While the plaintiff in error was prosecuting his application for the appointment of a trustee of the estate of the defendant, under the second section of the act of 1853, for the relief of insolvent debtors, and the more equal distribution of their effects among their creditors, Rev. Stat., 513, the defendant made a voluntary assignment of his estate, under the provisions of the same act; and the court of probate, there*180upofi, on the defendant’s motion, dismissed the application. We think the probate court erred in thus dismissing the application, and the decision was properly reversed by the superior court. The proceedings on the part of the plaintiff were regular in point of form ; they are expressly authorized by the statute, and, being prior in time to the voluntary assignment,.ought not to be defeated by it, after expense has been incurred in the commencement and prosecution of the application. Besides, if anything more is required on a point of this sort, the finding of the superior court is, that the defendant’s assignment was fraudulently made, with the intent to defeat the plaintiff’s application, and thereby to aid one Charles Parker, who had attached his property, in obtaining a preference over the other creditors. This, being in fraud of the statute, ought not to have been sustained by the court of probate. We, therefore, do not find any error in the judgment of the superior court.
In this opinion, the other judges, Waite and Storrs, concurred.
Judgment affirmed.