that he was *largely indebted at the time he entered into this contract.*He then owed the debt of about twenty thousand dollars, claimed to be set up now by the defendants, DeVillers; but there is no means of ascertaining whether, at the time, he could afford, in justice to his creditors, to make this provision for his daughter; and the claim must rest on the question, whether the marriage, and the advancement made by the father of Philip, was a valuable consideration.

Marriage is generally regarded as a valuable consideration for a contract, and I believe it is somewhere said, and perhaps with justice, that it is the best; and although it may shock the lovers of romance, I do not know why a parent may not buy a husband for his daughter, or a wife for his son. In real life, it is often done. Paupers may, and do often, intermarry, and get along well enough in the world, and marriage is very often unequal and inconsiderate. Prudent persons, however, look to the future ; and parents are unwilling that their children, especially daughters, should enter into the contract of matrimony, without a reasonable prospect of their wants being suitably provided for ; and I cannot see any reasonable objection to their stipulating for it. There is nothing in morals opposed to it, nor do I think there is any thing in the law which prohibits it. Now, let us suppose that the parents of young *Guillemot*and wife *held commune*together, with respect to the intended marriage of their children, and had reasoned, as well they might, that without some provision for them, they might be subjected to want; and that to remove this difficulty, they agreed, each with the other, to contribute equally to raise a fund for their support. Is not their mutual undertaking a valuable and legal consideration? Would not the violation of the contract be a breach of good faith between the parties to the contract, and a fraud upon the married couple, who might have been seduced into the marriage in the prospect of such aprovisioné And is the law so harsh as to demand that such a contract should be set aside ? I think not. In *Davidson*& *¡Simpson vs.*Graves, Riley’s Ch. Ca. 219, the intended husband, who was largely indebted, settled the whole of a very large estate on his intended wife, and the settlement was held to be void as to creditors, because the value of the settled estate was so disproportioned to the probable wants of a family, as to furnish intrinsic evidence that there was a settled purpose *203to defraud creditors. Here, Lacoste was engaged in extensive mercantile transactions, which, if fortunate, might result in wealth. He owned other visible property of considerable value, and with these prospects, he might have reasonably and fairly concluded, that this was but a reasonable provision for his daughter ; and if a contract be fair and valid in its inception, subsequent events could not render it otherwise. I am, therefore, of opinion, that this claim is entitled to stand on the same ground as the others. There is no exception as to the validity of the claims of the other *defendants;*some, perhaps all of them, have obtained judgments against Lacoste, and it is claimed that they ought first to be paid in the order of the priority; but in this court, equality is justice ; no such thing as priority, except legal liens, is known here. Creditors stand here all on the same footing. The defendants, Marie C. DeYillers and Felicite DeVillers, who reside in France, authorized an agent in Savannah to accept for them, under the assignment, 'as soon as it might be supposed they had notice of it: but the authority did not arrive, and the offer to accept was not tendered until after the time limited by the deed had expired. They claim, however, to be entitled to the benefit of the conditions of the assignment, but, for the reasons before given, it cannot be allowed. •

It is, therefore, ordered and decreed, that the costs of the several parties to this suit be paid out of the fund in the hands of the *master;*and that the residue of the said fund be paid to the several creditors, rateably and in proportion to the amount of their respective demands.

From this decree, the defendants, the Misses DeYillers, appealed, on the grounds,

1. That marriage is not a valuable consideration to support a conveyance, except as between the husband and the wife ; and a gift by a father to his daughter, on her marriage, is as purely voluntary, and as unavailing against existing creditors, as a gift made at any other time, or to any other person.

2. That an agreement to give, is not a gift; and even where the latter may be supported, the former will not be enforced, especially against creditors of the donor at the time of the agreement to give.

3. That for the foregoing reasons, the claim of Guillemot and wife should have been rejected by his Honor ; but that, at all events, the claim of Guillemot and wife should have been limited to the arrears of annual interest, if any be due, secured to them *204by the marriage contract; and that there is no ground on which Guillemot and wife can be regarded as creditors for the amount of the principal, especially as the reversion is expressly reserved to Lacoste and wife, and is, moreover, payable only at the pleasure of Lacoste.

The defendant, Poincignon, appealed, on the above grounds, and also on the further ground,

That as the assignment was declared to be void, because of fraud, the fund arising from the sale of the assigned estate should have been distributed among the judgment creditors, according to the date of their respective judgments.

The defendants, Guillemot and wife, appealed, on the ground,

That the assignment to the complainants was valid.

*Kunhardt,*for Poincignon,

submitted that Lacoste’s assignment to the complainants was void, for actual or constructive fraud. The badges of actual fraud were, 1, the settlement of Lacoste on his wife, which was declared void by the verdict of the jury. 2. The fact that the assignment to the complainants was made but a few days after that verdict was rendered. 3. The assignment in New York, which shews that the first assignment did not contain, by a large amount, the whole of Lacoste’s property, and which was made just before Lacoste returned to South Carolina to take the benefit of the insolvent debtor’s Act.

If these circumstances are not sufficient to convince the court of the *mala fides*of the transaction, then the deed must be set aside, because contrary to the 13 Eliz. 2 Stat. 496. In *Jacot vs. Corbett,*it was held, that if the creditor stipulates for a release, and reserves an interest to himself, the assignment is fraudulent as against creditors. In that case the interest reserved was expressed on the face of the deed. In this case, the interest reserved is dehors the deed, to wit, the property mentioned in the New York assignment. He cited 5 Johns. Ch. 332; 11 Wend. 107; 1 Ed. Ch. R. 451.

If the assignment is set aside, the judgment creditors should be paid according to their legal priorities, and not *pro rata*with the other creditors. 2 Blackf. 485 ; 1 Amer. Ch. Dig. 160.

As to the claim of Guillemot and wife. The promise is, to pay at the pleasure of Lacoste — can such promise constitute a debt 1 Again ; the debt is contingent and uncertain, — either Lacoste or his wife, — the one who dies first, — is to pay. 8 Yes. Jr. 335. 27 Law Lib. 149. Lacoste was indebted, at the time *205the contract was entered into; is it not therefore fraudulent as to his creditors *1*1 Bail. Eq. 229 ; 4 Johns. Ch. 450.

*Magrath,*for Guillemot and wife,

contended that the assignment to the complainants was valid. The property omitted could not have been reached by any process which the courts of this State could issue. The creditors, therefore, were not delayed and hindered within the meaning of the Statute of Eliz. 1 Story Eq. § 366 — 7 ; 4 Johns. Ch. 452; 1 Story Eq. 362, note 2. The mere stipulation for a release does not vitiate an assignment. Ang. on Ass. 28 ; 7 Wheat. 566 ; 4 Mason, 206 ; 14 J. R. 458 ; 20 lb. 442 ; 2 Hill Ch. 452 ; 2 Wash. C. C. R. 69; 4 Mason, 312. If the deed to the complainants was fraudulent in its inception, was it not made valid by the New York assignment ? 3 Bac. Abr. 315, Fraud. C.

He contended that the validity of the marriage contract must be determined by the laws of France. Story Confl. Laws, § 276. Such contracts are favorably regarded, 3 Des. 594, and marriage is the highest consideration known to the law. 2 Des. 269. He cited 2 Hill Ch. 31 ; Bail. Eq. 141, 230; Ather. Mar. Set. 202, 129 ; 2 Yern. 483; 3 Johns. Ch. 495 ; 6 Yes. 759 ; 17 lb. 271; Cowp. 706 ; 9 Yes. 193, where a settlement by a father on the marriage of his son was declared valid, and *ex parte Winchester,*cited in 1 Atk. 116, where a bond given by the wife’s father to the husband on the marriage was holden good. As to the objection, that the debt was payable at pleasure, it was enough, he said, that it was a debt by the laws of France. 3 Atky. 188 note; 2 P. Wms. 60Ü.

It is objected that the contract should have been recorded here. Surely our Acts requiring marriage contracts and settlements to be recorded, do not apply to contracts entered into in foreign countries, by foreigners, whose creditors are foreigners, and where no property in South Carolina is conveyed.

He contended that Guillemot and wife, having accepted the assignment, were entitled to be paid in preference to all other creditors ; 4 Wash. 233.

*Bailey,*for the Misses De Yillers,

contended that the assignment of 1840 was void, on account of actual, as well as legal, fraud. Courts of justice have held, but with great reluctance, that a debtor may make an assignment, giving preferences among his creditors. They have also held, that he may stipulate for releases, where the assignment contains every thing, and is *bona fide.*In this case the assignment was not made in good faith. *206It did not contain all that Lacoste was worth. It would be monstrous *to*decide, that a debtor may make a valid assignment, omitting property, and stipulating for a release. What is the principle on which the court proceeds in holding the stipulation for a release valid ? It is this. That an honest debtor, who gives up every thing, ought not to have his future industry cramped and restrained, by a heavy load of debt. Does La-coste’s future situation, supposing him to have retained twenty or thirty thousand dollars worth of property, require that his industry should be unfettered ?

It was not necessary to consider whether the New York assignment was supplemental to the Charleston assignment, and made it valid, although void in its inception. The New York assignment was executed just before Lacoste returned to South Carolina, to take the benefit of the insolvent debtor’s Act, and was therefore itself a fraud.'

If the assignment is set aside, the assets, he said, must be distributed in *pari pasu.*Equity delights in equality. The judgment creditors had no liens on the assets in the hands of the assignees, and the bill was filed not to set aside the deed, but merely to have its trusts declared. 1 Story Eq. & 552-3; Bail. Eq. 296.

The last question is, are Guillemot and wife creditors of La-coste *%*The policy of the law of this State is, that a voluntary deed shall not prevail against *creditors.*Shall this *policy be*overruled by the French law in relation to reality ? In construing a contract, the court will be governed by the *lex*loci, but in giving effect to -it, the *lex fori*prevails. Story Confl. from § 303 to § 328. By the policy of our laws, marriage contracts must be recorded. If this deed prevails that policy is violated. Guillemot and wife are driven to this alternative ; either the settlement is voluntary, and therefore fraudulent as against the creditors, especially those who were creditors at the time the contract was made, or else it is a marriage contract— supported by the marriage consideration — and therefore void because not recorded.

*Hunt,*for Guillemot and wife,

said there were but two questions important to his clients. 1. Is the assignment valid? 2. Are Guillemot and wife creditors?

The validity of the assignment depends upon but a few fundamental principles. It is clear from the decided cases that a debtor in insolvent circumstances may prefer one creditor to *207another, and however hard or unequal it may be, the power necessarily results from the absolute dominion of the owner over his estate. It is equally well established, that if a debtor may set apart and deliver any part of his estate in payment of any particular debt, he can also convey the same .property to a trustee for the same purpose, it is only a mode of doing' the same thing. The next matter to be considered is, whether a stipulation that the creditors so favored shall release the debtor, as a condition of the preference, vitiates the deed. Why should it *1*It is the every day course of business for one to compound with a creditor, by giving a release. It is perfectly optional with the creditor to receive payment on this condition, or to pursue his remedy at *law,*— volenti *non fit injuria,*— and at least if the creditor consents to the arrangement, other creditors, cannot complain, as this arrangement lessens the number to compete for what is left. If, then, a creditor consents to release his debtor, on receiving a dividend under such an assignment, the court has no authority, on the complaint of another creditor, to set it aside. If the debtor may convey absolutely, then none but those on whom the condition is imposed can complain. In this case Guillemot and wife are satisfied to release. Thus far, then, the case is clear on principle. It is also to be remarked that the release stipulated for does not extend to the property of the debtor, but only to his person. All the above principles are fully discussed, and laid down as good law, by Chief Justice Marshall, with his peculiar power and clearness, in 7 Pet. R. 615.

The principal grounds on which deeds of assignment have been declared void and fraudulent, will now be noticed, and none of them apply to this case. The class of cases most usually refered to, and commented upon in the case of *Jacot vs. Corbett,*is that where the debtor removes the property beyond the ordinary process of law, and thus compels the creditor to stipulate something in favor of the debtor, as a condition of obtaining payment; that is, giving the debtor an interest in the identical property assigned, or some other property of the debtor. And thus, when Corbett stipulated, that on receiving forty.per cent on their debts, the residue of his estate should revert to himself, this was held fraudulent, both at common law and under the IB Eliz. So, where it was stipulated that, unless the creditors all released, the property should revert to the donor, and generally where the grantor does not part absolutely with the property, so as to have no interest which can revert, until the *208creditors are all paid in full, it has been deemed a hindering and delaying creditors, and the assignment has been deemed void under the statute. But when all property in the assigned estate is absolutely parted with, and if one set of creditors do not take it, it goes to others, and finally to general creditors, the case amounts simply to a preference which is admitted to *be lawful.*In this case, the trusts are, first, in favor of the accepting creditors, and second, in favor of all creditors generally ; so that the debtor parted with all his interest, giving a preference to those who released him.

It must be remarked, that the statute only applies to property leviable by execution. As to choses in action, if conveyed, there must besóme other ground than mere hindering and delaying creditors; and in fact the .court does not, in such cases, vacate the deed, but controls the execution of the trusts, so as to prevent fraud.

The next class of cases which is insisted on, as coming within the prohibited kinds of conveyances, embraces what are called partial assignments, or conveyances of part only of the debtor’s estate. If this is not done fraudulently, it is not easy to perceive how that can affect the conveyance. Why may not a man say to his creditors, here is property which I will deliver to you, if you will give me a personal release ; if not, you must take your chances according to your legal rights. If any one or more creditors assent and give the discharge, what claim have other creditors to set aside the conveyance *1*If a payment in full would be only a legal preference, surely other creditors cannot complain that the preferred creditors have received but a part of their debts, and thus left more for themselves. The only case which can give rise to any difficulty, is this. If the debtor conveys, or purports to convey, all his estate, and his creditors release, under the mistaken impression . that they had received all the effects of the debtor, and thus had executed a true bankrupt discharge. What, then, is the legal operation of the deed? Certainly it is not void. As far as it extends, it is legal. The difficulty arises as to the omitted property, and as to that, the remedy is clear. The law would compel the debtor to convey the residue, and thus perfect the first deed, according to the intent of the accepting creditors; for a donor is bound to comply, according to the understanding he knew he conveyed to the accepting creditors.

, The fraudulent intent of the debtor cannot be imputed to the *209accepting creditors. They, at least., are innocent; and then the question arisesif there are two classes of creditors, one who do, and one who do not, accept such partial assignment, what will be their relative rights ? If the accepting creditors waive all objections to the partial character of the conveyance, it is not easy to perceive what right the other creditors have to complain. And if the accepting creditors attempt to subject the residue of the property, and set aside their releases as obtained under false pretences, they must do equity; and as equality is equity, they must relinquish any preferences under the deed. In that case, the deed would not be vacated, but the cumulative remedy of subjecting the residue of the estate, would be afforded on equitable principles. Thus it results, if the accepting creditors do not seek any redress, the deed stands ; if they do, it stands for what it is worth — and the general creditors are let in, if the other property is subjected to the assignment. Apply these rules to this case. The accepting creditors are satisfied, and do not seek any part of the New York property. The deed is therefore valid. It is due to the debtor to remark, that-the New York property was the valueless remains of a broken concern, and only conveyed for form sake. The authorities to support the above principles are 4 Dal. 76 ; 7 Pet. 615 ; 5 Mass. Rep. 42 ; 1 Edw. Ch. 451; 5 Pick. 265; 6 Green. Rep. 395 ; Ang. on Ass. 96, 108. The doctrine, as a text, may be seen in this sentence. *“*The circumstance of the debtor assigning over to trustees all his property, without any reservation to himself, and giving the surplus, if any, to those creditors, if any, who do not come in and agree to release on taking their prefered share, is deemed to disarm the transaction of all unfairness and illegality.” This is the rule, certainly, where all the debtor’s property is assigned. Now, we must distinguish this case from one where a part ol the property was designedly withheld. This would be evidence of a design to compel a universal release, leaving a part of the debtor’s estate to himself, and thus something like an express reservation of a part of his estate to himself. But in the case before the court, Laeoste clearly intended to convey all his estate, and for all useful purposes did- so ; and afterwards went through the form of adding these worthless claims, at a time when he was not informed of the state of the assignment and the releases. In fact, as the New York property was out of the State, he may have thought he could not include it in a deed executed here. *210At all events, the circumstances negative any fraudulent intent, and the accepting creditor is content.

The marriage deed constitutes a valid debt due by Lacoste ; if so, he might pay it equally or by preference. To decide whether it did constitute a valid debt, we must resort to the law of the place; because the parties are supposed to contract with reference to that law. Thus, the true meaning and consent of the contracting parties, is ascertained by referring to the laws under which they lived. The interest was to be paid in France — the parties were domiciled there. What the law of a foreign country is, is ascertained either by an authentic publication, or the opinions of local jurists obtained by commission. We have examined two eminent jurists, practitioners in the highest courts of Paris, and they concur in stating that the marriage contract created a debt from the date of the marriage. But a dilemma is presented thus. If the consideration was marriage, then it is a marriage contract, and must be recorded in this State. If not, then there was no consideration, and it is void against creditors. To this, there are two replies. 1. Marriage was, it is true, the inducement, but the payment of an equal amount by the husband, through his father, of a part of the son’s inheritance, was a valuable consideration. Again, it was not a settlement by the husband, but an advancement by the wife’s father, and so a lawful contract. It *conveyed no*visible property, and did not come within the meaning of the recording Acts — which are intended to guard against liens on visible property. If a father gives his son a bond as a marriage portion, it is a good debt, although not recorded ; but if he conveyed to him a house, it might be different. It is questionable, however, whether the law refers to any other settlements 'than those of the wife’s or husband’s property.

But it is urged that Lacoste was in debt, and also insolvent, because the event proved him to be so some years after, and the case of *Izard vs. Izard*is referred to ; but there Mr. Izard was a planter, and no casualty" had intervened to affect his estate. Here Mr. Lacoste was a merchant, and came within the influences of the storm that in 1837 prostrated so many of the first houses both here and in Europe. He was, at the time of the marriage, at the head of his business, and honored his engagements. It was a sacred debt. Both husband and wife had encountered the charges of a family on the faith of it, and he might well have preferred it. But his aim was justice to *211all his creditors. He was the victim of misfortune, and was willing at least to save his honor from the wreck.

*

The following are the interrogatories propounded to the witnesses in France, the answers thereto, and a copy of the marriage contract.

*Interrogatories.*

1st. Do you know the parties named in the title of these interrogatories, or either, and which of them ?

2d. Be pleased to examine the archives of the Bureau in which settlements made in contemplation of marriage are usually recorded, and especially examine the record hereunto annexed, and say if the same is a true copy, in due form of law, according to the laws of France, as they existed at the time the said record bears date.

*1913d. Are you well acquainted with the laws of France, as they existed at that time, and state whether the said marriage contract is in due form, and whether its legal effect, according to the said laws, is to constitute a valid debt against Charles Gregorie Arnauld Lacoste, to the extent of forty thous- and francs, from the day of the marriage of his daughter, as set forth in said contract, and constituting also a general pledge of his entire estate to pay the samel

4th. Where is the original contract? Is it deposited in the archives of the proper department, and is the copy annexed as sufficient evidence, by the laws of France, of the due execution of the original? State fully.

5th. State in what office the annexed deed, by the laws of France, should be recorded. Examine, or cause to be examined, said office, and state if this settlement is duly enrolled.

6th. State any other matter or thing tending to prove that the annexed, or any other paper, in nature of a marriage contract, exists, whereby Charles Gregorie Arnauld Lacoste became liable to pay to Philip Eugene Guillemot, and Evelina, his wife, a sum of money, in consideration of their marriage ; and annex all documents, records and proceedings in any way, to the answers to these interrogatories.

*Cross Interrogatories.*

1st. If you say that the contract referred to in the interrogatories in chief, was duly made and legally executed, and is properly authenticated, according to the laws of France, and that it constitutes a valid debt against Charles Gregorie Arnauld Lacoste, and a general pledge of his entire estate, for the payment of the same, please to state, also, whether, by the said laws, such pledge extends to property subsequently acquired, and whether the said laws permit any part of the estate of the said Charles Gregorie Arnauld Lacoste to be applied to the payment of such debt, to the exclusion of his *dona fide*creditors. If so, be kind enough to mention in what code, chapter, section and artitle, such law is to be found, and in what book, or in what page, the same may be refered to.

2d, If you know the parties to the said contract, do you, or do you not, know that Madame Guillemot, the alleged creditor, is the daughter of the alleged debtor, Charles Gregorie Arnailld Lacoste ? And do you, or do you not, know that the alleged debt is a mere gift, or voluntary donation, from the said Charles Gregorie Arnauld Lacoste to his said daughter ?

3d. Do you, or do you not, know that the said Charles Gregorie Arnauld Lacoste was lately a merchant or trader within the kingdom of France, and that recently, and since the date of the said contract, became there a bankrupt, or insolvent ?

4th. Do, or do not, the laws France provide that in cases of bankruptcy or insolvency, voluntary debts, such as that constituted by the contract already referred to, shall be postponed in payment, until all the *bona fide*debts of the bankrupt or insolvent are fully paid and satisfied ?

5th. Do the laws of France, in any, and in what, case permit or prohibit the application, of the estate of an insolvent person, to the satisfaction of his *192gifts or voluntary donations, whilst his *bona fide*creditors are left unpaid.? Please refer to code, chapter, section, article, book and page.

6th. If you know of any other matter or thing going to shew that the property of Charles Gregorie Arnauld Lacoste should not he taken from his actual creditors to satisfy this gift to his daughter, be pleased to state the same as fully and particularly as if thereto specially interrogated.

*Interrogatories in reply.*

1st. When the parents of both the parties contract, prior to the marriage, and each agrees to furnish a fixed sum, does or not such an engagement constitute, by the laws of France, a contract, and is not the future marriage of the parties, and the mutual contribution, a good and sufficient consideration for said contract?

2d, When a debt is once so incurred, does the law of France admit of any subsequently contracted debts taking precedence, or is it, like every other debt for a consideration, valid at its date?

3d. By the laws of France, is a contribution, in consideration of an intended marriage, a gift or donation? Or does it acquire the rank of a *bona fide*debt, and equal in rank to any other debt?

4th. If you refer to the laws of France, as to the rank of debts in cases of bankruptcy, please refer to the chapter and section, and those local laws applicable to bankruptcies occuring in France.

*Answers, et c.*

In the year one thousand eight hundred and forty-one, (Government Stamp) on Tuesday, twenty-third of November, at two o’clock, of lfr. 26e. afternoon.

Before the undersigned, Henri Thion de la Chaume, (Government Stamp) and Francois Louis Charles Pierre Paul Huillier, Esquires, Notaries at Paris.

Being in the study of the said Huillier, Esquire, in Paris, Rue Taitbout, No. 23.

Huillier’s Notarial Personally appeared Mr. Philip Eugene Guillemot, Seal. formerly a student of medicine, at present a man of letters, and Madame Jeane Elvina Lacoste his wife, who Thion de la is duly authorized by him, both residing together, at Chaume’s Not. Seal. present, Rue des Saints Peres, No. 38.

Who said as follows:

That a case is pending in the Court of Equity of South Carolina, between Messrs. Le Prince and Fourgeaud, assignees of Mr. Lacoste, plaintiffs, and Messrs. Poincignon and Mottel, defendants for the appearers.

That the said court has directed a commission of Interrogatory to the President of the tribunal of Commerce at Paris, for the purpose of appointing two or more Notaries, in this city, to receive, upon oath, the depositions of persons who can testify to facts relating to the said case, with the intent that the depositions shall be returned in the form prescribed by the said court.

That the undersigned Notaries have been appointed for the said purposes, *193by the said President of the Tribunal of Commerce, and that they have taken the oath before him.

That in this stage of proceeds, [I say proceedings, Tr.] the appearers require, by these presents, the said notaries to receive the depositions of the witnesses in the form prescribed by the said Court of Equity.

After reading (these presents,) Mr. and Mrs. Guillemot signed, and then retired.

(Signed) Eue. Guillemot. J. E. Lacoste.

“The interrogatories put by the said Court of Equity, the cross interrogatories, and the answers thereto, have been written by the undersigned notaries on a sheet stamped one franc, twenty-five centimes, which sheet has been hereunto annexed, after due mention having been made thereof, by the undersigned notaries, and shall be recorded with these presents.”

In execution of the commission to them confided, the said notaries, (taking into consideration,)

1st. That under the laws of France, notaries, before whom marriage contracts have been executed, have the keeping of the originals .or minutes, and the delivery of authentic copies thereof.

2d. That documents emanating from notaries, bear an authentic character, even in foreign countries, when, 1st, the signature of the notary has been certified by the President of the tribunal, within whose district (the notary actuates.) 2d, the signature of the said President being certified by the Minister of Justice, or by his delegate. 3d, the signature of the latter being certified by the Minister of Foreign Affairs, or by his delegate. 4th, and lastly, the signature of the latter being certified by the diplomatic or consular agent of that country where the document is to be produced.

3d. That according to usage in France, jurists (avocats-,) are expected to answer questions of law propounded to them, and to deliver certificates of the custom, (in each case.)

The undersigned notaries have invited the following persons to appear before them.

1st. Royer, Esquire, notary in Paris, who has executed the marriage contract, mentioned in the interrogatories put by the said Court of Equity. 2d Mr. De Lemarre, designated by the said court as Chief du Bureau de' la Chancellerie au Ministere des Affaires Etrangefes, and delegated by the minister for the purpose of authenticating documents. 3d. Charles Ledree and Paul de Jouvencel, “ *avocats a la Cour Royale de Paris.’’’*[This is a title, given to those jurists who practice in the Cour Royale and in the Inferior Courts.]

If the appearance of other persons should be deemed necessary, they will be invited to furnish evidence.

And, upon the invitation of the undersigned notaries, immediately ap*194peared Mr. Antoine Adolphe Charles Ferdinand Royer, Notary residing in Paris, Rue Yivienne, No. 22, who did, after taking the oath, present to the undersiged notaries, • the minute or original of the marriage contract, passed before him and His colleague, by Mr. Philip Eugene Guillemot and Madame Jeane Elvina Lacoste, on the twenty-third day of May, one thous- and eight hundred and thirty-six, which minute makes a part of his archives.

The said Royer then made the following answers to the questions propounded by the said Court of Equity, (which questions) are enumerated in the annexed document.

1st. To the first question — “I have slightly known Messrs Lacoste and Guillemot; however, I have had communication with them occasionally, concerning their business.”

2d. To the second question — “the minute of the marriage contract, which I have just exhibited, makes a part of my archives, and the copy thereof produced by the Court of Equity, is a faithful one, delivered by me in due form, according to the laws of France, existing at the date of the contract.”

3d. To the third question — “It is not my province to answer this . question.”

4th. To the fourth question — “I have already stated, that I am the custo-diary of the original of the said marriage contract; that this copy is in regular and authentic form, and that it is, under the laws of France, a sufficient proof of the contents of the originalthis is in consequence of the law of 25th Ventóse, in the year 11, and of articles 1317 and seq. and 1394, of the civil code.”

5th. To the fifth and sixth questions — “In consequence of the answers which I have made above, a specific answer to these questions becomes useless.”

To the counter interrogatories, Mr. Royer answered as follows:

1st. To the first — “It is not my province to answer this question.”

2d. To the second — “I know that Mrs. Guillemot, who claims as creditor, is the daughter of the debtor, Mr. Lacoste, and that the debt is a pure gift, and voluntary donation, from father to daughter.”

3d. To the third — “I know that Mr. Lacoste has been a merchant in France, but I am ignorant of what may have befallen him since (the date of) the contract.”

4th. To the fourth, fifth and sixth questions — “It is not my province to answer these questions.”

In answer to the interrogatories in reply to the cross interrogatories, put in succession, Mr. Royer stated that it was not his province to answer, and that he abstained from doing so, these questions, and the former, coming more properly under the cognizance of advocates at law; and after reading, Mr. Royer signed, and retired.

(Signed) Royer.

*195Immediately (after,) personally appeared Mr. Auguste Delamarre, “Chief du Bureau de la Chancellerie au Minister des Affaires Etrangeres de France,” Knight of the Legion of Honor, residing in Paris, Rue Grenelle St. Germain, No. 20, who, after taking the oath before the undersigned notaries, did make the following answers to the questions put by the said Court of Equity, to wit: ^

1st. To the first question — “I do not know any of the parties mentioned in the preamble of these presents.”

2d. To the second question — “All that I can answer relatively to this copy or exhibit is,' that I have certified the signature of Mr. Poret, delegate to the Minister of Justice, who had certified the signature of the President of the Civil Tribunal of Seine, by whom had been certified the signature of Mr. Royer, notary in Paris, that (these formalities) render the copy authentic.”

3d. To the third question — “I am not a jurist, nor am I competent to answer the question; it does not come within my sphere.”

4th. To the fourth question — “I cannot answer this question, it is foreign to the functions which I fulfil.”

5th. To the fifth and sixth questions — “I make the same answer as I did to the fourth question ”

Mr. Delamarre answered as follows, to the cross interrogatories, put successively by the court.

“I am not acquainted with the parties at issue, I am not a jurist, these questions are foreign to my functions, I cannot answer them.”

Mr. De Lamarre answered as follows, to the interrogatories in reply to the cross interrogatories.

“I repeat, that I am not acquainted with the parties at issue; I am not a jurist, it is not possible for me to answer these questions.”

Whereupon, Mr. De Lamarre, after reading, signed with the notaries, and retired.

(Signed) De Lamarre.

And immediately intervened Mr. Charles Ledree, advocate of the Royal Court of Paris, residing (in Paris,) Rue du Vingt Neuf Juillel, No. 6, who did, after taking the oath, make the following answers to the aforesaid interrogatories propounded by the Court of Equity.

1st. To the first — “I am not acquainted with Mr. Lacoste, but I am acquainted with Mr. and Mrs. Guillemot, with whom I am on social terms.”

2d. To the second — “The document produced appears to me to bo a copy, in due form, of a marriage contract, passed according to the French laws ; the original thereof must be found in the archives of Royer, Esq. Notary in Paris, who executed it.”

3d. To the third — '“As a lawyer, I am well acquainted with the laws of *196France, as they existed at the time; this contract is in due form, and its effect is to constitute a valid debt, *quoad*Mr. Lacoste, of forty thousand francs, from the day of his daughters marriage, as is mentioned in the contract, and to give a lien (obliger,) on all his fortune for the payment of the said debt.”

4th. To the fourth — “This copy is a regular and authentic otie; it is sufficient proof of the existence of the original.”

5th. To the fifth and sixth questions — “In view of the foregoing answers, a reply to the present one is needless.”

To the cross interrogatories, Mr. Charles Ledree answered as follows,

1st. To the first — “A pledge of the kind extends to property subsequently acquired by the donor ; it creates, in favor of the donee, a claim having equal rights with other creditors. (See Civil Code, title 3, Chapter 1st, Article 1101, and seq. 1134, and sequential)

2d. To the second — “I know that Madame Guillemot, who presents herself as a creditor, is a daughter of Mr. Lacoste the debtor, and that the debt is a pure gift, and voluntary donation, from father to daughter.”

2d. To the third question — “I know the facts stated, but I am ignorant of what was the real position of Mr. Lacoste, as respects his fortune, at the date of the contract.”

4th. To the fourth question — “I know that the laws of France provide, that in case of insolvency, voluntary debts, such as that constituted by the contract in question, have the same rights as any other debt of the insolvent, and they are paid *fro rata.”*

5th. To the fifth question — “The laws of France allow the same rights to donees of the insolvent, as they do to his other creditors; if there *be*not sufficient assets to pay all, each takes a share of the assets proportioned to his claim. This is a' conclusion from general principles of law, and from articles 25, 725, 893 and 894, 901, 902 and 931, and seq. of the Civil Code.”

6th. To the sixth question — “I can imagine no reason for paying Mr. Lacoste’s assets exclusively to his creditors, others than his daughter, except in case that Mr. Lacoste had failed before the (date of the) marriage contract; I do not think that Mr. Lacoste was doing bad business at that time; I only (state that I) am ignorant of what was his situation at the date of the marriage contract, and whether he was at the head of his business and trade.”

Mr. Charles Ledree answered, as follows, the questions in reply to the cross interrogatories:

1st. To the first question — “An obligation contracted in the terms above set forth, constitutes a real contract, and the contemplated marriage is good and sufficient cause thereof.”

2d. To the second question — “When such a debt is contracted, it ig like every other debt for a consideration, valid at its date.”

*1973d. To the third question — “By the laws of France, a donation, in consideration of an intended marriage, acquires the rank of a *bona fide*debt, and is equal in rank to any other debt.”

4th. To the fourth question — “There appears to me to be no necessity of answering this question.”

Mr. Ledree, after reading, signed and retired.

(Signed) Charles Ledree, *Avocat a la*C. *Royale.*

And immediately appeared, personally, Mr. Hippolyte Felicite Paul de Jouvencel, advocate of the Royal Court of Paris, residing in (Paris,) Rue de la Victorie, No. 13, who did, after taking the oath, answer the questions propounded by the Court of Equity, as follows:

1st. To the first question — “I have been well acquainted with Mr. Lacos-te, and Mr. and Mrs. Guillemot.”

2d. To the second and subsequent questions, to those contained in the cross interrogatories, and in replies to the cross interrogatories, which were all propounded successively, Mr. de Jouvencel having answered in a manner which appeared to the undersigned notaries to be identical with that of Mr. Charles Ledree, the undersigned notaries, in order to avoid useless repetitions, read to Mr. de Jouvencel the answers of Mr. Charles Ledree; Mr. de Jouvencel stated that he approved these answers entirely, that he adhered to them as expressing his opinion on these questions ; he added only, that it was within his personal knowledge', that at the date of the said marriage contract, Mr. Lacoste was at the head of his business, and did honor to his engagements.

After reading, Mr. de Jouvencel signed and retired.

(Signed) Paul De Jouvencel, *Avocat a la Cour Royale de Paris.*

Immediately intervened Mr. Germain Nicolas Thibaut, merchant, one of the judges of the Tribunal of Commerce of Seine, residing in Paris, Rue Neuve St. Eustache, No. 36, and Mr. Jean Lemaine, merchant, residing in Paris, Boulevard Bonne Nouvelle, No. 31, who did, after taking the oath administered by the undersigned Notaries, say that they were acquainted with Mr. Lacoste, of whom mention is made in the case submitted to the Court of Equity of South Carolina, that they have had commercial transactions with him, and that he was at the head of his business, and still did honor to his engagements, towards the end of the year one thousand eight hundred and thirty-eight.

Of all which, the present verbal process has been made; it is entirely in the hand writing of Thion de la Chaume, Esq. one of the undersigned notaries ; (in preparing this verbal process,) the undersigned notaries have followed, as nearly as it was possible, the rules prescribed by their commission. They have only derogated from such rules as were incompatible with the laws of France.

*198And Messrs. Thibaut and Lemoine, after reading, signed, together with the notaries.

(l. s.) (Signed) Germain Thibaut, n. GIuinson and Lemoine, Thion Huillieu. Recorded in Paris, 29th November, 1841, vol. 169, fo. (Stamp,) 171, case 7. Received two france and twenty centimes for tenths.

(Signed) Dumanoir.

*Marriage Contract.*

(Stamp,) Before the undersigned, Royer, Esquire, and his colleagues, notaries in Paris, personally appeared Phillipe Eugene Guillemot, student of medicine, residing in Paris, Rue Faubourg, St. Dennis, No. 109, of legal age, son of Mr. Jacques Magnus Guillemot, proprietor, and of his wife, Mrs. Madelaine Julie Antheaume, residing in Paris, in the said Rue du Faubourg, St. Dennis, No. 109, the said Mr. and Mrs. Guillemot appearing for the purpose of countenancing and authorizing their son, and for the purpose of constituting the marriage portion, which they are about to give him.

And Madame Jeane Elvina Lacoste, residing with her father and mother, Lacoste, herein named, of legal age, daughter of Mr. Charles Gregorie Arnauld Lacoste, merchant, a citizen of the United States of America, and of Mrs. Gabrielle Emelie de Rochefort, his wife, both residing in Charleston, South Carolina, United States of America, the said Mr. Lacoste residing, for the moment, in Paris, Rue Grarge Batiliere, No. 26, appearing for the purpose of countenancing and authorizing his daughter, and for the purpose of constituting the jointure, which he is about to give to her.

In contemplation of the marriage proposed between the said Guillemot, Jr. and Madame Lacoste, the celebration of which will take place forthwith, the parties have made' the *following*clauses, and civil condition, in presence of, on the part of the future bride, Mr. Armand Coste, her cousin, on the part of the future husband, Mr. Jules Guillemot, his brother.

*Article 1st.*

There shall only exist, between the married couple, a community of Acquets; (this community) shall be governed by articles 1498, and 1499, of the Civil Code. Wherefore, the community shall not be bound for the personal debts of either party, incurred before the marriage, and all the pro-peí ty, real and personal, which each party now possesses, or may herafter acquire by gratuitous title, shall be “proper” (the personal property sj.) to such party.

*Article 2d.*

In consideration of the contemplated marriage, Mr. and Mrs. Guillemot, *199parents of the future husband, constitute in his favor, and as a portion in advance of his share of their estates at their deaths, whichsoever shall first die, and in case of insufficiency, to be taken out of the estate of the survivor.—

A capital of forty thousand francs, to be paid at their pleasure, but producing an annual interest of five per cent, until discharged, which interest the donors obligate themselves, in solidum, to pay to the donee, every six months, at his residence, counting from the day ofhis marriage.

Mr. and Mrs. Guillemot expressly reserve to themselves the reversion of the said forty thousand francs, in case that their son should die before them, without leaving issue.

*Article 3d.*

And Mr. Lacoste, in consideration of the intended marriage, acting not only in his own name, but as guaranteeing the consent of his wife, constitutes as a jointure for his daughter.—

A capital of forty thausand francs, which the donors will pay at their pleasure, and which shall produce, until discharged, an annual interest of five per cent, for the payment of which interest Mr. Lacoste obligates himself and his wife, in solidum; (the interest) to be paid to his daughter, at the residence of the future couple in Paris, every six months, beginning from the date of the marriage.

Mr. Lacoste reserves, for himself and for his wife, the reversion of the forty thousand francs, which he has constituted as a portion .for his daughter, in case that she should die before her parents, witout leaving issue.

The payment of this jointure shall be imputed on the estate of the parent who shall first die; and in case of insufficiency, on the estate of the surviving parent.

*Article 4th.*

Arthe dissolution of the community, the survivor shall have the right to take, by way of extra portion, such moveable property belonging thereto, as he may choose, amounting to six thousand francs, according to the inventory then to be made, or to take that sum in money, at his option.

The wife shall be entitled to the said extra portion, though he should renounce the community.

*Article 5th.*

The future couple make, to one another, reciprocal donation, *inter*vivos, which is accepted, of the usufruct of all the property, real and personal, which may belong to the party who shall first die.

The survivor, by reason of this usufruct, shall not be bound to give security, nor to invest, but he shall be obliged to make an inventory.

Whereof act.

Done at Paris, at the residence of Mr. Lacoste, father of the future wife, on the twenty-third of May, one thousand eight hundred and thirty-six. The *200appearers, after reading, signed, together with the notaries. The minute of these presents remains in the keeping of Royer, Esquire.

In the margin is the following note. Recorded in Paris, at the 4th Bureau, on the twenty-fourth May, 1836, fo. 36, vol. C. 3, 4, 5. Received five francs for the document, five hundred francs for the constitution of dower, five francs for contingent donation, and fifty-one francs for tenths.

(Signed) Botjtrais,

(Signed) Rover.

(Notarial Seal.) This copy is written on two scrolls, without reference or erasures.

(Signed) Royer.

The undersigned judge, acting for the President of the Civil Tri(Seal) bunal of Seine, certifies the signature of Royer, Esq. Notary in Paris. Paris, twenty-first day of July, 1840.

(Signed) Prudhomme.

I certify the signature of Mr. Prudhomme, Judge of the Civil [l. s.) Tribunal of Seine. Paris, 22d July, 1840, by delegation. Le Chef de Bureau du Ministere de la Justice.

(Signed) Poret.

The Minister for Foreign Affairs certifies the signature of Mr. [l. s.j Poret. Paris, 22d July, 1840. By authorization of the Minister. Le Chef du Bureau de la Chancellerie.

[Signed] Delamarre.

I, Robert de Leaumont, Notary Public and Translator, residing and practising in Charleston, do certify that the preceding pages are faithfully translated from the French original, submitted to me by the Master in Equity, E. R. Laurens, Esq.

In Testimony Whereof, I have hereunto affixed my signature, and seal of office, in Charleston, on the eleventh [L. S.j of May, one thousand eight hundred and forty-two.

R. De Leaumont, *Notary Public and Translator,*

Curia, *per*Johnston, Ch.

This appeal has been twice extensively argned; first before all the Chancellors, and again in this court; and I have formed an unhesitating opinion upon all the points involved in the cause, and a majority of the court, concurring in it, have directed me to announce the conclusions to which they have come. If, in performing this duty, I do not take notice of all the topics to which our attention has been directed by counsel, this seeming neglect does not proceed, in the slightest degre, from insensibility to the uncommon research and ingenuity of their arguments, but from a persuasion that in a more limited view the subject will be seen in a clearer light.

In considering the questions presented, perhaps the most natural method will be to examine, in the first place, the claim of Guillemot and wife, the only accepting creditors; for if this demand should, upon investigation, prove invalid, it will be un-necesary to enquire into the validity of the assignment of June, 1840, since the assigned assets will, in the case I have supposed, be as effectually thrown open to the remaining creditors, who have not accepted, as if the assignment were formally set aside.

The claim we are now to examine, arises out of articles executed in Paris, immediately preceding, and in contemplation of, the marriage of Guillemot with the daughter of Lacoste. They were executed and registered with all the solemnities required by the laws of the country, and were subscribed not only by the affianced parties, but by Lacoste, the father of the intended wife, and by both the parents of the intended husband ; the parents on both sides mutually stipulating a portion of 40,000 francs, on behalf their children respectively, payable at their (the parents) pleasure, but bearing an annual interest of 5 per cent, until discharged.

The evidence is, that Lacoste’s credit was good at the time, and that he continued to honor his engagements, and was at the head of his business for several years afterwards, though he was indebted at the date of the articles, and eventually failed here, where they have never been registered. This cotemporaneous indebtedness, and this nonregistration, are the principal objections urged against the validity of Lacoste’s undertaking.

The general doctrine is reasonably settled, that the validity and construction of a contract are, throughout the world, to be *212determined by the laws of the country where it was entered into ; Story Conñ. Laws, ch. 8, *passim,*(especially if, as in this instance, it was intended to be executed there,) though its lien and operation, and all priorities of right under it, are generally limited to that country — and in enforcing or executing it, the tribunals of other countries are not bound to give it any effect, so far as it may contravene the policy of their own States; Story Confl. Laws § 323-4-6

Mr. Charles Ledree, advocate of the Royal Court of Paris, whose examination was put in evidence at the hearing, testifies : “As a lawyer, I am well acquainted with the laws of France as they existed at the time; this contract is in due form, and its effect is to constitute a valid debt *quoad*Mr. Lacoste, of forty thousand francs, from the day *of his*daughter’s marriage.” “ It creates, in favor of the donee, a claim having equal rights with other creditors.” “ The laws of France provide, that in case of insolvency,” (supervening) “ voluntary debts, such as that constituted by the contract in question, have the same rights as any other debt of the insolvent, ’ and they are paid *pro rata?*“ The laws of France allow the same rights to donees of the insolvent, as they do to his other creditors; if there be not sufficient assets to pay all, each taires a share of the assets proportioned to his claim.” *“*I can imagine no reason, ”he says, *“*for paying Mr. Lacoste’s assets exclusively to his creditors, others than his daughter, except in case that Mr. Lacoste had failed before the date of the marriage contract.” “ An obligation contracted in these terms, constitutes a real contract, and the contemplated marriage is a sufficient consideration.” “When such a debt is contracted, it is,, like every other debt for a consideration, valid at its date.” ' “By the laws of France, a donation in consideration of an intended marriage, acquires the rank of a *bona fide*debt, and is equal in rank to any other debt.”

Mr. Paul DeJouvencel, advocate of the same court, referring to the answers of Mr. Ledree, said that he approved them entirely, and that he adopted them, as expressing his own opinions ; “ adding, only, that it was within his personal knowledge, that at the date of the marriage contract, Mr. Lacoste was at the head of his business, and did honor to his engagements.”

This is the evidence as to the validity and construction of the contract in question, and it leaves no room for doubt, that it is valid, and constitutes a debt to the extent of Mr. Lacoste’s engagement, dating from the marriage. Indeed the witnesses *?Ledree and Jouvencel, in other parts of their testimony which 1 have omitted, seem to go further, and to establish that the contract created a *lien*covering not only the then existing property, but extending to the subsequently acquired property of Lacoste. But I have not attended to this, because it is pretty clear that the allowing of a foreign lien is rather a question of policy. As observed by C. J. Marshall *(Harrison vs. Sterry,*5 Cranch, 289, 298, and see 12 Wheat. 361-2) the law of the place where a contract is made, is, generally speaking the law of the contract; that is, it is the law by which the contract is *expounded.*But the right of *priority*forms no part of the contract itself. It is extrinsic, and rather a personal privilege dependent on the laws of the place where the property lies, and where the court sits which is to decide the cause.”

But if we were at liberty to decide the validity of Mr. La-coste’s engagement by our own law, we must come to the same result. There is no doubt that responsibilities incured by the opposite contracting parties form a sufficient consideration to support a contract. It may not bemecessary to inquire how far the venturing upon the conjugal relation, with all its cares, and dangers, and duties, by the intended wife, entitled her to insist on this principle of law as against her father, nor whether the assumption of the grave and multiform responsibilities of the relation by the husband, do not constitute him, in the best sense of the word, a purchaser of the benefits of the collateral contract, (a point well settled.) It is sufficient to observe that a full consideration arises, as against Lacoste, from the correlative and mutual obligation undertaken by the parents of Guillemot on the other side. But the objection that these articles were not duly recorded in this State remains to be considered.

It is said that this is a marriage-contract, and, as such, required to be published by registration here, and that for want of this statutory pre-requisite, we cannot give effect to it.

This contract rests not only on the marriage consideration, but upon the counter engagement of Guillemot’s parents : and if the former gives it the savour of a marriage contract, the latter would seem to entitle it to stand upon other grounds, and to free it from the necessity of registration. *Bank vs. Brown,*2 Hill Ch. 558.

But I am disposed to enter into the very objection presented, and this rather as the end to which Mr. Lacoste looked, in this transaction, was manifestly the marriage of his daughter, and *214the motive with which he entered into the contract, and accepted of the stipulation of the other parties, was to bring that marriage about, and provide for its consequences.

For *the*purpose, therefore, of meeting the question presented, it may be conceded that this is a marriage contract. It must be constantly borne in mind, however, that, as such, it is valid by the laws of France, where -it was made, and stands upon full consideration ; and that the only objection to it, is its non registration : an objection which, in the case of a foreign contract, cannot apply to its validity but only to its operation.

The question is, is its operation to be disallowed for mere want of registration *1*I think not.

As a contract not amounting to a settlement, this instrument does not fall within the provisions of the Act of 1823, 6 Stat. 213, but under the operation of the Act of 1785. (4 Stat. *656,*6 lb. 636.) For the understanding of the commentary which I shall make, the words of this latter statute must be closely attended to. “Whereas, the practice prevailing in this State, of keeping marriage contracts and deeds in the hands of *those interested therein,*hath been often times injurious to creditors and others, who have been induced to credit and trust such persons, under a presumption of their being possessed of an estate subject and liable to the payment of their just debts ; for remedy whereof, and to prevent such deceitful practices,

> “ *Be it enacted,*&c., That on or before the first day of September next, all and every marriage contract, deed or settlement, now actually existing, after being duly proved, shall be recorded, or lodged in the Secretary’s office of this State, to be recorded; and where such contracts or marriage settlements, or *the forties*thereto, are without the limits of this State, then and in such case, the *forties interested therein*shall be allowed twelve months from the passing of this Act, to record, or lodge such contract as aforesaid in the office aforesaid. And all that shall hereafter be entered into for securing any part of the estate, real or personal, in this State, of any person or persons whomsoever, shall, within three months after the execution thereof, be duly proved, and in like manner be recorded, or lodged in the said office to be recorded, excepting such as shall be entered in without the limits of this State, which shall be recorded, or lodged to be recorded, in the said office, within twelve months from the date thereof: And in case any person or persons whomsoever, *interested in such marriage deed, contract, or**215*settlement,*shall neglect or refuse to record, or lodge the same, in the manner or within the times before mentioned, in the office aforesaid, to be recorded, *then the same, in respect to creditors,*shall be deemed, and is hereby declared to be, fraudulent; and all and every part of the estate thereby intended to be secured to such person' or persons, shall be subject and liable to the payment and satisfaction of the debts due and owing by such person or persons, in as full and ample a manner, to all intents and purposes whatsoever, as if no such deed, contract or settlement, had been ever made or executed.” *

The cases shew that in the interpretation and application of this statute, the inquiry has hitherto been generally confined to the question, whether the instrument under examination fell within the definition of a marriage contract or settlement, and if it came within that description, the instrument has been condemned for want of registration, without making the further enquiry, whether the person raising the objection was entitled to complain: — whether, in fact, he was one of those persons intended by the statute to be protected by the recording which it enjoins. But this is the most material enquiry of all, and first in order. It has recently been decided, unanimously, by a full bench, that however sweeping the terms of this statute, and that of 1823, yet being remedial statutes, they are to be construed according to their spirit and real intent, and that there are persons whose protection did not enter into the purpose of the legislature, and who therefore have no right to complain of a non compliance with their directions. *Fowke vs, Woodward, Sp.*Eq. 233. If, by a fair interpretation of the Act of 1785, it be found that the mischief intended to be remedied by it was a concealment of the marriage articles or settlement from the creditors of the married parties, and that the remedy was provided for the benefit of these creditors, it must follow that the creditors of Guillemot and wife alone, and not the creditors of Lacoste, can be heard here ; — and can there be a doubt that this is the true interpretation of this Act ? The preamble describes the mischief to be the practice of concealing the instrument by *“those interested*therein,” to the prejudice of those who maybe induced to trust '•'•such.persons” under the mistaken supposition, *216that the property in their hands is not *settled,*but subject to “their” debts, — and it expressly recites that the object of the Legislature is to remedy this mischief and suppress this deceit.

The duty of registering the instrument is plainly imposed on the persons benefited by it, and if this were less clear from the terms of the Act, its title * is sufficient to dispel all doubt upon the subject. Where the contract or the parties are in the State, a shorter time is allowed ; but where either the instrument or the parties are out of the State, a longer time is allowed to *“the parties interested*therein” to effect the registration. Then the consequences of neglect are pointed out. If the parties *‘■'•interested in such. deed, contract or*settlement,” neglect to record it, it shall be deemed fraudulent *“in respect to*creditorsWhose creditors ? Why, surely the creditors of *“the parties interested therein.”*— the creditors of *“such*persons” as by concealing the settlement which *they*were directed to record, have, induced these creditors, (says the preamble,) to trust them by the delusive exhibition of property in their hands apparently liable to *“their”*debts. If this can possibly be still doubted, let us read the Act further. What is the precise consequence of the fraud on the creditors *'l*Why, simply, that the “estate thereby intended to be secured to such persons,” shall be thrown open, not to the creditors of every body or any body, but to the creditors of the parties interested, and made as liable to the debts due *by*them as if no such deed had been executed.

I cannot hesitate for a moment, as to the true spirit and proper construction of this Act. The registration required by it, was intended exclusively for the benefit of creditors of, and purchasers from, the persons interested in the contract or settlement ; and none but they can complain of the want of registration.

One or two further objections to this claim of Guillemot and wife remain to be noticed ; but they were so feebly urged that they had nearly escaped me.

One of them is, that no debt is due for the capital of forty thousand francs, which was payable at Lacosfe’s pleasure, but only for the interest as it accrues, which alone should be provided for. But the French lawyers say that the contract constitutes a debt (and even a lien) for the full amount, from the time *217of the marriage. If this were not so, probably the detention of the interest was sufficient to render the capital demandable instantly. But this matter is put beyond doubt by the subsidiary assignment of January, 1841, in which Lacoste recognises the capital as a debt, and indicates his pleasure by a direction that it be paid.

Another objection is, that by the terms of the contract, a reversionary interest is reserved to Lacoste and his wife, in case their daughter should die in their lifetime without leaving issue. But this is such a contingent interest in Lacoste, as cannot be attached upon at this time for the benefit of his creditors. The debt is due now. Certainly, Lacoste could not excuse himself from the payment of it, on the ground that by a bare possibility a future right may spring up on his part to reclaim the money. When the contingency happens, he may make his claim; and his 'creditors’s rights, being dependent upon his, must obey the same rule.

The next question relates to the validity of Lacoste’s assignment of June, 1840. The Chancellor condemns this instrument, on the ground of intentional fraud; and I am of opinion his conclusion must be supported.

The case is briefly this. The debtor, being possessed of property not only in this State, but elsewhere, by his deed of assignment, purporting to be executed in fulfilment of a design, which it recites, of paying his creditors, rateably, *“as far as his*property, *of whatever*hind, *will*extend,” conveys, as his whole estate, only so much of- his property as lies in South Carslina, taking no notice whatever of the existence of any extra-territorial property. By the terms of the deed, he gives a preference to such creditors as shall, within a limited time, release him from whatever portion of their demands may not be extinguished by the property assigned, and if any balance remains of the assigned assets, after paying off the accepting creditors, it is to be applied to his debts generally. A single creditor, whose demand falls short of the property included in the assignment, has accepted; the rest, whose demands far exceed it, dissent and attach the instrument.

The argument in support of this deed is, that preferences among creditors are allowable, and that the dissenting creditors here, could not, therefore, have complained if they had been entirely excluded, instead of having been allowed the privilege of ranging themselves in the preferred class. That it they have *218lost that advantage, this was the consequence of their own voluntary neglect; and, after all, their default has only resulted in a case of mere preference — a preference which has worked no injury to them as dissenting creditors, inasmuch as, by the very terms of the deed, all the remaining property covered by the assignment, is still open to them, and all the extra-territorial property is as liable as it would have been if no such deed had ever been executed. The fraud lies in a delusive offer of alternatives to the creditors, some of which they dare not accept, without subjecting themselves to conditions, the consequences of which were carefully concealed from them, (or rather covered by misrepresentation) and which were calculated to *secure*advantages to the debtor to which he was not entitled.

Will it be denied that every creditor had an interest in this assignment from the moment of its execution *?*If not, *then.*the professions of the instrument were delusive. Will it be denied, that a free choice among the alternatives presented, was, in itself, one of the benefits proposed ? If so, there should have been no lurking danger to attach, if the creditors should make an unwary choice. The scheme of this assignment was such, that the creditors were to be led on to accept, under the expectation and belief that the assignment covered their debtor’s whole estate, and that the releases which were exacted were to be an empty discharge of his future, and merely possible, acquisitions. *But if they had*accepted and released, they would have found, to their surprise, that they had been tricked into a discharge of property that should'have been accessible to their demands. It is no answer to this to say, that if they had so released, they were entitled to have the releases set aside. For on what ground would they have been thus entitled? On the ground of fraud in obtaining them. And how obtained *1 By*the instrumentality of the assignment professing to contain an entire surrender of their debtor’s property, whereas, it embraced but a part of it. What is this but to admit, indirectly, that the deed was, in itself, fraudulent ?

The defence of this deed proceeds upon a misconception of the true grounds of objection to it.

The ground is, not that it gave a preference ; *Vaughan vs.*Evans, 1 Hill Ch. 414, and innumerable other cases, shew that preferences, fairly given, are allowable.

Nor is it the exaction of a release for any unsatisfied balance ; *Niolon vs.*Douglas, 2 Hill Ch. 443, a case decided almost *219unanimously by both benches, and to the entire satisfaction, so far as I know, of the profession, is authority for such an exaction when made under fair circumstances. The difference between the assignment in that case and in this, is immense. That, not only profess to be, but was, a surrender of the debtor’s whole property. ' This is a partial surrender, with a deceitful coloring leading to a belief that the whole was given up. The fraud here, consists in an artful combination of two things, each of which is, in itself, lawful; preferences given as the premium of releases exacted — and in the application of them to a case where the first thing demanded by justice, to wit, a full surrender of the debtor’s property, has not been performed. In *Jacot vs.*Corbett, Cheves’s Eq. 71, it was held, that a reservation for the debtor’s benefit, was a direct fraud. The effort here, was to obtain the sanction under the hands of creditors to a similar benefit, which benefit was concealed from them by their debtor. The result, if the effort had been successful, would have been the same in the one case as in -the other, — and shall it be said, that the intention to produce a fraudulent result, is not a fraudulent intention ?

A passage in *Niolon vs.*Douglas,* has been commented on, as giving the substance of the argument in support of Lacoste’s assignment. It is there said, “Johnson’s assignment would not have been invalid, if he had simply preferred his other creditors over the plaintiff. It would have been clearly valid, if he had surrendered to the other creditors without condition. I suppose it would have been equally valid as against the plaintiff, if, in his surrender to them as privileged creditors, he had required releases from them. Such a requisition, so far from being a subject of just complaint with the plaintiff, would have been.greatly to his advantage, by freeing the debtor’s after acquisitions from claims which might otherwise have stood in the way of his obtaining satisfaction of his debt. Then, if it would have been no fraud in the debtor to prefer others over the plaintiff, with or without conditions, is he defrauded by giving him an opportunity to participate with them? an opportunity which it would not have been fraudulent in the debtor to have denied him. If the plaintiff refuses to accept the condition proposed, his refusal only reduces him, by his own voluntary act, to the position of an unpreferred creditor. He is not only left uninjured, but, as I *220remarked before, *he is*positively benefitted by *the*condition, although he has not accepted it; the acceptance of it by others having warded off competing claims from the debtor’s after acquisitions.” I adhere to every word of this passage; but I cannot apply .one word of it to the case of a partial and deceptive surrender.

In *Johnson's*case, no fraud could have been perpetrated upon creditors, either accepting or dissenting. If they accepted, they got all their debtor was worth, and their release of any. unpaid balance was an empty thing. If they dissented, they did so in the face of their debtor’s honest proposal to do all for them in his power to do, and knowingly took their chances to be paid out of his future acquisitions.

When, therefore, it was asked, “if it would have been no fraud in the debtor to prefer others over the plaintiff, with or without conditions, is he defrauded by giving him an opportunity to participate with them'?” The answer must, evidently, be “ no.” Eut why ? Simply because none of those who took the preference and released, were, or could have been, defrauded. But here, every creditor who might accept beyond the amount of the assigned assets, in which case only would the required release have been of any import, would have been defrauded; and it was a delusion and a mockery to hold out, under specious appearances, an opportunity and a temptation to the dissenting creditors to share in such consequences.

The matter appears very plain to my mind, and I have, I fear, labored it too much, with the hope of making it as plain to others.

Two circumstances have been selected to secure this transaction from the imputation of bad faith. It is said that Lacoste, had his desighs been unfair, might have confessed a judgment to his daughter and son-in-law, and his abstaining from this is evidence of good intentions towards all his creditors. He put them all on one footing. This argument assumes that the motive of the fraud was parental and not selfish. But the reservation of property, to be secured by the releases exacted, was in his own right and not in right of his daughter, and it was himself alone who was to be benefitted. Was this less a fraud, because, in its scope, it extended to all his creditors — his daughter as well as the rest?

• Another circumstance relied on, is the execution of the assignment of January, 1841, after the limited time for accepting the *221former had expired. It is said, he could not have known, at the time this second assignment was executed, that every creditor had not already accepted under his previous assignment, and that the second assignment is proof of a sincere desire to do justice to all his creditors. Let this go for evidence of a returning sense of justice, which is all that it can prove, how does it serve to undo the wrong already inflicted ? The dissenting creditors had already been deprived of the equality of benefits professedly held out to them, by the acceptance of one creditor, while they were compelled to abstain, and the limited time within which they might have accepted had expired; and how were they to reinstate themselves *‘l*

The last question to be decided is, upon what conditions is this court to interpose for setting aside the fraudulent assignment, and giving the creditors the benefit of the assets ?

The assignment displaced no liens. All the judgments have been obtained, not only since the date of the deed, but since the sale of the assigned property by the assignees. . There is no doubt, then, that all the creditors must stand upon an equality, and be satisfied *pro rata.*

Upon all the questions, therefore, this court concurs in the result of the Chancellor’s decree, and it is ordered that the same be affirmed and the appeal dismissed.

Butler, Evans, Wardlaw and Frost, JJ. concurred.

Dunkin, Ch. concurred in the result.

*

**“ An Act to oblige persons *interested*in marriage deeds or contracts to record the same in the Secretary’s office of this State.”

*

2 Hill Ch. 451.

Johnson, Ch.

I was absent at the argument of this cause here, but concur, entirely, in the opinion of the court.

Harper, Ch.

I concur, with the exception that I think there are circumstances to repel the imputation of fraud in the assignment.

O’Neall, J.

I concur in Chancellor Johnston’s opinion, * except as to the question whether the marriage contract ought to be recorded.

Richardson, J. absent, from indisposition.