The opinion of the court was delivered by
Redfield, Ch. J.
This case is somewhat peculiarly situated in regard to some, of the questions involved in it. The suit is brought against the officer and attorney who made the attachment, and who made it in behalf of different creditors, who, in consequence of subsequent litigation, may be entitled to defend upon different grounds.
I. The first question made is in regard to the admissibility of the declarations of Kimball, for the purpose of proving a fraudulent design between him and the plaintiff in the purchase of the property at auction. This purpose or design must have been *453participated in by both Kimball and the plaintiff, in order to render the property liable to attachment by the creditors of Kimball. And like a partnership or any other joint purpose or enterprise it may, no doubt, be shown by separate declarations of the parties in question. But the admission of such testimony, unless it were properly presented to the jury in the charge of the court, might, no doubt, have a tendency to mislead them. But as we have not the charge upon that point, and no exception was taken to it, we may fairly presume, perhaps, that the jury were told that this testimony alone was not sufficient to make the case against the plaintiff, and that his participation must be shown by separate and independent proof.
II. The question in regard to the estoppel seems to he a very simple one ; but some difficulty arises, perhaps, in its application. But so far as Pierce, Clark & Reed were concerned, the proceeding in chancery, and probably the being made a party upon their own motion and defending the proceeding at law, as subsequent attaching creditors, upon the very notes now in question, would conclude them as to the validity and consideration of the notes. For in the chancery proceeding the principal allegation in the bill upon which the interference of a court of equity is invoked is, that these notes were fictitious, and without consideration. The defendant there, the present plaintiff, is called upon to state, and does state in detail the consideration of the notes, and upon full hearing the hill is dismissed, in general terms, upon its merits. This must certainly he a full estoppel upon them in all subsequent proceedings, as has been often held in this state, and the jury have no right to inquire into it so far as this plaintiff and Pierce, Clark & Reed are concerned, and there is no want of mutuality. But in regard to Reed, Cutler & Co. the estoppel will not operate. But it would seem that only the avails of the horse went to them. It is only, then, to that extent that the defendants could shield themselves under their rights as creditors, as their final disposition of the property shows that they only took that portion of the property for their benefit. This brings us more properly upon the next point in the case.
III. The first part of this point is, that the defendants were bound to show their attachments followed up by judgments, execu*454tions and sale of the property. But perhaps this is not requisite in order to justify the taking. One might not become a trespasser by a mere omission to sell. The attorney and officer could not control that. But the other portion of this point is that the plaintiff offered to show that the defendants, after the attachment, proceeded to divide the- property among themselves, and made no sale of large portions of it, with a view to deprive them of the shield of the attachment. And according to all the late and best considered English cases, the testimony, if believed by the jury, would have made the defendants trespassers ab initio, as showing that they made use of the process as a mere sham or pretense to cover some other purpose; Stoughton v. Mott, 25 Vt. 668" court="Vt." date_filed="1853-06-15" href="https://app.midpage.ai/document/stoughton-v-mott-6575131?utm_source=webapp" opinion_id="6575131">25 Vt. 668. For that portion of the property which the defendants put to their own use (if any) they certainly should not be allowed to stand as creditors. As mere strangers, it is immaterial to them what motive induced Kimball to transfer the property to the plaintiff. He can hold the property against all the world, except those whose rights are infringed by the transfer. And these defendants cannot shield themselves under a mere license from the creditors to take the property. The creditors have no right to the property, except in a particular mode, i. e., under process, and in payment of their debts. For no other purpose can they, or any one in their behalf, take the property. And the defendants, being shown to have used the process as a mere cover to get the property into their possession in order to put it to their own use, are in no better condition than if they had taken the property without process. The law will not allow any one to indulge his own will for his own advantage, under a pretense so shallow. We assume the plaintiff could prove what he offered to do. This we are obliged to do, in order to test the soundness of the decision rejecting the testimony. For these reasons we think the case must be sent to a new trial.
Judgment reversed, and case remanded.