
    Elijah A. Gould versus Henry Ward.
    An agreement on the part of a vendee of a chattel which is left in the possession of the vendor, that he will conceal the fact of his having purchased, is not per se a fraud which will avoid the sale as against creditors of the vendor, but is only matter of evidence, open to explanation.
    Trover for two horses. It was agreed that the action should be submitted to the determination of this Court upon the report of referees, who had been appointed in the Court of Common Pleas.
    The referees reported, that on the 23d of September, 1824, one Swan, then the owner of the horses, transferred them by a receipted bill of parcels to the plaintiff, who had a debt against Swan to a greater amount than the estimated value of the horses, and, as the referees believed, it was the bond fide 
      intention of the parties that the horses should pass in part payment of the debt. Immediately after the transfer, Swan requested and obtained permission of the plaintiff to take the horses back to the barn from which they bad been brought, and to have a limited authority to use them. At the time of the transfer, or the next morning, and before the transaction was known by any person, except the parties and two witnesses to the transfer, Swan requested the plaintiff and the witnesses not to mention the sale to any one ; to which the plaintiff agreed. The two horses were attached, at the suit of the defendant, on the 27th of November, 1824, for a cause of action which accrued in May 1823.
    
      April term, 1826.
    If the Court should be of opinion, that the agreement of the plaintiff not to mention the sale, was a distinct and independent fraud which would avoid the sale with respect to creditors, notwithstanding the bond fide intention of the parties to pass the property, then the referees awarded in favor of the defendant ; but otherwise, in favor of the plaintiff.
    The case was argued in writing. E. H. Mills, Shepley, and Ashmun, for the plaintiff,
    cited Brooks v. Powers, 15 Mass. R. 244, [Rand’s ed. 248, n. (a)].
    
    
      Bigelow and Brooks, contra,
    contended that the sale was not valid against the defendant, 1. for want of accompanying possession in the plaintiff, or a sufficient reason for his omitting to take possession ; Lanfear v. Sumner, 17 Mass. R. 110; Bartlett v. Williams, 1 Pick. 288; Edwards v. Harben, 2 T. R. 587; Sturtevant v. Ballard, 9 Johns. R. 337: — 2. because the agreement of secrecy was a fraud upon the creditors of the vendor ; Wendell v. Van Rensselaer, 1 Johns. Ch. R. 354, and cases there cited ; Homes v. Crane, 2 Pick-611.
    
      
       See Ulmer v Hills, 8 Greenl. 326; Reed v. Jewett, 5 Greenl. 96
    
   Per Curiam.

The parties having by the reference chosen their own judges, and agreed to abide by their report, we are not at liberty to consider any question but that which is distinctly presented to us by the referees : and that is, whether an agreement on the part of the plaintiff to conceal the fact of his having purchased, is per se fraudulent, and so avoids the sale to him. And we are of opinion that it is mere matter of evidence, strong perhaps against the plaintiff, but still only evidence, capable of explanation, and therefore, according to the agreement of the parties, judgment must be for the plaintiff on the report. 
      
       See Ward v. Gould, 5 Pick. 291.
     