At the trial of these actions, it was ordered by the presiding judge, that they should all be tried at the same time, and by the same jury, and to this order the plaintiff’s counsel excepted. Generally it is within the discretionary power of the presiding judge, in the trial of cases by the jury, to determine when and how the same shall be hied; and to the exercise of such a discretionary power no exception can be sustained. It was so decided in the case of Witherlee v. Ocean Ins. Co. 24 Pick. 67, in conformity with a well-known and reasonable rule of practice.
It is contended for the plaintiffs, that this rule is limited to cases depending on the same principles and evidence, and that in this case the evidence would not have been the same if separate trials had been allowed; as the surety in the replevin bond in the first-named suit would have been a competent witness in the two other suits, and so the sureties in those suits would have been competent witnesses in the first suit. There seems to be weight in this objection, but it was overruled on the ground that by the Rev. Sts. c. 94, § 55, the plaintiff had a right to substitute new sureties, and thereby to qualify the other sureties as competent witnesses. But we are of opinion that the plaintiff could not reasonably be required to procure new sureties, which it might not be in his power to do; and as none were procured, the sureties were competent witnesses, and should have been admitted to testify in the cases in which they were not interested, in the same manner as they might have done if the trials had been *446separate. The jury might have been directed to confine the testimony of the witnesses to the cases in which they were not interested; but in those cases then- testimony should not have been excluded, although it might possibly and wrongfully have some effect on the decision of the other cases in which they were not competent. The rules of evidence were the same, whether the actions had been tried together by the same jury, or separately by different juries; each action was to be tried on its merits, and consequently all competent evidence was admissible. On this ground, therefore, the plaintiff is entitled to new trials; but the other exceptions, we think, cannot be sustained.
It has been objected that the plaintiff’s contract with one Mason had a tendency to prove, that the sales of property from Ashcroft and Odiorne, alleged to be fraudulent, were made in good faith; or, if not, that the fraud was thereby purged. But we find nothing in that contract which can legally have any such tendency. That contract was made after the commencement of these actions, or one of them, and it contains certain stipulations which were to take effect, if, on the trial of the case or cases, it should be adjudged that the plaintiff’s title to the property replevied was not valid, which certainly cannot be material in the decision of the question of title.
Exceptions were taken to the instructions to the jury; in the first place, because they were instructed, that the conveyance of property made by a debtor in embarrassed circumstances, for the purpose of securing the same from attachment, the purpose being known to the purchaser, would be void as against creditors, although the debtor might, at the time of the conveyance, have believed that it would be better for his creditors to make the conveyance, and intended in the end that his creditors should be paid. That this part of the instructions was perfectly correct we cannot doubt. Such a conveyance, although it does not indicate any moral turpitude, is made void by the 13 Eliz. c. 5, which declares, that all conveyances made for the purpose and intent to delay, hinder, or defraud any creditor or creditors, shall be utterly void aa *447against such creditor or creditors. The language of the statute is clear, and fully supports this part of the instructions; and so are the authorities.
Such a conveyance also is void as against our law authorizing attachments. Every attempt, by a debtor, to violate or evade the law, so as to delay his creditors in the collection of their debts, to the hinderance of the due course and execu tion of the law, is unquestionably fraudulent and void as against such creditors. But, undoubtedly, an insolvent debtor may make a valid sale of his property, if made bona fide, and for a full and valuable consideration. So he may prefer one creditor to another, if not restrained by our insolvent laws ; although other creditors may be thereby incidentally delayed or hindered in the collection of their debts. And there is nothing in the instructions to the jury inconsistent with this distinction. According to the instructions, the defendant was bound to satisfy the jury, that the sales to the plaintiff, or one of them, were made for the purpose and with the intent to secure the property from attachment, so that it could not be reached by the ordinary process of law; and that the plaintiff, at the time of the sales, knew of such purpose and intent, and participated therein. Cadogan v. Kennett, Cowp. 432; Estwick v. Caillaud, 5 T. R. 420; Meux v. Howell, 4 East, 1; Harris v. Sumner, 2 Pick. 129 ; Widgery v. Haskell, 5 Mass. 144; Hendricks v. Robinson, 2 Johns. Ch. 283; Trotter v. Watson, 6 Humph. 509 ; Bridge v. Eggleston, 14 Mass. 245.
But it is further objected, that the instruction was erroneous in authorizing the jury to find for the defendant, if they were satisfied from the evidence, that either one of said sales was void as aforesaid. The answer to this objection is, that the property replevied was held in common by the vendors Ashcroft and Odióme, and if either deed was void, the plaintiff would have a title to only an undivided share of the property, for which replevin could not be sustained. Hart v. Fitzgerald, 2 Mass. 509. If either Ashcroft or Odióme was the owner of an undivided share of the property attached, the taking by the officer was lawful. If hereafter *448he should sell the whole property or convert it, and the plaintiff could prove he was entitled to a share thereof in common, he would have a remedy in another form of action, to which the judgment in this case would be no bar.
Another question, although not raised by the exceptions, has been argued by counsel, as it may be raised, should a verdict on the new trial be again for the defendant.
It is objected by the plaintiff’s counsel, that the defendant would not in that case be entitled to a return of the property replevied, because Ashcroft and Odiorne, since the commencement of these actions, have petitioned for the benefit of the insolvent laws, and all their property has been duly assigned under the petition by the master in chancery, whereby the attachments made by the defendant have been dissolved. But we are of opinion that, notwithstanding the dissolution of the attachments, the defendant is entitled to a return; whereupon he will be bound to deliver over the property to the assignee for the benefit of the general creditors; and if he should fail so to do, the assignee will have his remedy against a responsible person. This property, having been unía vvfully taken from the possession of the officer, ought to be restored to him for the benefit and security of whoever may have a right to it, and is not to be left in the possession of the plaintiff, who has no title, and has been adjudged an insolvent debtor. Exceptions sustained, and nexo iríais granted.