The opinion of the Court was drawn up by
Weston C. J.Where the question is, whether the vendee of personal property shall hold it, or whether it shall be subject to the attachment or seizure of the creditor of the vendor, upon the ground that th<? sale- was fraudulent, the debtor or vendor is a competent witness for the vendee or his assignee. His interest is balanced. If the creditor prevails, his debt is discharged to the value of the property, and he is answerable for the value to his vendee. If the vendee prevails; he is no longer liable to him, but his debt, which might have been extinguished to the value of the property, remains unpaid. The contingency of different estimates of value, the law does not regard as sufficient to disturb this equipoise of interest. Eldridge v. Wadleigh, 3 Fairf. 371. Warren, the witness received, stood in this predicament. On the one side, was the lien of the plaintiff and the reversionary interest of the-witness, which made up the value of the property; on the other was the same value, made available to the witness, by the extinguishment of his debt to an equal amount.
It is urged, that in addition to the liability of Warren, arising from his covenant to Bradley, which was assigned to the plaintiff', he is further liable for the faithful performance of his duty to him, as his agent. To this it may be answered, first, that his liability upon both grounds would not exceed the value of the property which would be balanced by the payment of the debt of the witness, to an equal amount. Secondly, the fidelity or unfaithfulness of the witness is not an issue between these parties; nor is that point determined by this verdict.
*131It is farther insisted, that the witness should not have been permitted to testify, that it was his intention to act as the plaintiff’s agent. If he did not so act, and had failed to do what ho intended, his secret intentions were not admissible to affect the case. But he expressly and affirmatively testifies, that he did act as agent. This, of itself implies an intention to do so. A direct statement of such intention, was another form of expressing the same thing, not adding to its strength, or giving it a different character. Wo perceive no legal objection to the employment of Warren as an agent.
The arrangement entered into between Bradley, Warren, and the plaintiff, was not, in itself, prima facie evidence of fraud, as the Judge was requested to instruct the jury. All the circumstances indicative of fraud, whether in the employment of Warren as agent, or otherwise, were left to them, with proper legal instructions. The jury have found the transaction fair, and that the agent, in behalf of the plaintiff, took all the possession of the property, of which, from its nature and situation, it, was susceptible. This was a question of fact, which it did not belong to the Court to decide; but one properly appertaining to the provinco of the jury. Possession by_his agent was equivalent to possession by the plaintiff!
The letter from Bradley to Chase, was written after the title of the plaintiff had accrued; and was not admissible to affect it. Bradley might have been called as a witness by either party, his interest, like Warren’s, being balanced.
The counsel for the defendant requested the presiding Judge to instruct the jury, that the mortgagee of personal property cannot maintain trespass against an officer, seizing or attaching the same, as the property of the mortgagor, until he has given notice of his claim to the officer, and stated its amount, or the officer has neglected or refused to pay his demand and discharge his lien. To sustain this request, the defendant has cited Miller v. Baker, 20 Pick., 285. The Court do not decide this point, but if they had, it depends upon a provision in the statute of Massachusetts, which is not to be found in our statute. Mass, revised laws, c. 90, § 79. It is there provided, that the mortgagee shall furnish to the officer, in writing, a true and just account of the amount, for *132which the property is mortgaged. By our statute of 1835, c. 188, § 3, the mortgagee is bound to do this, upon a demand in writing being first made upon him ; and by the second section, the extinguishment of the lien, is made a condition precedent to the attachment of the property, for the benefit of the creditor. By the same section, without such previous payment, the officer might sell the debtor’s right to redeem; but here he sold and delivered the property itself, without any saving of the rights of the mortgagee. In our judgment, the first requested instruction was properly withheld.
We are not aware that the law requires, that the agent should declare or make known his agency to others, to make his acts effectual in behalf of his principal. His failing to do so, might be evidence of fraud, upon which the jury have passed ; but it is not an omission, which of itself the Court is bound to declare fraudulent. The finding of the jury is not submitted to our revision. There is no motion to set aside the verdict as against evidence. In our opinion, the rulings and instructions of the presiding Judge were in conformity with the law applicable to the case.
Judgment on the verdict.