The opinion of the Court was delivered, at a subsequent term, by
Weston C. J.— 'At the time of the service of process upon the supposed trustee, the principal debtor had paid two thirds of the stipulated price of the proportion of the vessel, he had agreed to purchase. The general title remained with the trustee, but he was ready and desirous to execute a bill of sale, upon payment of the residue of the price. Viewing the transaction, as both parties understood it, we are of opinion that the trustee must bo considered as virtually and substantially holding the vessel, by way of mortgage or pledge, for what remained due of the purchase money. This certainly best accords with the equity of the case, and the policy of the statute, upon which the plaintiff relies. Stat. of 1835, ch. 188. This construction is aided by the case of Pearce et al. v. Norton, 1 Fairf. 252. There the plaintiffs, original owners of a vessel, had agreed to sell her to the defendant, and had delivered her to him, he agreeing to furnish security for the price, or to return her, within a stipulated time. The title remained with the plaintiffs, which they were considered as holding by way of mortgage, as security for the price.
In the case before us, the trustee is ready and willing to give the principal debtor, or the plaintiffs, his creditors, if the court shall so adjudge, the benefit of the property in his hands, upon being paid what is due to him. Under all the circumstances, in our judgment, the order of the court below ought to be affirmed.
Exceptions overruled.