The opinion of the court was delivered by
Red field, Ch. J.
It seems that the plaintiff was secured by a deposit of money, to the full value of the first bill, and actually paid all of the second bill except $4,12, so that in fact he cannot have any ultimate equity, beyond the sum of $4,12. All that is recovered beyond that sum, must go tothe credit, and for the benefit of Lampson. Beyond that, this suit is Lampson’s suit. And if the property was so situated, that it was exempt from attachment, on his debts, the defendant is a mere wrong doer, and the suit might well have been in Lampson’s own name, the same as he might recover for other property, exempt from the levy of an execution.
We have not as yet, perhaps, decided any case, going this length. The cases of conditional sales, where the property has been held exempt from attachment, have always shown a beneficial interest in the vendor, at the time of the recovery to the extent of the judgment. But here that contingency is not very obvious.
The plaintiff had received money enough to pay him for the goods ; he had the goods for sale, and had delivered them to Lamp-son for that purpose, on the condition of sale or return. This money was undoubtedly put to use by plaintiff. The contrary, certainly does not appear. It would be his duty to put it to use, or upon interest. On the most favorable construction, then, it created a trust in Chaffee, for the benefit of Lampson. So too, the goods mnst be regarded, as creating a trust, on the part of Lampson, for the benefit of Chaffee. But these are to be kej)t distinct, and subsisting, for some purpose ! It does not seem to me it can be for the security of plaintiff, beyond the $4,12. For he is already secure beyond all peradventure. What then is the purpose of these twin trusts ? Certainly not exclusively to keep the property out of the reach of all legal process! This is scarcely a legal purpose. But it does seem, on the principle of the decision below, to have that effect. This money cannot be reached by trustee process, because the plaintiff has a beneficial interest in it, for his own security.
And if the creditor had attempted that mode of process, there is no great probability, perhaps, that Lampson would ever have volunteered to pay for the goods, in any other mode, so as to leave the money to be held by the trustee process. And when the goods are attached, in the ordinary mode, the full value is to be recovered by Chaffee, so that neither the money or the goods, can *241be reached on Lampson’s debts. And it is equally clear, they cannot he reached on Chaffee’s debts. This, then, has the effect to put the property out of the reach of creditors, and most effectually. And has it any other 'apparent effect or purpose ? Is it not necessary then to refer it to that purpose ? Does not the testimony all bear one way ? If so, is it not a mere question of law ? That is so treated in reference to other subjects. If all the testimony tends to show one state of facts, and none in any conflicting direction, the court may direct a verdict. And if this is the legitimate result of allowing the vendor, in a conditional sale, to hold a lien for the price, as held in West v. Bolton, 4 Vt., and other cases following that, I should, for one, incline not to follow them, in this cáse certainly. I would say as did the philosophers before Torricelli, “ nature abhors a vacuum, but not above 32 feet; her abhorrence then ceases she stops thera; so would I stop here! But I do not think the case bears any. analogy to the principles laid down and followed in those cases. There the vendor is allowed to recover, for his own benefit and security, but here virtually for the benefit of the vendee. For who else takes the benefit of this judgment? It is, in my judgment quite idle to attempt to delude ourselves, by the ingenious device these parties have got up for us, and to say, that the plaintiff takes the money recovered here, and Lampson, that which he had deposited as security. It is the recovery of this money, which releases that. The parties were mutually relieved from all obligation to each other, and their accounts balanced, by equal and mutual trusts, until this judgment is realized, and then, Chaffee becomes the debtor to Lampson ,for the prior amount of the judgment except the $4,12. . Is it not then true that Lampson derives benefit, and the sole benefit of this judgment beyond the $4,12? And will the law allow so shallow a subterfuge to distract its vision ? This to my apprehension is just such a fancy and subterfuge as may always be expected from fraudulent debtors, and such as it is the business of courts to penetrate and demolish. I should blush for any code of laws that would suffer itself to be hoodwinked, and deluded by such shallow devices ; or that would not at once free itself from any entanglements, which the apparent pursuit of its own doctrines, might seem to throw around it, when it became apparent, that the results were so much at variance with acknowledged principles of justice and *242equity. I should myself think the plaintiff could not recover beyond his own equitable interest in the goods, deducting the $50 and the $39, the latter sum being on the bill credited as so much paid, and it is so denominated, in the bill of exceptions, as so much paid, at the time the goods were taken, and we must regard this sum as paid towards the second bill of goods, and therefore, whatever portion of these goods were attached should undoubtedly be regarded as paid for. And the majority of the court concur in this latter view. ' But a majority of the court think the plaintiff may maintain the action for the balance. The plaintiff may, therefore have his judgment affirmed, deducting the $39 and interest, and reversed for the remainder, or have the judgment reversed, and remanded for new trial.