We do not think that the assignment by Hutchinson to Hainsworth was void as made to hinder, delay, and defraud creditors. The testimony shows that it was agreed between them, at the time the assignment was made, that the surplus of the fund assigned over the indebtedness of Hutchinson to Hainsworth, if any, should be paid over by the latter to another creditor of the former. There was, therefore, no reservation of any portion of the fund for the benefit of the assignor; and it is well settled in this State that an assignment which operated merely as a preference of certain creditors over others is not fraudulent. Such an assignment can only be set aside by proceeding under Pub. Stat. R. I. cap. 237, § 13.

Said Hainsworth’s petition for a new trial is granted, without costs.