
    Elbridge G. Dudley, Assignee vs. Daniel J. Coburn.
    A. sold out bis stock in trade to B„ for a small sum in cash, and the balance in notes, secured by a mortgage of the goods. Four days afterwards, a part of the same goods was attached by the defendant, a deputy sheriff, on a writ against A., as his property. B., by his attorney, the plaintiff in this action, immediately commenced an action of trespass against the defendant for the goods The action was defended on the ground that the sale to B. was in fraud of creditors and void, and a verdict was found for the defendant. Meantime A. filed his petition in insolvency, and in his schedule of assets were included the notes and mortgage above mentioned, but not the goods purchased by B. The plaintiff was chosen assignee of A., and, as such, and at the request of the creditors, bought back all the goods of B. which he had purchased of A., paying him therefor a certain sum in cash, and giving him up the notes and mortgage, and took a bill of sale of all the goods in the store, including those in the hands of the defendant. The plaintiff, as assignee, then demanded the goods of the defendant, and, on the defendant’s refusal to deliver them, brought trover for their value; and it was held that he was not estopped by his having prosecuted the suit of B. against the defendant, from setting up the property in the goods to be in himself, as assignee of A.
    This was an action of trover, by the plaintiff, as assignee of David Austin, to recover the value of a quantity of carpeting and furniture. It was submitted to the court of common pleas on an agreed statement of facts, whence it came to this court by appeal.
    David Austin was a furniture and carpet dealer, in Boston, and, on the ninth day of November, 1848, he sold out his stock of goods to one Royal Chase, who came to Boston, from Swansey, about that time. Chase paid a small amount in cash down, and gave his notes, to the amount of about $2,000, for the balance, on three, six, and nine months, seemed by a mortgage back on the goods. On the thirteenth day of the same November, the defendant, a deputy sheriff, by virtue of a writ, bearing date the eleventh day of Novem-Der, of one George Jackson against David Austin, attached the goods sued for in the present action, being part of those sold by Austin to Chase, and carried them away, together with $62.20 in money, received for goods sold out of the store, while the defendant was in possession of the same. On the eighteenth day of the same November, Chase, by the plaintiff, as his attorney, commenced an action of trespass against the defendant, for the same goods and money.
    On the fifteenth day of December following, Austin filed his petition with the commissioner of insolvency for the county of Suffolk, and was duly declared an insolvent debtor, and Coburn, the defendant, was appointed messenger. On the eighth day of January following, at the first meeting of the creditors, the plaintiff was duly elected assignee, and, on the fifteenth day of the same January, the plaintiff, as assignee, and at the request of the creditors, bought back all the goods of Chase, which he had purchased of Austin, and paid therefor $410 in cash, the same being money received by him as assignee, and gave up his notes and mortgage, and took a bill of sale of all the goods in the store, and also of those in the hands of the defendant, for which the present action was brought, and took, likewise, a power of attorney to prosecute his action against Coburn, which had been entered and was then pending in the court of common pleas.
    The mortgage and notes given by Chase to Austin were upon the schedule of the effects of Austin delivered to Dudley, as assignee, but the goods and chattels purchased by Chase of Austin were not contained therein. Dudley demanded the goods of Coburn, and offered to enter the action of Chase against him, in court, “ neither party,” if he would deliver him up the goods and money which he so held as the pr operty of Austin; but he refused so to do.
    At the following October term of the court of common pleas, 1849, the action of Chase against Coburn was tried, and at the trial, the defence, and the only defence, set up was, that the sale of the goods from Austin to Chase, on the ninth day of November, was fraudulent and invalid, being made for the sole purpose of hindering and delaying creditors in collecting their claims against Austin ; and that the title to the goods never passed to Chase, but remained in Austin, and they were, therefore, liable to be attached by his creditors. The plaintiff insisted that the sale was bond fide. The im-v could not agree, and the case was taken from them.
    
      At the following January term, 1850, the case was again tried, and the same defence set up. and the jury returned a verdict for the defendant.
    Subsequent to the first trial, and prior to the second and last, the plaintiff offered to enter a nonsuit and pay the defendant’s costs, provided he would give up the goods and money, but he refused so to do. Dudley argued the case for Chase to the jury, at the last trial. The defendant recovered judgment against Chase, for $136.35 costs, which Dudley paid, and again, as assignee, demanded of the defendant the goods and money; but he refused to deliver them up, whereupon he commenced the present action.
    Austin obtained his discharge at the third meeting of his creditors, in September, 1849. The writ of Jackson against Austin, on which the goods in controversy were attached, was entered at the January term of the court of common pleas, 1849, and the action continued from term to term till the following October term, when it was entered “ neither party.” The assignee had no knowledge of any fraud or design to cover the property from attachment, in the sale of Austin to Chase, and took no steps to set aside the sale, until after the decision of the action of Chase against Coburn.
    On the thirty-first day of October, 1849, Coburn delivered to Jackson the goods and chattels claimed in the present action, and sixty-two dollars and twenty cents, the money attached upon the suit of Jacks on as aforesaid, and took from Jackson a bond to indemnify him, Coburn, against all damages and claims, by all persons whatsoever, by reason of his so attaching and delivering the property to Jackson.
    If, upon the foregoing statement of facts, the court shall be of opinion that the plaintiff is entitled to recover, then the defendant is to be defaulted, and the damages assessed by a jury, or an assessor appointed by the court; but if the court shall be of the contrary opinion, then the plaintiff to become nonsuit, each party reserving the right to appeal.
    Judgment was ordered by Bigelow, J., for the plaintiff, and the defendant appealed to this court.
    
      H. II. Fuller, for the defendant.
    
      
      B. F. Hallett and E. G. Dudley, for the plaintiff.
   Dewey, J.

The particular history of the various proceedings in the suit of Chase against Coburn is of little practical importance, inasmuch as, after all those proceedings had terminated by a verdict of the jury and judgment of the court thereon, affirming the property in the articles now the subject of controversy to be in Austin, and not in Chase, the plaintiff, acting in his capacity of assignee of Austin, demanded of the defendant these goods, which demand the defendant refused to comply with.

The controversy between Chase and the creditors of Austin had terminated in favor of the latter, and the lien of the attaching creditors having been dissolved by the institution of proceedings in insolvency, no further right existed on the part of the defendant to retain the property. He had no interest in the same, but the property had wholly vested in the assignee of Austin, for the benefit of his creditors.

The fact that the plaintiff had, at an antecedent period, under an alleged purchase from Chase and a power of attorney from him, prosecuted the suit of Chase against the defendant, under the erroneous belief that Chase had a good title to the goods by purchase from Austin, does not estop the plaintiff from setting up, in this suit, the property in the same to be in himself, as assignee of Austin. The defendant has as uniformly heretofore asserted the property to be in Austin, as the plaintiff in Chase, and that issue between the parties was settled by a verdict and judgment thereon.

The estoppel is as strong against the defendant as the plaintiff, and thus neutralizes the objection, if it had any weight. Whatever errors may have attached to the course of proceeding on the part of the assignee, while prosecuting the suit of Chase against the defendant, the plaintiff is at last found pursuing his proper remedy, and we see no legal obstacle to his recovery. Judgment for the plaintiff.  