#### * Francis Gates *versus*Elisha Gates.

A chattel was attached on mesne process instituted for a demand justly due; but, by means of the defendant’s filing his demands as a set-off in the action, he recovered a balance due him, with costs. A third person, claiming under a sale from the original defendant, replevied the chattel from the attaching officer, pending the suit It was holden that the officer might avoid the sale as fraudulent, in the replevin suit; although, after the judgment in the original action, the purchaser might have a right to the chattel as against him, he having no execution to levy upon the property.

This was an action of replevin for a horse. The defendant pleaded property in one *George Spencer.*The plaintiff replied that the horse was his property, on which issue was joined.

Trial was had, at the sittings here after the last October term, before *Putnam,*J. The plaintiff offered evidence tending to prove that *Spencer*had sold and delivered the horse to him. The defendant proved that he was a constable, and attached the horse at the suit of one *Gustavus Jewell,*and by his express direction, as the property of *Spencer. Jewell,*being then reputed a man of property, gave the defendant a bond of indemnity ; but he has since become insolvent, and was indebted, at the time of executing the bond, to nearly or quite the whole amount of his property. The defendant also offered evidence tending to prove the sale by *Spencer*to the plaintiff fraudulent and void as to creditors.

It appeared that *Jewell’s*action against *Spencer*was upon a promissory note, which was justly due ; and that *Spencer*filed an account as a set-off, and recovered a balance against *Jewell,*with costs. The plaintiff, in replevin, objected that *Jewell*was not a creditor of *Spencar,*and had no right to avoid the sale, even if it had been fraudulent and void as to creditors ; and that the constable could not be in a better situation, in that respect, than *Jewell.*But the defendant was permitted to offer evidence tending to prove the sale fraudulent; and a verdict was returned for him, with a dollar damages.

If the defendant ought not to have been permitted to give the evidence which was thus objected to, and admitted, the verdict was to be set aside and a new trial granted ; otherwise, judgment was to be rendered on the verdict.

*Hosmer,*for the plaintiff,

cited 7 *Mass. Rep.*123, *Bond*vs. *Ward*- 12 *Mass. Rep.*411, *Mattoon*vs. *Pearce & Al.*— 1 *Campb. Rep.*512.

* *Hoar*for the defendant.

Parker, C. J.,

delivered the opinion ol the Court. *283The issue on trial was, whether the property in the horse was in the plaintiff, at the time of the taking. The defendant, having the special property by force of the attachment, had a right to disprove the property of the plaintiff by any lawful evidence.

At the time the attachment was made, the creditor who ordered it had a debt due which entitled him to contest the validity of the sale to the plaintiff; and he had no means of compelling his debtor to file his account in offset, instead of resorting to his cr. ss action. The issue of that suit, in consequence of the account filed, cannot affect the right of the defendant to take the horse ; and the merits of the case are to be tried as they were when the act, which is complained of, was done.

It is said that, the transfer being valid between the parties, although made to defraud creditors, the plaintiff ought now to be in possession of the horse ; at least until an actual creditor shall vacate the sale.

But the sale was not valid against *Jewell,*who ordered the attachment ; for he was then a creditor; and it is only by subsequent proceedings, not within his control, that he has ceased to be so. If by those proceedings the plaintiff’s title has revived, he may main tain his property, by making demand upon the defendant for the horse ; and if the latter fail to deliver it, he will be answerable in damages; for he cannot defend the possession, after the termination of the suit upon which the attachment was made, having no execution to levy upon the property.

We think the evidence was rightly admitted, and that judgment ought to be rendered upon the verdict. Such judgment will only prove that the property was not in the plaintiff at the time of the taking, (a)*Judgment on the verdict.*

(a)

**Vide *Damon*vs. Bryant, *2 Pick.*411.— *Wheeler*vs. *Train,*4 Pick. 168