title passed to his assignee. The court put the decision upon the ground that, if the property has not been conveyed in fraud of creditors, the assignee has no greater interest in or better title to it than the bankrupt.

This is decisive of the case at bar. As we have said before, the evidence would justify the jury in finding that the title to the oil passed to the plaintiff, as between the partics. This being so, the bankrupts had no title at the commencement of the proceedings in bankruptcy, and no title vested in the defendant, their assignee. As against them, the plaintiff might take possession of the goods, if he could do so peaceably, or recover possession of them by a writ of replevin. In re McKay, 1 Lowell, 345. In re Griffiths, 1 Lowell, 431. Goss v. Coffin, 66 Maine, 432. New trial ordered.*

A similar decision was made in Worcester, on the same day, in the case of JAMES D. GREEN vs. ALBERT D. HOLMES.

REPLEVIN of a horse, express wagon, safe, three show cases and a cigar

case.

At the trial in the Superior Court, before Pitman, J., without a jury, it appeared that the plaintiff's brother, George D. Green, who was in the retail grocery business at Lancaster, owed the plaintiff in February, 1876, $400 for services as clerk in the store, and on February 11 sold the plaintiff the goods in question, and the plaintiff received them in payment of his claim and took a bill of sale; and that George D. Green went into bankruptcy in about two months after the sale, and the defendant was chosen assignee of his estate and took possession of the goods in question.

The evidence upon the question of delivery to the plaintiff was as follows: The plaintiff testified that after the bill of the articles was made out, his brother went to the back of the store in which they both were, and within about ten feet of the horse and wagon, which were standing outside in the usual place of waiting for goods, and, pointing to them, said, “These I hand over to you;" that he then stepped inside the store and pointed to the show cases and cigar case, and to the safe, and said that he handed them over to him, and then passed him the bill of sale. It also appeared that the cigar case was about two feet square and was upon the counter, with cigars in it; that the show cases were each six or seven feet long and two feet wide and from six to ight inches deep, and were also upon the counter, filled with goods, and that the safe weighed 1500 pounds.

George D. Green continued to carry on the business at the store, as formerly until his failure; and the plaintiff testified that, at the time of the sale, he gavə bim permission to use the articles till June 1, 1876, and that they were so used to the time of his failure in business.

ASA P. MORSE vs. GOODRICH M. DAYTON.

Suffolk. Nov. 22, 1877. — July 18, 1878. COLT & LORD, JJ., absent.

Questions of law, arising at the trial, in the Superior Court, of charges of fraud under the Gen. Sts. c. 124, §§ 31-34, against a person applying to take the oath for the relief of poor debtors, may be reported to this court, after verdict, under the Gen. Sts. c. 115, § 6.

An appeal from the judgment of a magistrate upon charges of fraud under the Gen. Sts. c. 124, §§ 31-34, against a person applying to take the oath for the relief of poor debtors, by which the debtor is adjudged guilty of some of the specifications in the charges and not guilty of others, vacates the whole judgment, and opens the case for trial upon all the charges, although the other party does not appeal. A creditor, who has filed charges of fraud under the Gen. Sts. c. 124, §§ 31-34, against a person applying to take the oath for the relief of poor debtors, from the judgment of the magistrate on which charges the debtor has appealed, is not barred from prosecuting the charges by proving his claim against the debtor in bankruptcy, pending the hearing before the magistrate and before the charges are filed.

APPEAL by Goodrich M. Dayton from a judgment and sentence rendered by a magistrate upon charges of fraud filed by a judgment creditor against him upon his application to take the oath for the relief of poor debtors.

Trial in the Superior Court, before Putnam, J., who, after verdict, reported the case for the determination of this court in substance as follows:

On March 28, 1876, the debtor was arrested upon an execution in favor of the judgment creditor, and gave the recognizance required by the Gen. Sts. c. 124, § 10. On April 24, 1876, the debtor appeared before a magistrate duly authorized to act, and applied to take the oath for the relief of poor debtors. The creditor appeared, by his attorney, before the magistrate and examined the debtor, and the examination was continued by adjournment until May 13, 1876, when the creditor filed charges

Upon this evidence, the judge ruled that it appeared, as matter of law, that no sufficient delivery was made; and ordered judgment for the defendant. The plaintiff alleged exceptions.

G. F. Verry & F. A. Gaskill, for the plaintiff.

H. E. Fales, for the defendant.

BY THE COURT. This case is governed by Dugan v. Nichois, supra There was sufficient evidence of delivery to be submitted to the jury.

Exceptions sustained.

of fraud against the debtor as provided in the Gen. Sts. c. 124, §§ 31-31. To these charges the debtor pleaded not guilty; and thereupon a hearing and trial were had before the magistrate, who found that the debtor was guilty of specification numbered 5 in said charges and not guilty of all of the other specifications, and, on that ground only, refused the debtor the oath for the relief of poor debtors, and sentenced him to ten days' imprisonment in the county jail. From this finding and sentence, the debtor appealed. The creditor did not appeal.

Afterwards and pending the appeal, namely, on April 18, 1877, the debtor filed a further plea to the effect that on April 19, 1876, he was adjudged a bankrupt by the District Court of the United States for the District of Massachusetts; and that on May 2, following, the creditor proved the judgment, upon which the execution issued whereon he was arrested, against his estate in bankruptcy.

At the trial, the creditor proposed to offer evidence upon all of the specifications in the charges. To this the debtor objected, on the ground that, the debtor having been acquitted by the magistrate upon all but the fifth specification, and the creditor not having appealed from that decision, the fifth specification only was open to the creditor on this appeal. The judge sustained the objection, and ruled that evidence could be introduced under the fifth specification only.

The truth of the debtor's last plea having been admitted by the creditor, and it appearing that the creditor had proved his judgment against the estate of the debtor in bankruptcy, while the hearing before the magistrate was pending, and before the charges of fraud were filed, the judge ruled that this proceeding could not further be maintained by the creditor; directed the jury to return a verdict for the debtor; and reported the case for the consideration of this court.

If the rulings were correct, judgment was to be entered on the verdict; otherwise, a new trial was to be ordered.

D. B. Gove, for the creditor.

R. D. Smith & M. M. Weston, for the debtor.

GRAY, C. J. The proceedings upon the application of a debtor to be admitted to take the poor debtor's oath, and upon sharges of fraud filed by the creditor by way of answer to such

an application, are in their origin and trial, and as regards the Jurisdiction of courts, in the nature of a civil action. Parker v. Page, 4 Gray, 533. Stockwell v. Silloway, 100 Mass. 287. Anderson v. Edwards, 123 Mass. 273. Questions of law arising at the trial in the Superior Court might therefore be reported after verdict for the determination of this court. Gen. Sts. c. 115, $8.

From the judgment of a magistrate on such charges of fraud, "either party may appeal to the Superior Court, in like manner as from the judgment of a justice of the peace in civil actions." Gen. Sts. c. 124, § 32. In the case of an appeal from the judgment of a justice of the peace in a civil action, "the case shall be entered, tried and determined, in the court appealed to, in like manner as if it had been originally commenced there." c. 120, § 25. The appeal vacated the whole judgment of the magistrate, as well that part which was in favor of the appellant, as that part which was against him, and opened the case for trial in the Superior Court upon all the charges of fraud.

The provision of the bankrupt act of the United States, that a creditor proving his debt in bankruptcy shall not be allowed to maintain any suit against the bankrupt, but shall be deemed to have waived all right of action against him, and to have discharged and surrendered all proceedings already commenced, and unsatisfied judgments already obtained, does not prevent the creditor from bringing a new suit and making a new arrest on the same debt, in case a certificate of discharge in bankruptcy is refused. U. S. Rev. Sts. § 5105. U. S. St. June 22, 1874. § 7. Valpey v. Rea, 124 Mass. 99.

But a debtor discharged from arrest or execution, under the statutes of the Commonwealth, on his application to take the poor debtor's oath, will be exempt from arrest upon any subsequent execution or process on the same judgment or for the same cause of action. Gen. Sts. c. 124, § 22. The proceedings on such an application, and on the incidental charges of fraud against the debtor, are not affected by the commencement of bankruptcy proceedings, or even by a certificate of discharge obtained thereon, and cannot therefore be defeated by the mere proof in bankruptcy of the creditor's claim. Stockwell v. Sillo way, 100 Mass. 287, and 105 Mass. 17.

It follows that the rulings of the learned judge of the Supe rior Court were erroneous upon both the questions reserved by him for our decision. New trial ordered.

SIMON AHREND vs. GEORGE F. ODIORNE & others.

Suffolk. March 8.-July 18, 1878. COLT & SOULE, JJ., absent.

In an action against the principals and a surety on a bond, executed in the name of a firm by one of two partners named as principals, and by the surety, the default of the principals is an admission of the due execution of the bond by the firm, which the surety cannot controvert.

If a person signs a bond as a party thereto, it is immaterial that he is not named in

the bond.

CONTRACT against George F. Odiorne, Retire C. Sturges, George Odiorne, K. W. Baker, William Maxson and Alexander Irving, upon a bond in the sum of $40,000, executed to the plaintiff, in which Sturges and George F. Odiorne, doing business under the name of R. C. Sturges & Co., were named as principals, and Maxson and Irving as sureties, and conditioned that the principals should build a certain vessel and perform a certain contract. The bond was signed by "R. C. Sturges & Co.," Maxson & Irving, George Odiorne and K. W. Baker. George Odiorne alone defended. The other defendants were defaulted.

At the trial in this court, before Lord, J., George Odiorne offered evidence tending to prove that he did not sign the bond intending to be bound as a party thereto, and that no seal was on the bond against his signature at or about the time when he signed his name. The plaintiff then offered evidence tending to show that a seal was affixed at the time the signature was made.

The defendant George Odiorne asked the judge to rule that the bond was not his bond, and that it was inoperative and void as against him for the following reasons: 1. The execution of it by the principals was by Sturges, and there was no evidence tending to show that there was previous authority or subsequent ratification by the other partner. 2. The name of George Odiorne was not contained in the bond, and there was no evidence