The receipt given by the plaintiff to Haley, was legally admitted in evidence. At the time of levying on the property, with Stoddard'’s attachment, he was the only receipt-man, and his right of action then arising cannot be defeated by matter ex post facto. Besides, the taking off the name of Hinckley from the receipt, by consent of all the *164parties to it, did not invalidate the instrument. It remained in force against the plaintiff, as if no such fact had existed.
The plaintiff, to whom the property taken was delivered,, had a right to maintain an action of trespass for the violation of his possession ; more especially, as he was bailee, and answerable for it to the person from whom he received it. The. actual custody, by the son of Hempstead, was merely as having the charge or oversight of it; (1 Hawk. P. C. 90. sect. 6. Williams r. Lewis, 3 Day 498.) the constructive possession being in the plaintiff, and the injury consisting in a violation of his right.
It appears, that on the 25th of December, 1817, the plaintiff attached the property in question, on a suit against William Hempstead; and that Haley, the officer, drove the stock attached from the farm occupied by Hempstead and one Hinckley, into the street, and delivered it to the plaintiff, who gave his receipt for it, and committed the care and oversight of it to John Hempstead, the minor son of William ; that John returned it to the farm, where it remained in the same visible condition as it was in before the attachment. On the 27th of the same December, the defendant claimed, that he was a creditor of William Hempstead, and attached the property, while on the farm, in the use and occupation of said Hempstead and Hinckley, and took it from their possession; for which taking the plaintiff’s suit is brought. To these facts the attention of the jury should have been directed, with the instruction, that they were a badge of fraud, and even conclusive evidence of it, unless explained, by the most satisfactory reasons. Slurtevant & al. v. Ballard, 9 Johns. Rep. 337. 340. Ryall v. Rowles, 1 Ves. 348. 360. No one legitimate object of an attachment of property can be fulfilled, by permitting it to remain in the occupation of the debtor ; and this extraordinary exception to the usual course of conduct, in such cases, is strong presumptive evidence, that the purpose was not to secure a debt, but to protect the property of the debtor from his creditors. Rice v. Serjeant, 7 Mod. 37. Barnes & al. v. Billington & al. 4 Day 81. 85, 6. n. Chancellor v. Phillips & al. 4 Dall. 213. The United States v. Conyngham & al. A Dall, 358. It is no sufficient answer, that the possession was delivered to John Hempstead, the minor son of William; who permitted his father to take the property into his occupation. It might reasonably be anticipated, that this fact would exist; *165and that the manner, of returning the property to William Hempstead was to mask the real nature of the transaction. The possession of the receipt-man should not merely have been colourable, but actual, and bona jide. It is mere mockery, said Lord Ellenborough, in Wordall v. Smith & al. 1 Campb. 333, 4. to put in another person to take possession jointly with the owner. There must be a possession, not concurrent, but exclusive. See also Paget & al. v. Perchard, 1 Esp. Rep. 205.
Instead of putting the essential point above mentioned to the jury, the court informed them, that if they found the property had been removed from the possession of the debtor, they must find for the plaintiff. This enquiry could be of no imaginable importance, except in relation to the question whether the possession had ever been lawfully transmitted to the receipt-man. It cannot seriously be pretended, that the removal of property a rod, and then returning it to the debtor, would repel the presumption of fraud arising from the possession. The material question between the parties, was, by the charge, withdrawn from the consideration of the jury; and for this reason, there must be a new trial of the cause.
Peters, Chapman and Brainard, Js. were of the sam$ opinion.