On the re-trial of this cause, since it was before us at the last term, (20 Conn. R. 98.) the same facts were admitted, which were admitted on the former trial; and Gavit and others, the real defendants, further proved, that they had expended, in prosecuting the suit in favour of Clark against Williams to judgment, as stated in the bill and decree which were in evidence, more than the amount of the damages and costs recovered against the defendant in that suit; and that said sum so expended, had never been reimbursed, in whole or part, to them ; and that Clark is, and ever since the commencement of said suit against the defendant, has been, insolvent. Gavit and others thereupon claimed, that *531such expenditure created an equitable lien in their favour on the said judgment, which constituted a defence to this suit. The court below so decided; and as we think, correctly.
This point, as a majority of the court thought, was not involved ; and therefore, could not be considered, when this case was before presented to us, because the additional facts did not then appear, which were shown on the last trial, and on which this question is now raised. We then decided, that under the act of 1828, in addition to the act against fraudulent conveyances, the assignment of Clark was to be deemed fraudulent and void so far as it respected his claim upon Williams, as against the creditors of Clark, of whom the plaintiff was one ; and that therefore, Gavit and others, as they had no title to said claim, excepting by a purchase thereof from the trustees under that assignment, could not retain that claim, as against the plaintiff, who had attached it against the assignor. On the last trial, however, Gavit and others interposed another defence, as they had a right to do, founded on the facts newly appearing, which have been mentioned, and insisted, that on those facts they had an equitable claim on the judgment recovered against Williams, to which it was subject, when it was attached by the plaintiff. As the title of Gavit and others, under said trustees, is now out of the question, that having been decided to be invalid, the enquiry is, whether they have a good title to it as against Clark. If they have, the plaintiff cannot recover, because he attached it subject to any legal or equitable claim or defence against Clark, to which it was subject when so attached. The judgment was recovered, in a suit, brought in the name and with the assent and approbation of Clark, by Gavit and others, who advanced all the moneys necessary to render it effectual. According to our previous decision, that recovery was for the benefit of Clark, and not of his trustees. He has become a bankrupt, never having refunded those moneys. If there were no other circumstances in the case, Gavit and others would clearly have an equitable claim on the judgment, to the extent of such advances, which here exceeded the amount of the recovery; and neither Clark, nor the plaintiff, claiming, as he does, under a subsequent title from him, should be permitted to interfere with the judgment to their injury. It would manifestly be the greatest injustice to. *532allow either Clark or the plaintiff to put the avails of it into his own pocket. We perceive no circumstances in this case, which should impair this lien of Gavit and others. It is true, both they and Clark, when they so operated in the prosecution of the suit against Williams, were mistaken as to the effect of the assignment, and erroneously believed, that a title to the claim had been acquired under it, by Gavit and others, by virtue of a purchase of it from the, trustees. They supposed, that although it was not conveyed, by the assignment, in terms, a court of equity would rectify that instrument, so as to make it express the intention of the parties, which was to insert it.
We decided, however, that it could not be thus corrected ; the effect of which was, that the claim did not pass under it, but remained in Clark, and was liable to the process of foreign attachment, by his creditors; and it is by virtue of such process, that the plaintiff claims to appropriate it, in this suit, to his own benefit, as the property of Clark. The judgment against Williams having enured to the benefit of Clark, and been recovered by his assent and cooperation, and procured, through the instrumentality of the funds of Gavit and others, why should their mutual mistake as to the effect of the assignment, throw the expense of the recovery upon the latter? Why should not such expense fall on Clark, as though there was no such mistake, and the suit had been prosecuted with his consent, for his avowed benefit ? Is there any doubt, that in an action of assumpsit, by Gavit and others, against dark, under these circumstances, to recover such expenses, the law would imply a promise, by the latter, to pay them ? We think there is not; and this seems to be decisive on this point.
It is urged, however, by the plaintiff, that the assignment, under which the claim was purchased and prosecuted, has been pronounced fraudulent as to the creditors of Clark ; and that therefore, a court will not assist the parties, as against those creditors, in any transaction connected with it. If there were any actual fraud in the object of this assignment, there would be force in this claim ; but none is imputed to any of the parties to it, or to Gavit and others. It was decided to be only constructively fraudulent, because it did not comply with the requirements of the statute under which it was made *533No moral wrong was involved in the transaction ; and we are not aware of any case or principle, which requires us treat such a transaction as fraudulent, excepting when a claim is set up under it against those as to whom it is thus construe-tively fraudulent. But in this case, Gavit and others set up a claim to the judgment against Williams, not under the assignment, but only under an arrangement with Clark, which derives no force or validity from it, and was subsequent to and unconnected with it. We give to the plaintiff the full benefit of the invalidity of the assignment. So far, therefore, from sanctioning or enforcing it, or any rights claimed under it, we treat it as being fraudulent and void, as against the plaintiff, and view the case as though it had never been executed. And we cannot doubt, if it never had been executed, and the arrangement found in this case had been made between Clark and Gavit and others, the latter would have an equitable lien on the claim which the plaintiff here seeks to recover.
A new trial is not advised.
In this opinion the other Judges concurred.New trial not to be granted.