
    Samuel Hastings versus Luke Baldwin.
    An indenture, purporting to be an assignment by A, of his whole stock in trade to B, a creditor, in trust for himself and such other creditors of A, as should execute the same within a limited time, was held to be a valid assignment; although there was no evidence of its execution by any other creditor oí A; the value of the property assigned not exceeding the amount of S.’s demand, so much as to furnish a presumption of fraud.
    Replevin of sundry articles of merchandise. The defendant pleaded property in one Thomas Holt in bar, and an avowry of taking the goods, as a deputy sheriff of this county, upon a writ of attachment sued out from the Boston Court of Common Pleas, against said Holt, by one of his creditors, on the 3d of December, 1819; to which the plaintiff replied property in himself; upon which issue was joined, and tried at the last March term here, before the chief justice.
    To maintain this issue, the plaintiff offered in evidence a writ of attachment, bearing date the 29th of November, 1819, sued out by him against Holt, in which he stated his claims at 9200 dollars, and which was served on the 30th of that month, late in the afternoon, by an attachment of the whole of the stock in trade of Holt, including the articles replevied. He also offered in evidence an indenture purporting to be of three parts, conveying to him the aforesaid stock; in which Holt was stated to be the party of the first part; the plaintiff of the second part; and such of the creditors of Holt, as should within sixty days from its date execute the same, of the third part. The execution of this indenture by Holt and the plaintiff was proved to have taken place on the 1st of December, 1819. Two parts only of the indenture being produced, the defendant objected to its admission in evidence, as it did not appear that it had been executed by the party of the third part.
    This objection was overruled, and a delivery on the 1st of December, of the property assigned by the indenture, [ * 553 ] *was testified to by the clerk of Holt; who stated, that he had been deputed keeper of the property under the attachment of Hastings; and that on the delivery Holt said, “ I give you possession from the floor up to the heavens; ” that he, the witness, was thereupon appointed by Hastings to conduct the sales in the store, which had been occupied by Holt, the latter according to a provision in the indenture remaining there for some days after with his sons, to assist in effecting the sales. There was no secrecy in the transaction, and persons who came into the store were informed of the assignment to Hastings. The sign of Holt was taken down in the evening of the 3d of December, and a sign procured by Hastings, with the witness’s name thereon as agent, was placed in its stead.
    After the delivery of the merchandise under the indenture, the writ of Hastings against Holt was discharged. It appeared, however, that, after the service of the writ on the 1 st of December, some sales were made and the proceeds claimed by Holt, until the delivery of the goods to Hastings under the assignment. An imperfect schedule of the property assigned, comprising the bulky articles, being about one half the value of the whole stock, was annexed to the indenture at the time of its execution; and it was not afterwards completed, the clerk stating that it was impossible to take an account of the whole in less than three or four days. After the delivery of the indenture, the' books were kept in the name of Hastings, and bills were made out in his name, or in that of the agent.
    The plaintiff, in further support of the issue on his part, offered in evidence a writ of attachment, sued in the name of David Hinckley, against Holt, and Hastings as his trustee, which was served on the trustee on the same 1st of December, and on which judgment was rendered, by the default of principal and trustee, at the January term of the Boston Court of Common Pleas, for 13,554 dollars, 8 cents, damage and costs. The declaration in that writ counted upon a promissory note, made by Holt * to Hinckley, of even date with the writ, for 18,000 [ * 554 J dollars, payable on demand. This note was not filed in the case, but additional counts, declaring on the same causes of action, viz,, certain promissory notes, which had been long due, and which were filed at the January term; and the damages recovered were for these causes of action. The admission of this writ and judgment was objected to, but the judge permitted them to go in evidence.
    At the time that Hinckley's writ was sued out, he was absent in the country; and it appeared that the writ was drawn by Hastings's attorney, who had prepared the assignment, as well as Hastings's writ before mentioned. No evidence was adduced of any other proceedings under the judgment against Hastings, as the trustee of Holt. But on cross examination of the plaintiff’s witness, it appeared that, about three or four months subsequent to the assignment, the claims of Hastings having been satisfied out of the proceeds of the stock assigned, except 1100 dollars, for which Hinckley gave his promissory note to Hastings, the residue of the stock was put up at auction, and the greater part of it bought in, by the witness, for Hinckley, and the amount applied towards the satisfaction of the execution of Hinckley against Hastings as the trustee of Holt. After this Hinckley constituted the witness his agent, and he continued in that capacity to conduct the business of the store, down to the time of the trial, the stock being replenished by Hinckley.
    
    In the recital of the indenture, a copy of which was in the case, it was stated, that Holt was indebted to Hastings in the sum of 6650 dollars, and to divers other persons in considerable sums; and in particular to Hinckley in the sum of 18,000 dollars, and was desirous of making a conveyance of all his goods and chattels, and other personal property of every description in his store, as well as a pew in a certain meeting-house, for the purpose of paying such debts as he might owe to the United States, as also his [ * 555 ] said debts to Hastings and to Hinckley, and to * pay those of his creditors who should, within sixty days, execute the indenture.
    At the time of the attachment made by Hastings, Holt was indebted to him in about 700 dollars only ; but Hastings was his surety and endorser to a large amount. It was proved that in April, 1820, Hastings settled an account with Holt, as his assignee, by which it appeared that the true amount of Hastings’s liabilities, all of which had become due before that time, including sums paid on custom-house bonds, expenses of the attachment, assignment and vending of the property, and 100 dollars for the services of Hastings, was 4212 dollars, 41 cents.
    The creditor, on whose attachment this replevin was sued, entered his action, and in April, 1820, obtained judgment against Holt for 1090 dollars, on which an execution had issued, and remained unsatisfied at the time of the trial.
    It appeared in evidence, that the notes declared on in the writ of Hastings against Holt, by which the stock of the latter was attached while the indenture was preparing, bore date or were made at the time of a former attachment or assignment; under which Hastings then obtained possession of Holt’s stock in trade, and which was afterwards released by him.
    Upon these facts it was contended, on the part of the defendant, that the assignment by the indenture of the 1st of December, was fraudulent, and void in law as against the attaching creditor.
    A verdict was returned for the plaintiff, by consent of parties, subject to the opinion of the Court; and it was to be set aside, and a verdict entered for the defendant, as the Court should direct.
    
      Webster and Aylwin, for the defendant.
    
      Prescott and Orne, for the plaintiff.
   Parker, C. J.,

delivered the opinion of the Court.

The indenture, under which the plaintiff claims a right to the property replevied, was intended to be tripartite between L * 556 ] * Holt, Hastings, and such other creditors of Holt as should sign and seal the same. It was executed only by Holt and Hastings ; and the first objection made to the verdict is, that it is an incomplete instrument, and ought not to have been received in evidence.

Had Hastings been constituted merely a trustee by the instrument, without any interest in the property himself, the objection would be valid; for as none of the creditors became parties, there would have been no cestui qui trust; and the trust-estate or right in Hastings would have wholly failed. But Hastings was himself a creditor, and one for whose use the trust was principally created, as he was first to be provided for out of the funds, after the debts due to the United States were paid. His signature, therefore, must be considered as having a double effect, both as trustee and as creditor; and thus the deed is formally good, there being no legal necessity, if the transactions were bona fide, that Hastings should lose his security, because other creditors refused to come into the measure.

Whether the assignment is fraudulent, is therefore the only question to be considered; and as the question is referred to us as matter of law, we must determine whether the facts and circumstances proved in the case necessarily prove fraud. For if it be mere matter of inference from those circumstances, whether the assignment be fraudulent or not, the question should have been left to the jury, and not referred to the Court.

It appears in the case that Holt was indebted to Hastings, at the time of the assignment, to the amount of TOO dollars, at least; and that Hastings was then under legal liability for Holt to a much larger amount. He had actually commenced an attachment upon the property, which was afterwards assigned, and the whole was in the custody of the officer, who made that attachment. Hastings was then in a situation to receive the property, by the assent of Holt, in satisfaction of his debt, or as a pledge to secure it; it being perfectly competent to Holt, although insolvent, to pay or secure his debt to Hastings alone, if he saw fit.

* If the property assigned did not exceed the amount [ * 557 ] of Hastings’s demands for debt and liability, so much as to furnish presumption of a fraudulent intent to conceal it from other creditors, the assignment, whether absolute or conditional, would be valid. In this case there was such excess, that if the assignment had purported to be for the benefit of Hastings alone, such a presumption might have been warranted. But as provision was made for another creditor, whose debt alone, if it had stood first, would have consumed the whole amount of the property, and yet have been but partly satisfied; and as provision was likewise made for other creditors, if they chose, to become parties, the presumption of fraud is rebutted. At least, fraud under such circumstances cannot be considered by the Court as established. With respect to possession under the assignment, and notoriety as to the change of property, the facts reported leave the case without suspicion

But the actual demand of Hastings, when adjusted between him and Holt, turned out to be considerably less than the sum assumed in the deed as due to him, for which he had a right to retain out of the proceeds. If this were known at the time, and the debt was enlarged in order to secure to Hastings a greater proportion of the proceeds than honestly belonged to him, this circumstance would afford strong evidence of fraud. But the liabilities existing at the time of the assignment were probably taken as the basis of calculation ; and the reduction afterwards, in consequence of Holt’s paying some of the debts himself, would have been a sufficient answer to the suggestion.

If a creditor takes a larger amount of property to secure himself, than turns out to be necessary; and this by mistake, and without fraudulent design, his security for what is actually due will not be vitiated; but he will be answerable as trustee for the surplus.

If in such case the assignment was bona fide, as the debtor had a legal right so to dispose of his property, we do not see [ * 558 ] how the possession of the assignee can be interrupted * by an officer, in behalf of any other creditor. In the case supposed, all the goods are rightfully transferred; and it would seem impossible to sever a part of them, as subject to attachment. For it will be always difficult to ascertain, whether by such act the right of the creditor, intended to be secured, is not impaired. The trustee process is the proper remedy in such case, and the creditors, who are not favored by the debtor, will generally be as secure, for such portion of the funds as may. exceed the debt for which they are assigned, as they could be by an attachment. Where the assignment is fraudulent, as in the case of Burlingame vs. Bell, 16 Mass. Rep. 318, the creditors may proceed, either by the trustee process, or the ordinary mode of attachment.

In the case before us, the plaintiff in this suit was summoned by Mr. Hinckley, as the trustee of Holt, after the assignment, and before the attachment made by the defendant in this suit. It appears, by the issue of this process, that the goods assigned fell much short in value of the actual demand of the plaintiff against Holt, together with the debt of Hinckley, the plaintiff in the trustee process. The plaintiff was adjudged trustee in that suit, and judgment was rendered against Holt, the principal, and the plaintiff as trustee, for the amount of 13,554 dollars, 8 cents, for which amount execution issued against the principal and trustee.

It was suggested that this transaction was collusive, and that the plaintiff ought to have resisted Hinckley’s suit. But the debt to Hinckley appears to have been bona fide; and if, by virtue of any agreement between him and the plaintiff, the latter was content to suffer judgment to go by default, the rights of other creditors do not seem to be affected. For Hinckley had obtained a lien before any of them ; and it is not pretended that there was property enough to satisfy his whole debt; and the trustee would be answerable on execution, only for so much of the property as exceeded his own demands.

* That the plaintiff aided Hinckley in obtaining security, [ * 559 ] by causing an attachment in the form of a trustee process to be served, cannot be of importance; Hinckley being an actual creditor, and it being the intention of the assignment to secure him ; which could not be done by reason of his absence. Hinckley assented to the suit, and this ratified the act, which might at first have been without authority.

We do not perceive how the rights of the plaintiff can be affected by any supposed defect or error in the judgment, which Hinckley obtained against Holt; as, if it were fraudulently obtained, he does not appear to be privy to the fraud. The amendment of the declaration was allowed by the Court of Common Pleas, and by the amendment the nature of the demand was not changed, nor was the demand enlarged. Probably the note for 18,000 dollars was given to cover all unadjusted demands, to enable Hinckley to commence his suit; and the substitution of other notes, which were part of the consideration of this, was thought might reasonably be allowed as an amendment. But whether the Court of Common Pleas did light in allowing the amendment, or not, seems to be immaterial in this case between these parties; as Hastings had no control over the action between Hinckley and Holt, any further than related to his own character as trustee. He could not have prevented the amendment, and indeed could not be heard on the subject.

Judgment on the verdict.  