
    Starr against Carrington.
    
      A., of this state, being indebted to B., of Oftjo, gave him a promissory note ¡ for the amount due. B. afterwards sent this note to C., an attorney here, for collection; who put it in suit, by attachment served on A.’s personal property, which D. receipted, and, in consequence thereof, he was eventually obliged to pay to C. the amount of the execution obtained in such suit. C. remitted this money to E. in Ohio, to be paid over toB. ; but B. having pre- * viously received satisfaction of his claim from another source, it remained in E.’s hands, until F., a son of A., applied to G. in Ohio, stating, that his father had told him, that he might have if, and requested G. to procure it for him. G. having obtained the money of E., disbursed it for the payment of certain taxes in Ohio, and drew on H. in Connecticut, in favour of F.,fot , the amount. H. accepted the draft, paid a small part of it in cash, and gave his note to F. for the balance ; which note remains due. In foreign attachment, by I., a creditor of A. against if., as the trustee and debtor of A., it was held, that I. was not entitled to recover ; the money advanced by D. having never become the money of A.
    
    This was a scire-f 'acias, in a process of foreign attachment, against the defendant, as the trustee and debtor of John Me Lean. A copy of the writ in the original suit was left in service with the defendant, on the 7th of February, 1818.
    The cause was tried at Danbury, September term 1819, before Ch. J. Hosmer.
    
    Some years ago, McLean, the absconding debtor, being in the state of Ohio, bought a horse of one Samuel Ditty, for 'which he gave his note for 80 dollars. This note was after-wards sent to Isaac Mills, Esq. of. New-Haven, in Connecticut, for collection; by whom it was put in suit, by writ of attachment, served upon personal property of McLean. He, with his mother Deborah .IVIcLeam, gave a receipt for the property to the officer; and the former being a bankrupt, the lafter was obliged to satisfy the execution, which was obtained, out of her ownestate. The money so paid, Mills sent to Samuel W. Phelps, of Grand-River in Ohio, to be paid over to Dill~~; but while the note was in Mills' hands, one Gaylord in Ohio, had sold some goods, which McLean had previously left with him, and from the avails had paid Dilly his demand against McLean; in consequence of which, the money remitted by Mills remained in the hands of Phelps, until about two years and eight months ago, when John McLean, a son of the sconding debtor, sent a letter to one Jilmon Rug gles, residing in Ohio, stating that his father had told him, that he and his sister might have that money, if it could be obtained, and quested Ruggles to get it for them. Ruggles succeeded in taining the money, and applied it in payment of taxes on lands In Ohio, owned by Joseph Trowbridge, late of Danbury, ceased, and drew on the defendant, in favour of John .11. Mc Lean, for the amount. The defendant accepted the draft, and paid thereon to John Ji. McLean three dollars in cash, and gave him, his, the unpaid. Fairfield, June, 18'20. Starr V. for eighty dollars the balance payable on demand with interest. This note is now due and unpaid.
    Fairfield,
    June, 1820.
    Upon these facts, the plaintiff claimed, that in point of law, the defendant was, and ought to be adjudged, the trustee and debtor, of John McLean, to the amount due on such note : and that the plaintiff was entitled to recover that amount.
    The defendant resisted this claim, and contended, that he wás not liable to the plaintiff, in any amount whatever. The court, upon the facts above stated, found the issue in favour of the plaintiff; and gave judgment for him to recover of the defendant the sum of 87 dollars, 94 cents, with costs. The defendant excepted to the finding and judgment of the court, as erroneous in point of law, and, on that ground, moved for a new trial. This motion was reserved.
    
      J. Backus and Hatch, in support of the motion,
    contended, 1. That the money in the hands of Phelps was never the money of the absconding debtor, but was, and is, the money of Dilly, or of Deborah McLean. It originally belonged to Deborah McLean. It was paid to the attorney of Dilly, in satisfaction Of a judgment in his favour. If, by reason of the prior satisfaction of that judgment from another source, Hilly could not receive and hold the money, the right to reclaim it was in the original o wner. If the title to the money is changed, it belongs to Dilly ; if it is not changed, it belongs to Deborah McLean.
    
    2. That the defendant is not the trustee and debtor of John McLean, because the money, to whomsoever it belonged, never came into the defendant’s hands. He was a mere stranger, on whom a draft was drawn by Ruggles, for his own convenience. There was no privity between the defendant and John McLean. ,
    3. That this draft was paid in full, by the defendant, be-fo re, the service of the foreign attachment. He was, therefore, no longer a debtor to any one. The defendant’s giving his note was equivalent to payment of the money. Barclay & al. v. Gooch, 2 Esp. Rep. 57t.
    4. That if the defendant is the trustee and debtor of any one, he is such, by virtue of the note given to John A. McLean, and he alone is entitled to the money so due.
    
      Sherman, contra,
    contended, 1. That the money paid to Mills, and by him remitted to Ohio, became the money of John McLean. The soundness of this position is tested, by enquiring whether Deborah McLean, immediately after the payment of the money to Mills, could not have brought as-sumpsit against John McLean for money paid to his use, and recovered ? Did she pay the money for herself, or for him ?
    
    2. That Ruggles received, held and used the money, as the money of John McLean; and as such, he virtually remitted it to Connecticut; the paying of it out in Ohio for taxes, and drawing on the defendant for the amount, being only a .mode of remittance. The payee of the draft claimed his authority to receive the money from John McLean exclusively.
    3. That the defendant, by his acceptance of the draft, became the trustee and debtor of the person having right to the money.
    4. That the transfer of John McLean’s right to the money to his son, if there was any, being merely voluntary, was fraudulent and void as against creditors; and they may recover the money, by this process, in the same, manner, as though no transfer had been attempted. If the transfer to Jphn A. Me Lean was void, the defendant’s giving a note to him can have. no other effect than if it had been given to John McLean. Enos v. Tuttle, ante, 27. It is, however, conclusive evidence of one fact for the plaintiff, viz. that the defendant is indebted for , ths amount. '
   Hosmer, Ch. J.

The general proposition to be established in. support of the decision of the superior court, is this, that at the time the foreign attachment was left in service with the defendant, he was the debtor of John McLean. Four distinct objections have been made, by the defendant. 1. That the money never belonged to John McLean, but to his mother Deborah. 2. That it is the right of Dilly, who has never relinquished it. 3. That it never came into the hands oí the defendant; or if it did, the debt was extinguished by his note. 4. And that it is really the right of John A. McLean.

1. With respect to the first point, that the money never belonged to JoAn, but to Deborah McLean. The objection is so obviously untenable as to require but few observations. When Mrs. McLean paid her son’s execution, unless it was a donation, she became his creditor, and might immediately have sustained a suit against him, on implied contract. Her right to the money advanced was gone forever. There is no foundation ofpretence to any right in Mrs. McLean.

2. Is the money the right of Dilly, who, it is said, has never relinquished it ? John McLean owed Dilly, on a promissory note, which was transmitted to Connecticut for collection. After a suit on the note and judgment, payment was made, and the money sent to one Phelps for the use of Dilly. Before the transmission of the money to Phelps, Dilly had received payment of his note from another source. With knowledge of this fact, the money was retained in the hands of Phelps, until, on the application of John A. McLean, it was remitted to the defendant, in the manner which I shall hereafter mention. Upon these facts, the enquiry recurs, whether the money is the property of Dilly ? On a correct construction of the motion, if it were necessary, an actual relinquishment of the money by Dilly, ought to be presumed. The defendant, at the trial, interposed no claim made by Dilly for the money; nor is there a reasonable pretence, that he has ever made any. The motion, it is to be inferred, has stated every fact requisite for the fair decision of the question before us ; and to go out of it, in quest of possibilities, would lead to infer-rninable conjecture. But let it be admitted, that there has been no actual release of Billy's right ; and then the question arises, what right has he ? The answer may confidently be given, he has none. His debt, the defendant admits, was paid before the money was transmitted to Phelps ; and the right of Billy, which the motion shows to have been extinguished long since, is worse than visionary ; it is known not to exist.

There is another ground applicable to this, and the next question equally, which is decisive. The plaintiff in this action legally takes the place of John McLean; and the defendant can make no defence, which he could not equally make, had a suit been instituted against him, by the absconding debt- or. Let us suppose, then, that the money had been transmitted to the defendant, by Phelps, and he had given his promissory note for it to John McLean. This is stating the case fairly, on the principle, which cannot be contravened, that if there has been a fraud against creditors, by John A. McLean, the property is still in his father. Could the defendant sustain any of his objections ? Were he to say the money is Beborah McLean’s, his own act in promising to pay it to John would nullify the pretence. So, if the objection is raised, it belongs to Billy, or to Phelps, the answer is conclusive, u You have, in opposition to this suggestion, promised to pay ,my absconding debtor.” Or, if he should deny his being indebted for the money, his note would estop him. Indeed, the same replies may be made to the facts as they now exist; and it is ineontrovertibly clear, if the money is not paid to the creditor of John McLean, payment of it will be coerced by John A. McLean. The objections proposed for the defendant are fdo de se. Not one of them can be made, if the plaintii’s suit fails, against the legal demand of John A. Me Lean. I view this, therefore, as the'effort of this person, through the mouth of his debtor, to repel the plaintiff’s claim, for his own benefit, and by suggestions in which the defendant has no imaginable interest.

3. As to the third objection made, that the money never came into the hands of the defendant; and if it did, that his note has extinguished the debt; to prove its futility requires only a recurrence to the facts.

Phelps, on the request of Ruggles, in behalf of John A. Me, Lean, whb claimed the money as a donation from his father, paid it to him, and Ruggles advanced it for certain taxes. The reason of drawing on the defendant, for the payment of the money thus advanced, does not appear. He either derived benefit from the advancement, or he did not. In the former event, he became indebted for the money, on the advancement ; and in the latter, by the acceptance of the bill of exchange drawn on him by-Ruggles, with a claim upon him for reimbursement. It is no matter in what mode the obligation to pay the money devolved on the defendant. It is sufficient, that it did devolve on him, and that he has promised to pay it. The giving of the note has changed the form of the debt, but, to all substantial purposes, has made no other difference.

4. This brings me to the last question, ..whether really the money demanded is the right of John A. McLean. It must be borne in mind, that the money was obtained from Phelps, by fraud; and that the plaintiff, the creditor of John McLean, stands in his place. In Enos v. Tuttle, ante 27., the money attached was due to Julius Bixby, on a promissory note ; but because in reality it was the debt of Green Bixby, the cover was stripped off; and the security admitted to make no difference. So, in Starr v. Tracy & al. 2 Root, 528., it was determined, that the goods of an absconding debtor, covered by a fraudulent conveyance, were liable to a foreign attachment for his debt. In the case of Enos v. Tuttle, before cited, the court adopted the principle, that the act relating to absconding debtors should receive the most liberal construction ; and that the debts attachable by one of its provisions, were not legal demands merely, but dues, in the broadest and most equitable sense of the term. Casting aside the forms of the transaction, and viewing it as if the money from John McLean had circuitously got into the hands of the defendant, for his use, which, in my opinion, is the truth of the case, the plaintiff has right to it, and the judgment of the court was correct.

It has been said, that the creditor can never draw money óut of the hands of the garnishee, which could not be drawn out by the absconding debtor. This principle is manifestly incorrect. In every instance of fraudulent conveyance, the grantor cannot recover, but unquestionably his creditor may. I consider the law of foreign attachment as of great utility, ahd would give it a liberal construction, to effectuate its <⅞. ject. I should regret extremely the adoption of principles, which would narrow the advantages of that act; and, in cases like the present, would give the defendant the benefit of objections in which he has no interést. It would not be very pleasant to stand by, and witness the fraudulent conduct of persons in the predicament of John A. McLean, crowned with success.

Peteus, J.

The statute, under which this question has arisen, being against fraud, is to be liberally and beneficially expounded; but not so liberally as to embrace those, who are neither parties nor privies to the fraud, who are neither the actors therein, nor the subjects thereof.

The plaintiff has acquired all the rights of the absconding debtor, or, in the expressive language of this court, “stands in his shoes,” and is entitled to recover* whatever goods, estate, or effects have been entrusted to the defendant, by the absconding debtor, for his own use, or conveyed fraudulently, which he could not himself recover. .But what fraud has ^ been committed, or effects entrusted ? John McLean, like an honest man, paid his debt in Ohio ; the evidence of that debt being in this state. The attorney of the creditor, not aware of what was done in Ohio, enforces payment here, not from the debtor, but his surety, and remits the money to his agent in Ohio, to be paid over to the creditor, who receives it not. John A. McLean, a son of John McLean, says to his friend in Ohio, “ my father says I may have this money; procure and send it to me.” This friend obtains and uses the money, and draws for the amount on the defendant, till then a stranger to all the parties, and all their acts. He accepts and pays this draft, partly in cash, and partly by a note to the payee; and this, says the plaintiff, constitutes the defendant the trustee of John McLean. But this money never was his. It was advanced, by his surety, by mistake, to pay his debt previously paid by him; and she had a right to reclaim it, or stop it in transitu- Had it returned to her, she might as well have been made trustee as this defendant; and with more propriety may every other person, through whose hands it has passed. This money is either Dilly’s, or Deborah McLean’s. Had it reached Dilly, John McLean could not have reclaimed it; because it never was his ; or, if it were hjs, a debtor, who pays his debt, and afterwards suffers it to pass into judgjnent* and pays it again, can never recover it back, by an original suit, at law or in equity, while that judgment remains in force. Marriot v. Hampton, 7 Term Rep. 269. Moses v. Macferlan, 2 Burr. Rep. 1005.

Suppose this money in the hands of Phelps, refused by DUly, and demanded by John McLean and Deborah McLean ; to which would the law raise a promise ? Indebitatus assumpsit is bottomed on equity, and the promise arises ex equo et bono. Or, suppose, with Lord Mansfield, “ an indorsee of a promissory note, having received payment of the maker, sues and recovers the same money of the endorsor, who knew nothing of such payment I know of no principle in law or equity, which would award this money to the maker, on setting aside the judgment. If Dilly has not renounced this money, he may now recover it of Phelps, for whom, its having been taken from him by fraud, .would be no defence. Did John McLean entrust, or fraudulently convey, goods, wares or effects to this defendant ? It does not appear, that they ever saw or heard of each other. Was the money obtained from Phelps, 'by fraud ? If so, by whom ? Not by this defendant, who had no agency in the transaction ; nor by John McLean ; for the motion does not state that he did it, or caused it to be done. The declarations of John A. McLean are not evidence against his father; and fraud is not to be presumed without proof. If Phelps has been defrauded, he has his remedy against the perpetrator; but it would not énure to the benefit of the plaintiff, or to the prejudice of the defendant.

This case has no affinity to Enos v. Tuttle. In that case, Green Bixby, tbs absconding debtor, with an intent to defraud his creditors, conveyed his property to Tuttle, and took a note payable to his son, who endorsed it to Guernsey, both being privy to the fraud; and this court, very properly, adjudged Tuttle the trustee of Green Bixby.

For these reasons, I am of opinion that the decision of the superior court was incorrect, and that a new trial ought to be granted.

Chapman and Bristol, Js. were of the same opinion.

Brainard, J. was absent.

New trial to be granted. 
      
       2 Burr. Rep. 1009.
     
      
      
        Levy v. Sank of the United States, 4 Dall. 234. Griswold v. Judd, 1 Root, 22.
     