The opinion of the Court was by

— Johnson cannot be charged as trustee. He does not disclose any goods, effects or credits as being in his hands, belonging to the defendants. He states that as an officer, with a legal precept in his hands for the purpose, he attached as the property of Messrs. Reed & Hatch, or either of them, and of Messrs. Kendrick and Reed, or either of them, at the suit of certain of their creditors, certain goods and chattels. He does not, and with propriety, could not disclose that they were the property of any one else. He, however, states that he found them ostensibly in the possession of the defendants in this' suit, who claimed them as their own ; but that the circumstances, under which they were purchased by them, as he understood from the attorney of the creditors, at whose suits they were attached, were strongly indicative of a fraudulent intent to delay or prevent them from recovering their demands against those, as whose property, the goods were attached. From the whole disclosure it is manifest that *30Johnson held the goods or their proceeds as an attaching officer, and that it is contended by those, who caused them to be attached, that the defendants, in this action were colorable purchasers, merely, of the goods attached, for the purpose of preventing the attachment. The counsel for the plaintiff in this action contends, that it is competent for the Court, upon this disclosure, to determine, that the goods and chattels in question were the property of the defendants; and to adjudge the trustee to be chargeable. But we cannot come to any such conclusion. A question of fraud is involved in the issue, which should be referred to a jury. It cannot be proper, that the Court should take cognizance of it, in the manner in which it is presented to us, in this process. Mr, Justice Story, in Picquet v. Swan, 4 Mason, 460, says “ there must be a clear admission of goods, effects or credits, not disputed or controverted, by. the supposed trustees, before they can be truly said to have them in deposite or trust.” The trustee in this case makes no such admission, and states no facts that would authorize us to question his right to retain the possession of the goods or of their proceeds ; but the reverse of it; and must therefore be discharged.