Under the first count there was evidence which *305would have justified a finding for the plaintiff, unless his recovery is prevented by the fact that the personal property which had been mortgaged by Anderson to the defendant, or its proceeds, came afterwards into the possession of the plaintiff. But it did not all come into the hands or possession of the plaintiff. Fatales, who had bought the property at the foreclosure sale made by the defendant, had himself sold articles therefrom to the value of $245 and what came to the plaintiff was of course diminished to that extent. And the portion of the property which the plaintiff did receive came to him subject to the claims, not only of the prior mortgagee, but also of Fatales, who claimed under the defendant’s mortgage, and the plaintiff subsequently made settlements of both these claims, the terms of which did not appear. It is not material upon the question of liability that the property may have been subject to a prior mortgage held by Owens. Manifestly the judge could not rule as matter of law that this defense was made out. The issues under the first count should have been left to the jury.

The jury could have found that the plaintiff was entitled to recover under his second count, unless it appeared that Anderson’s assignment of the Rosval mortgage to the defendant was for a present consideration. But this was not conclusively shown, although undoubtedly the jury might have so found. There was evidence that the goods, the price of which furnished the consideration for this assignment, had been bought by Anderson and shipped to him by the defendant at least three days before the assignment was made. The jury could have found that the assignment was given, not upon the present consideration of this purchase and sale, but only to secure the already existing liability created by the purchase and sale. The issues under the second count should have been left to the jury.

Under the terms of the report, judgment must be entered for the plaintiff for $250 upon the first count and $100 upon the second count, — that is, for the total sum of $350.

So ordered.