The opinion of the court was delivered, May 11th 1869, by

If the bill of sale, executed by Wootten, was an assignment of the goods in controversy to Lockhart & Frew, in trust for themselves and the other creditors whom they represented, it ought to have been recorded; and as it was not, it would necessarily follow that it was null and void under the express provision of the Act of 24th March 1818, and that the judgment was rightly entered in favor of the defendant on the reserved question. But if it was not an assignment, but an absolute sale of the goods for a full consideration paid by the vendees, then the judgment ought to have been entered in favor of the plaintiffs on the verdict. Whether it was an assignment, or a sale, the jury have found that the transaction was a fair one — that the consideration was paid — and that the vendees took actual possession of the property at the time of the transfer, and continued to *68hold it against the vendor; and that it was not made with an intent to defraud, hinder or delay his creditors. What, then, was the character of the transaction? Was it a sale or an assignment ? The bill of sale, on its face, imports a sale, and not the creation of a trust for the benefit of creditors. If it was, in fact, an assignment, it must be shown by other evidence than that furnished by the paper itself. Is there, then, any extrinsic evidence that the real character of the transaction was different from that expressed in the bill of sale ? We have not been able to discover any in the record. On the contrary, the evidence sent up with the bill of exceptions shows that Lockhart & Erew, acting for themselves and as the agents of the other creditors, purchased of Wootten the property mentioned and referred to in the bill of sale, in consideration of their surrender of the notes and drafts, of which he was the maker or drawer, amounting to the sum of $24,597. The fact that Lockhart & Erew were acting for themselves and as agents of the other creditors in making the purchase, did not change the nature of the transaction and convert what would otherwise have been a sale into an assignment for their benefit. As between the parties it was a sale, consummated by the delivery of the goods and the payment of the consideration; and as soon as the vendees surrendered the notes and drafts, in payment of the consideration, they ceased to be creditors of the vendor. There may have been a trust as between the firm of Lockhart & Erew and the other creditors for whom they were acting, but it was not created by the vendor, but arose from the fact that the goods were purchased with their joint means and for their joint benefit. Hot only the bill of sale, but all the evidence in the case shows that the transaction was intended as a sale, and not as an assignment in trust for creditors, and as it was fair and the consideration fully paid, the plaintiffs were entitled to the goods — and the judgment ought to have been entered in their favor on the verdict. The fact that some of the notes were not due, does not affect the validity of the sale, if made with an honest and lawful intent, as the jury have found.

Judgment reversed, and judgment for the plaintiffs on the verdict with costs.