It is not denied that a debtor in failing circumstances may prefer one of his creditors, or *one set of creditors, to another; nor is it pretended that any fraud in fact was proved in the court below. Indeed, this was negatived by the proof and the verdict of the jury.
But it is contended that the provision for re-assignment dr re-payment of the surplus of the proceeds, after payment of all the debts, renders the assignment Void. This is a mistake. In the case of Mackie & Cairnes, (5 Cowen, 547,) the assignment was held fraudulent and void, because it *738contained a provision in favor of the insolvent debtor, to the exclusion and prejudice of creditors. Hot so here. The debtor is to derive no benefit from the property assigned till his debts are all paid. This provision is precisely what he would have been entitled to, if nothing had been said about it in the assignment. Had the property been conveyed in trust generally, for the payment of the debts of the assignor, when the object of the trust was accomplished, what remained would belong to the assignor by operation of law. The judge was, therefore, correct in refusing the non-suit on this ground.
Was there any evidence of a trespass ? If a sheriff take the goods of a stranger, he is liable in this action. It is contended, however, that admitting the goods to belong to the plaintiff, the defendant did no tortious act. Every unlawful interference by one person with the property or person of another, is a trespass. The defendant in the court below undertook to control the propeity levied on. He took it into his possession, though there was no manual seizing of it. He was about to take it away, and would have done so, but for the security given him that it should be forthcoming upon the execution. He exercised dominion over it.. This was enough to constitute him a trespasser, he having no authority. Trover lies against a defendant, who undertakes to control property in defiance, or exclusion of the owner. (5 Cowen, 325, 6, and the cases there cited.) The same doctrine is applicable in trespass, as in trover, where *the conversion is the tortious intermeddling with the goods of another.
The judgment must be affirmed.
Judgment affirmed.