Mellen C. J.
The counsel for the defendant, to entitle his client to contest the operation of the deed from Jacobs to the plaintiff, by proving it a fraudulent conveyance, or in other words, to shew that Dyer was a creditor of Jacobs at the time the deed was made, read a copy of a judgment recovered by himself against Jacobs some time after the date of the deed, for a trespass
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committed by him on Dyer’s land some time before the deed; and having done this, he offered to prove that the deed was given without any consideration paid by Meserve and was fraudulent and void against Dyer. This evidence the Judge rejected, on the ground that Dyer did not become a creditor of Jacobs until the recovery of the judgment. On this abstract question we think the decision of the Judge was correct. Until judgment, all was contingent and uncertain; had Jacobs died before judgment, the right of action would have died also; and before judgment he could not have been adjudged a trustee of Dyer. The same remark applies to actions of slander, assault and battery, &c. Dyer therefore, not having been a creditor of Jacobs at the time of the conveyance, he could not, according to the practice as understood to have prevailed in our courts, be received to impeach it. In this respect, the decision, against which the exceptions were alleged, was conformable to such practice. We have listened with pleasure to the able arguments of the counsel ; and have since also heard another cause argued in the county of Cumberland, involving the same general question, as well as some others, connected with it; the facts in which last mentioned case were of such a nature as to present the questions and principles which the counsel have discussed, in a more ample and interesting manner. We have accordingly preferred to deliver our opinion at large in that case rather than in this; and we refer to that for all the reasoning and authorities on which our opinion in both causes is founded. The case to which we have alluded is that of Howe v. Ward. As fhe defendant in this case offered to prove that the deed from Jacobs to Meserve was made without any consideration, and was fraudulent and void, we must understand that he offered to prove all those facts which would render the conveyance void as against him, although he was not a creditor of Jacobs at the time, according to the provisions of the statute of 13 Eliz. ch. 5.
In this view of the subject the court sustain the exceptions, and the verdict is accordingly set aside and a
Mem trial granted.