
    Stephen W. Marston and Others versus Jacob Coburn
    A debtor, in failing circumstances, assigns all his property, except his household furniture, to certain trustees, for the payment of all his debts pro rata. The assignment purported to be a tripartite indenture between the debtor, the trustees, and the creditors who should execute it. It was executed by the debtor and the trustees ; and then taken by the debtor, to procure its execution by his creditors; no counterpart having been made. After some of the cred itors had executed, and before it was delivered to the trustees, the goods were attached by another creditor; and the attachment was held good against the title of the trustees.
    Replevin for certain goods. Plea, property in one James Kimoall; and avowry for a return, that the defendant, a deputy sheriff, &c., attached the goods upon mesne process, at the suit of Messrs, jReed Of Sail against Kimball. Replication, that the property was in the plaintiffs, and issue thereon.
    This issue was tried at the last April term in Ipswich before Putnam, J. The plaintiffs claimed as assignees of James Kimball, in virtue of an assignment to them made on Saturday, the 26th of February, 1820, of all his stock in trade, whether at home or abroad; all his debts, whether by notes or accounts; two pews in a meeting-house in Newbury pan and all other property, which he then had in possession; and all rights affecting the same; excepting only his household furniture. The assignees were to hold the property in trust, to be distributed among the creditors of Kimball, who should become parties, according to their respective demands, and in full satisfaction; and the residue, if any, to be paid to the assignor. This paper purported to be an indenture of three parts; Kimballbemg * one party, the assignees, &c., [ * 455 ] the second, and the creditors of Kimball the third. It was executed at Kimball’s store, in Newburyport, by Kimball and the assignees at the same time, on Saturday night; and it was agreed between them, that Kimball should go to Boston on Monday, to procure the creditors to execute it. The store was to remain open until Monday night, when the keys were to be delivered to the assignees. Kimball was to bring back the assignment, after it should have been executed in Boston by the creditors there, and deliver it to the assignees. No counterpart was ever written.
    No account or schedule of the goods was taken, and nothing was done by way of delivery, at the time the assignment was executed by Kimball and the assignees ; but the agreement was to deliver the possession, with the store, on Monday night; and until that time, it was to be a confidential business. W. Kimball, the son of James, kept the store open on Monday, and at night delivered the keys, with what money he had received for the sale of goods, to the assignees. On Tuesday morning, Kimball’s failure became known, the shop not being opened, and was a subject of general conversation.
    On Monday, Kimball proceeded to Boston, to obtain the execution of the assignment by his creditors there; and he procured the signature of three of them, whose debts together amounted to more than 1700 dollars, the greater part of which was payable at a then future day. He returned, with the assignment so executed, to Newburyport on Wednesday, the said Bead 8f Hall having caused the goods to be attached in his absence.
    The trustees paid no pecuniary consideration for the assignment; the value of the goods assigned was estimated at more than 5000 dollars. After the attachment, several other creditors of Kimball executed the assignment.
    The defendant offered to prove that Kimball acted a fraudulent part in the making of the assignment, by withholding goods for his own account, and otherwise conducting * himself fraudulently, to delay and defraud his creditors. [ * 456 ] But it being admitted by the defendant, that the assignees were not privy to the same, and that they acted innocently, the evidence was rejected.
    
      A verdict was returned for the plaintiffs, subject to the opinion of the whole Court on the premises.
    
      Prescott, and Marston, for the plaintiffs.
    
      Pickering, and Webster, for the defendant.
   Wilde, J.,

delivered the opinion of the Court.

This case depends on the conflicting claims of the creditors of one James Kimball, an insolvent debtor; each one seeking security and satisfaction of his debt from the goods and effects of the debtor, The plaintiffs claim as trustees for sundry creditors, by virtue of an assignment made to them on the 26th of February, 1820; and if that assignment was valid at the time of its execution, so as to pass the property to the trustees, their title must prevail; as the attachment, under which the defendant claims, was not made until the first of March following.

Two objections have been made to this assignment. 1st. That it was not completed at the time of its execution by Kimball and the trustees, nor until after the attachment made by the defendant. —2d. That if it was, it was fraudulent and void against creditors, not being parties to it.

As to the first objection, it cap not be denied that the assignment was incomplete on the 26th of February. If nothing further had been done by the contracting parties after that time, the indenture would have been void and inoperative, even between the parties who had executed it. For it is manifest that the parties, named in the indenture of the first and second part, did not intend that the assignment should stand good, unless the indenture should be executed by some of the creditors of Kimball. This appears from the indenture itself, and from all the evidence in the case. [ * 457 ] *But if such had been their intention, and there had been an express agreement that the assignment should be good and absolute without the assent of the creditors, it is very clear that such an agreement would have been fraudulent and void. For in such case, there would have been no consideration for the assignment.

We are next to determine as to the legal effect produced by the signatures of the three creditors on the 28th and 29th of February. —If Kimball, on procuring these signatures, had delivered a counterpart of the indenture to the trustees, or to the creditors for their use; the contract might have been considered as complete . But this was not done, until after the attachment made by the defendant. In the mean time, Kimball had possession of the indenture, for the purpose of procuring the signatures of other creditors. He had the power, and, for aught we can perceive, the right to cancel it; or to refuse to deliver a counterpart, if his other creditors had refused their signatures. His professed, and without doubt, his real object was, to obtain a discharge of his debts; and if this object could not be obtained, he might well refuse to consummate the proposed assignment.

The amount of the debts due to the three creditors in Boston, who executed the indenture, was only about 1700 dollars; and they could not reasonably require of Kimball to transfer any more property than would be sufficient to raise this sum and intervening charges; whereas the amount of property included in the assignment is stated at about 5000 dollars.

But if Kimball had béen bound to deliver the deed, it is a sufficient objection to the title of the plaintiffs, as to the property in question, that it was not in fact delivered until after the attachment made by the defendant.

This was not an ordinary sale of goods, which may be good without the delivery of a bill of sale, or a bill of parcels. It was an assignment of the debtor’s whole estate, household furniture excepted, to the trustees, for * the purpose of [ * 458 ] discharging his debts. No price was agreed upon, as to any of the goods or property; nor was any thing paid therefor. All the terms of the contract, the stipulations of the several parties, and the consideration, are set forth in the indenture; and until this was delivered to the assignees, the assignment was incomplete. Wheth er there was any delivery to them on the 26th of February, does not appear; but if there was, it was inoperative; being the mere formal delivery of an instrument not then completed. Such a delivery could not have given validity to a defective deed.

This being the opinion of the Court, as to the first objection to the title of the plaintiffs, it is unnecessary to consider the second. The verdict must be set aside, and the plaintiffs must be called.

Plaintiffs nonsuit. 
      
       [It is not necessary that there should be more than one part executed; and that may be held by either party. If that party destroy it, the other may prove the contents. 4 Barton EL Conv. 82.—Shep. Touch, by Preston, 53.—Reed vs. Brookmin, 3 D. & E. 151.—Doe d. Garsons vs. Knight. 8 D. & R. 348 ; 5 B. & C. 451.—Simpson vs. Sikes, 6 M & S. 295.—Johnson vs. Baker, 4 B. & A. 440.—Murray vs. Stair, 3 D. & R. 278 ; 2 B. & C. 82.—Ed.]
     