*211 By the Court

It appears from tbe finding in tins case, that on tbe 18tb day of January, 1868, tbe plaintiffs recovered judgment against tbe defendant August Mat-thaus for §280.16; that an execution bas been duly issued thereupon, and returned unsatisfied, and that said August bas no property out of which said judgment can be made except tbe notes sought to be reached by this action. Without entering into details, it is enough to say that there is no difficulty in deducing from the facts found, the conclusion arrived at by the Court below, substantially, to wit: that August Matthaus was beneficial owner of the property which formed the consideration of the $550 note ; and beneficial as well as actual owner of the note itself at the time when it was made. The Court finds that the said August Matthaus transferred, and delivered without endorsement, to the defendant Amelia Matthaus, his wife, the said promissory note for five hundred and fifty dollars, upon the condition, and with the agreement and understanding, then and there made and entered into, between the said defendants, that she, the said Amelia Matthaus, should receive and retain the said promissory note, and use the same for the benefit of the said August Matthaus in the support of himself and family. Under this arrangement, August Matthaus would, after the transfer to his wife, continue to be beneficial owner of the note. The Court further finds that “ on or about the 25th day of July, 1868, the said defendant Amelia Matthaus., in the presence of and with the consent of the said defendant, August Matthaus, and for the purpose of avoiding certain proceedings then pending in this Court looking to the application of the said note of §550 to the payment of the aforesaid judgment in favor of said, plaintiffs, and against said defendant August Matthaus, and of which proceedings the said defendants and * Lewis *212were cognizant, delivered up to the said * * Lewis the said promissory note for $550, signed by said Lewis, Chaffee and Pitts as aforesaid, and in lieu thereof, took from the said Lewis a promissory note signed by said Lewis, dated July 25th, 1868, for $180.93 and payable one month after date to the order of Amelia Matthaus; that the said promissory note is now, and has been ever since the said 25th day of July, 1868, in the possession of the said Amelia Mat-thaus, and no part of the same has been paid.”

It is hardly necessary to say, that as to the plaintiffs, August Matthaus must be regarded as beneficial owner of this note also.

Judgment was entered, charging the notes above-mentioned with the plaintiffs’ judgment, and interest and costs, and directing that the notes and indebtedness evidenced by them be applied to the payment of the plaintiffs’ j ndgment, &c. And the defendants, and each of them, were ordered forthwith to bring said notes, and each of them, into court, and place them in the hands of the clerk to be disposed of, or collected, and the proceeds applied to the satisfaction of plaintiffs’ judgment, interest and costs thereon, and costs of this action, &c. If August Matthaus is the beneficial owner of either of these notes, it matters not in whose name the title to the same is, nor in whose possession the notes themselves may be found. In any event, creditors have the right to regard that of which he is beneficial owner as his property, and to insist that it shall be applied to the payment of his just indebtedness. If either of these notes is the property of August Matthaus, and is in the possession, or under the control of the defendants, there is no reason why they should not be compelled to bring it forward.

' As to the $550 note, it is found that it was delivered up to Lewis, who appears to have been a surety upon the same. *213As nothing appears to the contrary, this note would be presumed to remain in the possession of Lewis; and as he is not made a party to this proceeding, there cannot be, as against him, and his rights in the $550 note, any finding or presumption of fraud. As to the $550 note, we are, then, unable to perceive how the judgment can be sustained.

The presumption is, that it is not in the power of the defendants to bring it forward, and as against Lewis, the holder of it, it cannot, in this proceeding, be charged with the indebtedness of the defendants.

Put as to the $480 note, we perceive no error in the find-, ings of the Court, or the judgment based thereon. The judgment must, therefore be reversed, unless the respondents will consent to modify the same, in accordance with the views above expressed, in which case, it will be modified accordingly.