By the Court,
Nelson, Ch. J.Nothing is clearer than that the executions attached before the assignment of the goods to the plaintiff took effect. The goods were bound from the delivery of the writs to the sheriff, 2 R. S. 289, § 13, which was at seven minutes past ten o'clock A. M. down to one o'clock P. M., the plaintiff had expressly refused to accept the trust. The mere taking into his hands the instrument and retaining it, amounted to nothing. There must be an acceptance of the trust—a delivery without acceptance, is nugatory. 12 Johns. R. 418. There can be [ *285 ] *no presumption of acceptance from the time of the delivery here, as the declarations of the assignee negative the fact.
Indeed, here was an actual levy and custody of the goods before the execution and delivery of the assignment.
There is nothing in the transaction, that should induce us to make favorable intendments in support of the title of the assignee. The whole of it is the obvious contrivance of a failing firm to place their property beyond the reach of impending executions ; and that, too, without any previous communication with, or for aught that appears, knowledge of, their general creditors. It is an enterprise, exclusively of their own.
Judgment affirmed.