
    Isaac Damon versus Asahel Bryant.
    Where an officer, sued m trespass by a vendee of goods, contests the plaintiff's title on the ground of fraud, if he justifies under a writ of attachment against the vendor, he must show a debt against him 3 or a judgment, if he justifies under an execution.
    A sale made to defeat a claim which might be made under St. 1785, c. 66, § 2, for the maintenance of a bastard child, is fraudulent as against creditors. Semble.
    
    A sale made to defraud creditors is void as against subsequent creditors. Semble.
    Trespass for breaking and entering the plaintiff’s close and carrying away his goods. The writ was dated the 20th of February, 1824. The defendant pleaded the general issue, and filed a brief statement, in which he alleged, that as a constable he took the goods as the property of one Zenas Damon, by virtue of a writ against him in favor of one Gibbs, that judgment was thereon rendered and execution issued, and that he duly sold the goods by virtue of the execution.
    On the trial in the Court of Common Pleas, before Williams J., the plaintiff produced evidence of a sale to him of the goods in question, by Zenas Damon, in October 1819, and contended that he had proved a valid sale and a continuing possession.
    The defendant contended that this sale was fraudulent and void ; and he offered evidence tending to prove, that at the time when it was made, the vendor was threatened with a prosecution in behalf of one Adessa Thayer, upon St. 1785, c. 66, § 2, which provides for the maintenance of bastard children, and that the sale was made for the sole purpose of protecting the property against the claim and prosecution of Adessa Thayer.
    Upon this point the jury were instructed, that if the sale was not a bona fide transaction between the parties at the time, but was intended merely to protect the property, and t0 defeat the claim and prosecution of Adessa Thayer, it was void in law, and that the property might legally be attached and held, as well for debts subsequently contracted by the vendor, as for those then outstanding against him.
    The defendant offered in evidence the writ, by virtue of which he attached the goods, with his doings thereon duly endorsed, dated and served on the 7th of February, 1824, returnable on the 6th of March, and he proved by parol evidence that it had been duly returned. The plaintiff objected to the admission of the writ, unless the defendant would also show a judgment and execution, and also objected to the admission of the parol evidence ; but both of the objections were overruled. The plaintiff also required, previously to the admission of the writ, that the defendant should show a valid cause of action existing'in favor of Gibbs against the vendor ; but the judge admitted the writ without any such evidence, and instructed the jury that if the sale was fraudulent and void, the writ was a sufficient justification for the officer for making the attachment, whether the claim of Gibbs upon which it issued was a valid and bona fide claim or not.
    To these several directions of the judge the plaintiff filed his exceptions.
    
      E. H. Mills, in support of the exceptions, said that all the proceedings under St. 1785, c. 66, § 2, were in personam, and not against the property of the putative father, and therefore .a conveyance to avoid the effect of that statute did not come within the provisions of St. 13 Eliz. c. 5. But if the conveyance was fraudulent, it was valid as against the vendor himself, and could be avoided only by a party who was intended to be defrauded ; not by Gibbs, whose claim did not arise until after the sale.
      Sands v. Codwise, 4 Johns. R. 598 ; Drinkwater v. Drinkwater, 4 Mass. R. 357 ; Hawes v. Loader, Yelv. 196 ; Osborne v. Moss, 7 Johns. R. 161 ; Upton v. Bassett, Cro. Eliz. 444. As the plaintiff was not a party to the writ upon which goods were attached, and as they were taken out of his possession, it was incumbent on the defendant to show that Gibbs was a boná Jide creditor of Zenas Damon, and that the writ was returned, (which must be proved by the record,) and that a judgment was recovered upon the writ. Britton v. Cole, 1 Salk. 409 , Lake v. Billers, 1 Ld. Raym. 733 ; 1 Phillipps on Evidence, (1st Am. ed.) 294.
    
      Bates, for the defendant,
    contended that the writ itself was a protection to the officer, otherwise, in every case in which a plaintiff fails to recover, the officer is liable to the defendant in trespass. Britton v. Cole, ubi supra ; Belk v. Broadbent, 3 T. R. 183. The jury having found that the conveyance was made in fraud of the law, the case is the same as if the property continued in Zenas Damon.
    The opinion of the Court was read at April term 1825, in Hampshire, as drawn up by
    
      
       See 1 Dane’s Abr. p. 628, § 20.
    
   Parker C. J.

The objection taken at the trial, that the defendant gave no evidence of a debt from the supposed fraudulent vendor of the goods attached, we think is well maintained by the authorities. The distinction, which seems not to have occurred to the judge at the trial, is, that where the execution or writ upon which goods are taken is against the plaintiff himself, the officer is justified by the precept itself, for that commands him to take the goods of the plaintiff, and is a sufficient authority. But where the goods taken are claimed by a person who was not a party to the suit, and he brings trespass, and his title is contested on the ground of fraud, under the St. 13 Eliz. c. 5, a judgment must be shown, if the officer justifies under an execution, or a debt, if under a writ of attachment, because it is only by snowing that he acted for a creditor, that he can question the title of the vendee. The authorities to this point are Lake v. Billers, 1 Ld. Raym. 733 ; Bull. N. P. 91, 234 ; Ackworth v. Kempe, Doug. 41 ; Savage v. Smith 2 W. Bl. 1104 ; Bac. Abr. Trespass, G, 1. The case cited by the defendant’s counsel from 3 T. R. 183, is in conformity with the above, for the action was brought by the party arrested, and it was held that a writ was a sufficient justification of the creditor who caused the arrest, without showing a cause of action any other way than by affidavit of a debt.

It is not necessary to decide the other point, as a new trial must be had, but we are inclined to think that the opinion of the judge was correct, both as to the sufficiency of the particular demand to avoid the sale on the ground of fraud, and as to the right of a person, not a creditor at the time, but becoming so afterwards, to contest the sale on the ground of fraud. These points do not seem to have oeen expressly decided in our Court, but the tenor of the Engfish authorities is clearly in favór of the position. The words of St. 13 Eliz. are broad enough to include such a demand as existed against Zenas Damon, the vendor of the goods, so as to have given Adessa Thayer a right to contest the sale. If the purpose was to hinder or defraud creditors and others of their just and lawful actions, suits, debts, accounts, damages, penalties, forfeitures &c., it is void by the statute as against her. And we are inclined to think that any subsequent creditors may avail themselves of the fact to avoid the sale. Such seems to be the law as laid down in Roberts on Fr. Conveyances, and in many cases decided in chancery in England. But we mean to leave this point open for further argument, in case the verdict shall be for the defendant upon that ground, on the new trial.

JV*eto trial granted. 
      
       See also Harget v. Blackshear, 1 Taylor, 107 ; High v. Wilson, 2 Johns. R. 46 ; Jenner v. Joliffe, 6 Johns. R. 9 ; Barker v. Miller, id. 195 ; Blackley v. Sheldon, 7 Johns. R. 32 ; Holmes v. Nuncaster, 12 Johns. R. 395 ; Doe v. Smith, 2 Stark. R. 199 ; Weyand v. Tipton, 5 Serg. & Rawle, 332 ; Casanova v. Aregno, 3 Louisiana R. 211.
     
      
       See Fox v. Hills, 1 Connect. R. 295.
     
      
      
        Beach v. Catlin, 4 Day, 284 ; Merrill v. Meachum, 5 Day, 345 ; Mason v Rogers, 1 Root, 324.
      A fraudulent conveyance may be avoided on the ground of actual fraud, by a subsequent creditor. Wadsworths. Havens, 3 Wendell, 411 ; Reade v. Livingston, 3 Johns. Ch. R. 481. See also Gilmore v. North American Land Co., 1 Peters’s C. C. R. 460 to 464 ; Thompson v. Dougherty, 12 Serg. & Rawle, 448 ; Jackson v. Tunno, 3 Desauss. 1 ; Ridgeway v. Underwood, Circuit Court of U. S., Wharton’s Penn. Dig. 210 ; Salmon v. Bennett, 1 Connect R. 525 ; Howe v. Ward, 4 Greenl. 195 ; 1 Story on Equity, 348.
     
      
       See Bull. N. P. 257 ; Lush v. Wilkinson, 5 Ves 384 ; Russel v. Hammond 1 Atk. 15 ; Middlecombe v. Marlow, 2 Atk. 220 ; Lord Townsend v. Windham. 2 Ves. sen. 1, 10 ; Hungerford v. Earle, 2 Vern. 261.
     
      
      
        Lowry v. Pinson, 2 Bailey 324 ; Jackson v. Myers, 18 Johns R. 425
     