The first point is, whether there was any question of fact which should have been submitted to the jury.
The only question as to which this could be claimed, was whether the goods, about $150 in value, which were not bought of Phillips, were part of those for which the sum of $2,100 was allowed in the bankruptcy proceedings.
The register testified that the deduction, $2,100, was “for all the goods taken on execution.” There is no dispute that these goods were so taken. Again, he says, “I took into consideration all the goods which appeared to have been taken by the sheriff.” He testifies, it is true, that he made up the value from all the evidence. But the point now is not as to the value, but as to the including of these goods, not bought from Phillips, in the credit allowed plaintiffs by the register in bankruptcy.
Norton says, “ it was not claimed that any of the goods were bought of any person other than Phillips.”
Wendell says, “they were spoken of as the goods'taken from the store by Galvin.” Galvin said, that “the $2,100 embraced all the goods taken by him and sold at sheriff’s sale.”
*469I see no conflict of evidence. The goods were spoken of as Phillips’ goods, and were so treated on the bankruptcy proceedings. That fact is the very ground of the defendant’s defense in this action. But, in fact, the goods so treated did include the $150 worth of goods now in controversy.
Second. On the question of law.
A judgment creditor of Phillips takes on execution property of the plaintiffs as being Phillips’ property, and sells it. The assignee in bankruptcy of Phillips sues plaintiffs for property of Phillips fraudulently purchased by them. He recovers against them, but they claim to deduct, and are allowed to deduct, from such claim against them whatever the sheriff, by virtue of execution against Phillips, has taken away from them.
Then the case stands thus: As against Philips’ creditors, and, therefore, as against Phillips (represented by the assignee in bankruptcy), the plaintiffs have claimed and established that these goods in question were bought by them of Phillips, and taken from them by a judgment creditor of Phillips ; and that they were, therefore, lost to them by the levy under the execution. How, they cannot be allowed to turn around and say that these goods were not bought by them of Phillips.
The plaintiffs were parties to the litigation before the referee in bankruptcy. It was a proceeding against them. They knew, and they could there have stated, that the sheriff’s levy included goods, to the amount of $150, which never had belonged to Phillips, and for which they had ample remedy against the sheriff. And they could have had this $150 deducted from the credit, $2,100, which they were allowed. But they did not do this. How they must stand by the position which they then took.
Suppose, to illustrate, that in fact, the sheriff, with an execution against Phillips, had levied on no goods which had been bought by the plaintiffs of Phillips, but exclusively on goods bought by them of others than Phillips ; then the plaintiffs are sued by the assignee in bankruptcy for the goods which they had fraudulently bought of Phillips, and in that suit they set up and prove that the sheriff, with an execution against Phillips, had taken away part of these Phillips goods, concealing the fact that he had really by mistake levied on' other goods. They succeed in this defense and are credited that amount upon the claim of the assignee. Would they not then be equitably estopped from claiming that the goods which the *470sheriff had levied upon were not goods bought of Phillips ? They would have made Phillips, or his creditors, pay for them in the bankruptcy suit. That is, Phillips, or his creditors, would have recovered against them in the bankruptcy suit just as much less as these goods were worth. Now, can they make another creditor pay for them again ?
Their offset in the bankruptcy proceeding was sustained on the ground that a creditor of Phillips had lawfully taken away the goods. Shall they now say that the taking was unlawful ?
That would be unjust. The judgment and order must be affirmed.