The following opinion was filed February 2,1886:
Tayloe, J.The motion for a rehearing raises no new questions. The point was distinctly made by the appellant on the hearing of the appeal that the plaintiffs should have recovered notwithstanding the court properly held the assignment void as to the creditors of their assignors; and this court answered that objection by showing that the evidence offered to sustain the assignment was, in the first place, not offered with a view of establishing their right to recover against a person not representing a creditor *129of tbeir assignors, and that the attention of the circuit judge was not called to that view of the case. The answer showed that the defendant was representing a creditor; and we think the court had the right to consider the evidence offered and rejected as offered to defeat the defendant’s defense as a representative of a creditor, unless it was declared' at the time to have been offered merely for the purpose of showing that the title of the assignors had been transferred to them, as between the assignors and assignees. In addition to this, the record shows that the plaintiffs on the trial introduced the records of the proceedings in the attachment action as a part of their case, which attachment proceedings are set up in the defendant’s answer as a defense, and which show that the defendant was acting on behalf of a creditor of the assignors in taking possession of the property in controversy. Under these circumstances we thought, and still think, that the question raised on the appeal and on this motion for a rehearing was not presented to the court below, and was not in fact in the case. See Langley v. Wadsworth, 99 N. Y. 61, 63.
See note to this ease in 25 N. W. Rep. 662. — Rep.By the Court.— The motion for a rehearing is denied, with $25 costs.