
    Amos Boyden versus Lyman Moore.
    tn trespass for taking horses claimed by the plaintiff under a sale alleged by the defendant to be fraudulent as against creditors of the vendor, the plaintiff offered evidence to show, that after the sale he directed the vendor to take the horses to an inn and get them kept at the plaintiff’s expense, and that on the next day he himself told the innkeeper that he owned the horses by virtue of a bill of sale and would pay for their keeping. It was held, that these declarations of the plaintiff were admissible as part of the res gestee.
    
    In an action of trespass against an officer, by whom goods claimed by the plaintiff were attached on several writs sued out by creditors of another person and were at their request sold on mesne process, one of the creditors who has discontinued his suit is not a competent witness on behalf of the officer, to prove that the goods were the pioperty of the debtor and not of the plaintiff 3 for in case the officer succeeds in his defence, the expenses of the sale will be a charge against the fund in his hands, but if he fails, they will be a charge against the creditors a* whose request the sale was made.
    Where goods assigned to a creditor in trust to pay himself and other creditors, were attached at the suit of some of the creditors as the property of the assignor, before the assignment had been assented to by any creditor besides the assignee, and the value of the goods exceeded the amount of the assignee’s demand, it was held, in an action of trespass brought by the assignee against the attaching officer, that the measure of damages was the amount of the plaintiff’s demand against the assignor, and not the value of the goods.
    Trespass against a deputy sheriff for taking and carrying away four horses, a wagon, &c. The defendant pleaded the general issue, and filed a brief statement.
    At the trial before Putnam J. it appeared, that the chattels were once the property of Charles Boyden, the plaintiff’s son. Both parties claimed under Charles, — the plaintiff, by virtue of a transfer from him in January 1831, and the defendant, by virtue of an attachment on mesne process in favor of John D.0 Miles against Charles, made about a week after the transfer.
    To prove the transfer and delivery of the chattels, the plaintiff introduced two witnesses, who testified that they were called to witness the sale and delivery, and that Charles said to the plaintiff, “ take the property, do the best you can with it, pay yourself and pay the rest to my creditors.”
    The defendant proved, that after the transfer, and on the same evening and the morning following, Charles was at Brook’s inn in Templeton, in possession of the property.
    The plaintiff then offered to prove, that within one hour after the transfer, he directed Charles to take the property to Brooks’s and get Brooks to keep it at the plaintiff’s expense, and that the next morning the plaintiff went to Brooks and told him that he owned the property by virtue of a bill of sale, and that he would pay him for keeping it. To these declarations of the plaintiff the defendant objected, but the judge admitted them as part of the res gestos.
    
    The defendant offered one Lewis as a witness. The plaintiff objected to his competency, because it appeared that he had directed the defendant to attach the same property on a writ sued out by him against Charles, and had united with Miles in an application to the defendant to sell the same on the writs ; which had been done. It further appeared, that Lewis stopped his action and it was never entered in court. The judge sustained the objection and the witness xvas rejected.
    A verdict was found for the plaintiff. If the evidence received ought to have been rejected, or the evidence rejected ought to have been received, a new trial was to be granted.
    The jury were instructed, that inadequacy of consideration was to be considered by them as tending to prove the transfer to have been fraudulent, but that (unless it were gross) it xvas not per se conclusive proof of fraud ; that notwithstanding, at the time of the transfer, there was no written discharge of the debt due from Charles to the plaintiff and no written undertaking on the part of the plaintiff to pay the debts for which he xvas surety for Charles, yet as he received the property upon the terms before stated, the want of such written discharge and undertaking did not render the transfer void ; and that if ,the property exceeded the amount of the plaintiff’s demand and liabilities, and a creditor of Charles had summoned the plaintiff as trustee, the surplus would have been held by such an attachment. All the circumstances tending to prove that the transfer was fraudulent as against creditors, were submitted to the jury
    The jury found the damages to be $ 177, if the rule of damages should be (as the judge directed, the value of the property taken. But if the rule of damages should have been the sum due to the plaintiff and the amount of liability assumed by him for Charles, (as the defendant contended,) then the damages were to be $ 127-55, and the verdict was to be reduced to that sum ; unless, for the reasons before assigned, a new trial should be granted.
    
      Sept. 30th
    
    
      Sept. 27th
    
    
      M. Smith and H. G. Newcomb, for the defendant.
    The plaintiff’s declarations were not part of the res gestae, the one to Charles not being made at the time of the transfer, and the other to Brooks, claiming the property, not being made at the time of leaving the property at the inn, nor by the person by whom it was left.
    Lewis was a competent witness. He had no lien on the property, and as he gave the defendant no bond of indemnity, he would not be liable to the defendant in case it should appear that the property attached did not belong to the debtor. 2 Stark. Ev. 744 et seq. ; Marshall v. Hosmer, 4 Mass. R. 60 ; Marsh v. Gold, 2 Pick. 285.
    The plaintiff gave no discharge of his demand against Charles, nor assumed any definite trust to pay Charles’s creditors, and the transfer is therefore void as against creditors for want of a consideration. Widgery v. Haskell, 5 Mass. R. 144 ; Hatch v. Smith, ibid. 42 ; Stevens v. Bell, 6 Mass. R. 339.
    
      Wells, for the plaintiff,
    cited, in regard to the measure oí damages, Martin v. Root, 17 Mass. R. 222.
   Shaw C. J.

delivered the opinion of the Court. The horses, the property in controversy, having been attached as the property of Charles Boyden, son of the plaintiff, by a process, valid as against the son, by the defendant, and being claimed by the plaintiff under an assignment prior in point of time, the question is upon the validity of this assignment. The fact that the vendor was in the possession of the property, after the assignment, was proper evidence to the jury, of fraud in the sale. To repel the conclusion arising from this fact, the plaintiff offered evidence to show, that after the sale Jie directed his son to take the horses to Brooks’s inn, in Temple-ton, and get the horses kept at his expense, and that he himself went to Brooks’s the next day, and told him that he owned the horses, by virtue of a bill of sale, and would pay for the keeping of them. This was objected to as being the plaintiff’s own declarations ; but we are of opinion, that it was rightly admitted, not as proof of the facts alleged, but as part of the res gestee. It showed, that he was incurring expense, and charging himself with a debt, and that as owner and principal, in which character a mere parol promise was binding, not as a surety or guarantor for his son, which would have required a promise in writing. It tended to show that the possession and acts of the son, were those of an agent. That part of the declarations, in which he said that he owned the horses under a bill of sale, was made immediately after the sale, before any attachment or other adverse claim intervened, to a person having the custody of the horses, and who might be called upon for information, and was we think competent, as proof of notoriety, and to repel the suggestion of secresy, arising from the fact relied upon, that notwithstanding the supposed sale, the property remained in the custody of the vendor. In all these respects, those declarations were acts done, and were competent evidence to repel the charge of fraud.

Another question arising from the report is, whether Lewis was an incompetent witness, under the circumstances stated If he had a pecuniary interest in the event of the suit; if he were to acquire any valuable legal right, or exempt himself from any pecuniary liability, he was incompetent, although such interest was small or remote.

The circumstances were, that Lewis was an original attaching creditor ; that he had directed the defendant to attach the horses, as the property of Charles Boyden, and had joined with others in an application to the officer to sell the property on mesne process, pursuant to the statute, which was done. It further appeared, that he had discontinued his suit, before he was called as a witness.

Till his suit was discontinued, there could be no question ; the attaching creditors being considered as the real party in interest, and the officer defending as trustee for them. The question then is, whether the discontinuance of the suit, whereby he ceased to be an attaching creditor, removed the disability. The consideration, that he acquired a strong bias am. prejudice, whilst acting with other attaching creditors, in measures to defeat the plaintiff’s title, would go to his credit, not to his competency.

It has been argued, that where the attaching creditor gives a specific direction , to an officer, to attach certain property, the title to which may be contested, such attaching creditor is under an implied obligation to indemnify the officer against

such taking. No direct authority was cited in support of that position ; but we do not think it necessary to give any opinion upon that question, because we are of opinion, that upon another ground the witness was interested.

The witness joined with other attaching creditors in an application to the officer to sell the goods, in pursuance of which they were sold. Such a sale must be attended with expenses.

If the officer succeeds in this suit and holds the goods, these expenses are chargeable upon the fund, the officer being answerable to creditors only for the net proceeds, deducting expenses. But if the officer fails, these expenses must be a charge upon his employers, the attaching creditors. Acting as their agent, and incurring charges at their request, would render them liable. From such liability the witness could not become exempt by discontinuing his suit. He therefore had an interest in the event of the suit, and was rightly rejected as incompetent.

Upon the question of damages, we think that the direction, as a general rule, was right, but that under the circumstances of the present case, the verdict should be entered for the amount of the plaintiff’s own debt. This was an assigmnent to the plaintiff of property in trust to sell, and from the proceeds to pay his own debt, and pay over the surplus to the creditors of the assignor.

It results from a series of decisions in this commonwealth, that an assignment in trust to pay the assignees themselves, and other creditors parties and assenting thereto, is valid ; and that an assignment to one to pay creditors, who are not parties or assenting thereto, is void as against the creditors of the assignor. It has also been held, that where time is allowed for creditors to come in, if the property be attached before the creditors have, all come in, the attaching creditor takes precedence of a creditor who shall afterwards become party to the assignment. Russell v. Woodward, 10 Pick. 408. This system may be peculiar to this commonwealth, but it rests on a series of decisions, under which it has gradually been formed, and is now firmly established. C-onformably to the rule thus established we consider this assignment, so far as it was made to secure an existing debt to the assignee himself, as valid and binding ; so far as it exceeded that in value, it was a naked trust for creditors, and was void against attaching creditors. The verdict is therefore to be reduced to the smaller sum, and judgment rendered upon it. 
      
       See Bradford v. Tappan, ante, 79, note.
     