delivered the opinion of the Court.
These causes were consolidated and heard together in the Court below, and the same questions of law and fact being involved, and the testimony being the same in both, they have, in like manner, been heard together in this Court.
•The appellees exhibited their bills in Chancery against J. C. & J. T, Guthrie, alledging that they were indebted to them in large sums, for merchandize which had been sold them, and charging that the purchases of the goods had been made by them with the fraudulent design of taking them to other places than where they had formerly been engaged ip business, and of selling them at reduced prices for cash, and then to withhold payment and defraud their creditors. Upon these !and other allegations of fraud, they prayed for and obtained an attachment, which was levied upon a quantity of merchandize, alledged to belong to said Guthries, or one of them, and which, at the time, was stored with Anderson & Co. at Louisville. These bills were filed and attachments levied on the 18th November, 1836. Shortly afterwards, the goods were, *100claimed by the appellant, Morrow, as the surviving partner of Puryer & Morrow, and subsequently the appellant, the administratrix of Puryer, united with Morrow in asserting and sustaining the claim set up by him.
Decree of the Circuit Court. The testimony of appellees.The Court below decreed a sale of the merchandize, and finally a pro raía distribution of the proceeds between the^ appellees — from which decree Morrow and the administratrix of Puryer have appealed to this Court.
The first and main question for consideration is, who was the owner of the merchandize in controversy, at the time it was attached. In the solution of this question, it must be admitted there is some difficulty. The merchandize was delivered to Anderson & Co. by the «team boat Princeton, on the 12th November, 1836, with a bill of lading dated at Helena, Arkansas, on the 4th November, 1836, reciting that a lot of goods had been received from Jos. Guthrie, in good order, &c. and which was to be delivered in like good order, to Thomas Anderson & Co. at Louisville, &c. and signed by the Clerk of the boat. The delivery of the goods was also accompanied by the following note:
Messrs. T. Anderson Co. — Gentlemen, please store the above boxes for a few days, and oblige, yours, &c.
J. Guthrie.
The deposition of a Clerk in the establishment of Anderson & Co. proves: that he opened and examined the lot of attached goods, that the outer boxes were marked with some single letter, as he then recollected, and directed to St. Louis — the inner or smaller boxes contained in those, dr some of them, were marked J. C. Guthrie & Co. Prior to this examination, Anderson & Co. had sold something like thirty thousand dollars worth of goods claimed by J. C. Guthrie & Co. — that the attached goods contained pretty much the same private marks as other goods which had been claimed by the Guthries, and which he, witness, had examined, and the goods seemed to be of same kind pretty much — the private marks of Guthrie were generally on prints and domestics, which were the largest portion of the goods; that he did not recollect examining all the goods with a special view of ascertaining their marks, but all the marks he recollected to have *101seen, were similar to those on goods which Guthrie had claimed as his — a portion of the goods, such as hats and shoes, &c. he did not examine, and did not know how they were marked, or whether marked at all; the goods were in bad order and appeared to have been badley handled ; witness believed that the goods then belonged to Guthrie & Co. or had belonged to them, from the circumstance of the marks and their appearing to be of the same stock. Such are the circumstances and proof conducing to establish ownership of the goods in the Guthries or one of them.
The answers of t5le Guthnes-The appellants, upon the other hand, in support of their claim to the goods, rely as follows: The Guthries both answer the appellees’ bills, and in the most direct and positive manner, deny all the allegations of fraud; they deny that the attached goods belonged to them ; they deny that they have any interest in them in any way whatever; they deny having sold to Morrow & Puryer, or either of them, directly or indirectly, any goods — the an. swers are full and very explicit.
J. T. Guthrie, in his answer, states very circumstantially, how the goods in contest came into his possession; that about the 1st October, 1836, information reached Louisville, that Morrow, with the remaining portion of the goods, which he and Puryer. had started down the river with, in the spring preceding, was in Arkansas in bad health; that their Clerk had died, and that Puryer, who had started for Kentucky and stopped to visit his family in Missouri, had been there taken sick and had also died.
Upon this information, Leverett Kasson, who had a large claim upon Morrow & Puryer, and who, in consequence of the death of Puryer and the reported condition of Morrow’s health, apprehended that his stock of goods and other effects were in jeopardy, prevailed upon and made an arrangement with said Guthrie to go to his relief; that he found Morrow in Arkansas in bad health, and upon learning the death of his partner, he determined to send the residue of his goods to St. Louis — they were accordingly put on board the first boat that came up, the-steamboat Princeton, bound to Louisville, in charge of *102said Guthrie, to be left at the mouth of the Ohio — Morrow was compelled to remain a few days at, Helena, to close his business there ; that when the boat reached the mouth of the Ohio, in consequence of the weather being very wet and the impracticability of procuring a secure place of deposit, Guthrie determined to let them remain on board the boat and send them to Louisville; he accordingly requested the Clerk to give him á receipt for the goods, and he gave him the bill of lading before referred to, and prepared it as if made when the goods were first put on board at Helena; and he, at same time, gave the Clerk the note addressed to Anderson & Co. Guthrie left the boat at the mouth of the Ohio, and visited St. Louis and Illinois, as he intended when he left Louisville.
On the 3d December, 1836, the appellant, Morrow, exhibited his petition in the Court below, asserting claim to the attached goods, and praying to be made a defendant. He was made a defendant and filed his answer, in which he most emphatically denies that the Guthries*, or either of them, had any interest in any portion of the attached goods ; that when seized, and before and since, they were exclusively the property of himself and the representatives of his deceased partner; he-, denies having purchased any portion of them of the Guthries, or either of them; he gives a detailed account of the purchases made by himself and partner of the stock of goods with which they had left Louisville, about the 1st of April preceding, in a trading boat; that the stock amounted to about $7000, purchased of divers designated houses in-Louisville; he explains also, how the goods came into the custody of J. T. Guthrie; that he requested him to take charge of the goods as slated in Guthrie’s answer, to land them at the mouth of the Ohio, and re-ship them for St. Louis, whither he was going, and deliver them to the house of Taber, Shaw & Tatem; that in a few days afterwards, he, Morrow, went on to St. Louis and learned from said firm that Guthrie had been there and communicated the information and stated the circumstances under which the goods had been sent to Louisville, and had left for Illinois. This answer is, in all respects, full and *103satisfactory, and is sustained, we think, by the testimony in the case. Portions of the goods are identified and proven by the very individuals of whom Morrow and his partner had purchased them. It is in proof that they had made purchases of various houses in Louisville. Puryer is proved to have been of good character — that he had means and was in good credit for several thousand dollars.
So much of the answer of J. T. Guthrie and of Morrow as state the circumstances under which the former left Louisville for Arkansas, to render assistance to Morrow, if needed, is fully sustained by the testimony of Kasson — he states that Guthrie went at his instance and at his expense.
It appears, that the Guthries came from Pittsburg to Louisville, in the Spring of 1836, with a large assortment of goods, which were shortly after seized and sold by attachment. There is no evidence that they sent any portion of their goods lower down the river than Louisville, or that they had other goods than what they had vended or had been seized by attachments.
It appears from the testimony, that Morrow. & Puryer packed up their goods at the store house or rooms of Kasson, who was an auctioneer and had sold portions of the goods of the Guthries, and that they had used boxes in which Guthries’ good had been packed and which were marked J. C. Guthrie & Co.; that Morrow & Co. in the various lots -purchased by them, may have got hold of goods which had belonged to the Guthries, is very probable, and in this way the marks upon portions of the attached goods may be accounted for. The boxes in which the merchandize was packed, when they reached Louisville and were delivered to Anderson & Co. were marked for St. Louis. This circumstance conduces to sustain the answer of Morrow and also of J. T. Guthrie, as to the destination of the goods when they left Helena, and as to the bill of lading which Guthrie states was made out in haste at the mouth of the Ohio. But the Guthries had been crashed and broken up at Louisville in the spring of 1836. There is no evidence that after that they had either goods or means ; and would J. T. Guthrie, had he been the owner of the goods in question, or had any interest *104in them, would he have sent them to Louisville, the theatre of his fallen fortunes and ruin, and where he could hardly hope they would escape the vigilance of his creditors? We think not. It appears that Guthrie was a connection of Morrow, and on that account was more readily prevailed upon to go to his assistance, and the circumstance also tends to explain and account for the man-nerin which Morrow had entrusted him with the goods. The appellees made Kasson a defendant, alledging that he was indebted to'the Guthries or. had their effects in his hands. The allegations are denied in his answer, and no decree rendered against him.. The counsel for the appellees insist that Kasson was an interested witness, and that his testimony should be disregarded. It is true it does not appear that his claim upon Morrow & Co. had been discharged, but he sets up no claim to the goods in contest nor to their proceeds, nor does it appear that he has any. The exception to his deposition was, therefore, we think, properly overruled.
Attaching creditor must show the attached property to belong to the defendants. On the sale of property attached, and a decree for the payment of the proceeds to the attaching creditor, it is proper that the defendant or his counsel be notified of such order, that he may resist it, or supercede it by appeal, &a.In view of the whole case, we are of opinion the goods attached were the property of the appellants, and that the Court erred in decreeing the proceeds to the appellees.
A few days after the rendition of the final decree in these cases, it appears that Hamilton Smith, Esq. the attorney for the appellees, and to whom the Court had permitted to be loaned a portion of the money arising from the sale of the goods, brought the money and interest thereon into Court, and which was received by the Court in discharge of said Smith’s obligation, and it further appears that said Smith was permitted by the Court forthwith to withdraw the money thus paid in, as the counsel of the appellees and on account of the decree. We are clearly of the opinion the Court should hot have permitted the money thus to be withdrawn without notice to the appellants or their counsel, and thereby affording an opportunity for an appeal or resistance. It does not appear that the appellants or their counsel were present in Court, or had any notice of the motion thus to with, draw the money. As the Court had power over the de. cree, during the whole term of the Court, it should also have retained the control of the fund — at all events, it *105should not have entertained the motion to withdraw it without affording the opposite party an opportunity to resist it by appeal oi otherwise.
Wheallij for appellants : Fry <$■ Page for appellees.It is, therefore, the opinion of the Court that the decree herein be reversed, and also the order authorizing H. Smith to receive and withdraw from the Court the sum of $1387 41, on account of said decree; that the causes be remanded with directions to dismiss the complainants’ bills with costs; and that the money arising from the sale of the attached goods, be ordered to be paid over to the appellants; and upon their motion, that the Court make a rule upon said H. Smith to return into Court said $1387 41, or show cause to the contrary; and that the Court make such other and further-orders, touching the premises, as may be equitable.