Throop Grain Cleaner Company agt. Smith. Farrell Company it was a precedent debt. There was no new consideration nor anything parted with, or surrendered or cancelled, at the time. And it has long been settled that no person can claim title, as bona fide holder, who receives a bill or note on account of a precedent debt (Stalker agt. McDonald, 6 Hill, 93; Bank of Salina agt. Babcock, 21 Wend., 499; Bunk of Sandusky agt. Scoville, 24 id., 115; Torley agt. Lee, 12 N. Y., 551, 555; Van Heusen agt. Radcliff, 17 id., 580, 583; Phoenix Ins. Co. agt. Church, 81 id., 218, 222). III. There was no assignment or transfer of the claim at the time the attachment was levied, as matter of fact, and this question should have been submitted to the jury. The transfer attempted to be made was by means of the two drafts. All the letters were written after the drafts were made, except one, and were incident to the transfer. No previous arrangement was made with the Farrell Company for any transfer. The attachment debtor sent the drafts to the Farrell Company for collection, and requested them to give credit for the same on their books. This was not done, and on the 19th day of December, seven months after, had not been done. Two drafts were made, one for $1,050, and one for $2,800, because the machinery had not all been delivered, the smaller draft representing the machinery delivered, Allis stated would be paid by Smith at once, but the other he would not pay until he received the balance of the property. The drafts were forwarded by the Farrell Company for collection, with instructions to the bank to which they were forwarded to hold the larger draft and not present it until the balance of the machinery was received by Smith. This course was pursued. Smith on receiving notice of the drafts from Allis refused to accept or pay them until he had received all the machinery, and a claim of Rathbun's for $385 he had paid was deducted, and he was indemnified against the attachment proceedings and the replevin suit brought at the request of Allis. This reduction being made and indemnity Throop Grain Cleaner Company agt. Smith. given, Smith, on the 10th day of September, and after this action was commenced, paid the $3,465, the balance of the claim. The balance of the machinery represented by the larger draft was not shipped by the Farrell Company, or received by Smith, until after the attachment was levied upon the claim, over four months before Smith paid the claim. Up to the time the claim was paid, no arrangement had been made between Allis and the Farrell Company as to how the money should be disposed of by the Farrell Company. They then corresponded on that subject, but so far as the record shows no agreement has yet been made for its disposition, and the Farrell Company hold it as collection agents, for and subject to the directions of Allis and as his money. It takes, in this case, three to make a bargain, and since there was no acceptance or application of the drafts by the Farrell Company in the manner directed by Allis when he sent the drafts, and Smith did not accept them until after the levy of the attachment, the claim was secured under that levy, unaffected by this pretended transfer. This must certainly be the case as to the position of the claim covered by the larger draft (Bills agt. Nat'l Park Bank, 89 N. Y., 343; Gibson agt. Nat'l Park Bank, 98 id., 87; Sidenbach agt. Riley, 2 How. [N. S.], 143; Blaut agt. Gabler, 77 N. Y., 461; Juilliard agt. Chaffee, 92 id., 537; Powell agt. Powell, 71 id., 71.) The Farrell Company could only enforce collection from Smith by virtue of his acceptance, and, therefore, both the consideration of the drafts, as between Allis and the Farrell Company, and the condition and extent of their acceptance, or whether he accepted at all, were proper and material subjects of inquiry and submission to the jury (Brill agt. Tuttle, 81 N. Y., 454; Ehrics agt De Mill, 75 id., 320; Risley agt. Smith, 64 id., 576; Gallager agt. Nichols, 61 id., 435; Munger agt. Shannon, id., 251; Shaver agt. The Western Union Tel. Co., 57 id., 459). Besides these drafts could not effect a transfer of the claim, as they were in the usual form, and were not by their terms Throop Grain Cleaner Company agt. Smith. drawn on any specific fund or demand (Attorney-General agt. The Continental Life Ins. Co., 71 N. Y., 325). The question should have been submitted to the jury, whether, if a transfer of the claim had been made, it was made in good faith or fraudulently, and for the purpose of defrauding the plaintiff in the attachment (Lansing, Sheriff, agt. Streeter, 57 Barb., 33; The Merchants' and Traders' Bank agt. Dakin, 50 id., 587; Anthony agt. Wood, 29 Hun, 239; Klinck agt. Kelley, Sheriff, 63 Barb., 622; Rinchey agt. Stryker, 28 N. Y., 45). In Thurber agt. Blank (50 N. Y., 80), and Castle agt. Lewis (78 N. Y., 131), upon which the decision in Anthony agt. Wood (96 N. Y., 180), was based, the question of fraudulent transfers was not involved. Bills agt. National Park Bank (89 N. Y., 343), was an action not unlike this, and the court very pertinently remarks: "If claims can be attached only by service of the attachment upon the attachment debtor, and the actual seizure of the claim while he holds them, then a fraudulent debtor may easily place his creditors at defiance by concealing himself, or absenting himself, from the state, and though his debtors remain within the jurisdiction of the court, the debts cannot be attached; or he may, after the attachment has been served upon his debtor, make a fraudulent, sham or merely formal transfer, and thus defeat the attachment. Such has not been generally understood to be the law of the state, and is not now the law." This case was again before the court of appeals (Gibson agt. National Park Bank, 98 N. Y., 87), where the former decision(89 N. Y., 343), was reaffirmed, and the case of Anthony agt Wood applied. This bank case clearly sustains the position that this claim was properly attached in the hands of Smith, as it was levied before he accepted or paid the drafts, or the amount to be paid was agreed upon or fixed, or the property constituting the consideration of the claim was received, or any arrangement was made for the application or disposition of the money, and after this action was commenced (Anderson agt. Hun, 5 Hun, 351; Throop Grain Cleaner Company agt. Smith. Raymond agt. Richmond, 78 N. Y., 351; Turrie's Case, 1 Smith's L. C., 1, and notes). But the defendant has himself presented this issue of fraud. The answer sets up as new matter the transfer, and alleges that it was made in good faith and for a valuable consideration. The issue thus presented, the defendant was bound to sustain by evidence (see Gibson agt. National Park Bank, 98 N. Y., 87), and proofs were given by him to sustain this issue, and the plaintiffs were, therefore, entitled to meet such proofs and to have the question submitted to the jury on the evidence pro and con. Besides, to this issue no reply is required, and it is to be deemed controverted, and the plaintiffs are entitled to traverse or avoid it by proofs on their part (Code Civil Pro., sec. 522). If, under all the facts, this action can be defeated, then the attachment creditor is utterly remediless under the laws of this state, to which he has a right to seek a remedy. The attachment debtor and his alleged assignee are both non-residents of and without property in this state and the law provides no mode under which jurisdiction can be obtained against them whereby proceedings to set aside the alleged assignments can be taken or enforced. Both the attachment debtor and his alleged assignee have furnished ample and available indemnity to this defendant to secure him against any recovery that may be had against him in this action, and the action should be sustained, for the facts appearing in the proofs establish a fraudulent transfer of this claim beyond any question, under the rules of law too well known to require a reference. And the assignees, although possessed with full knowledge of all the facts surrounding these transactions, have not seen fit to ask to be impleaded, and submit themselves to the jurisdiction of this court, as they could and should, had they any rights to protect (Code Civil Pro., sec. 820; Steuben County Bank agt. Alberger, 56 How., 345; Bills agt. National Park Bank, 89 N. Y., 343; Johnston agt. Stimmel, id., 117; B. and O. R. R. Co. agt. Arthur, 90 id., 243). Throop Grain Cleaner Company agt. Smith. And it is submitted upon the whole case, that the former decision (34 Hun, 91) should be reaffirmed and a new trial granted, with costs to abide event. Waters, McLennan & Dillaye, for defendant. I. The plaintiffs right of action depended solely upon the title acquired by the sheriff, by virtue of his levy of an attachment, issued in an action wherein the plaintiff's company were plaintiffs and Edward P. Allis was defendant. The levy was made on the 21st day of May, 1881, upon the chose in action described in the pleadings. II. Upon the day of the levy, or rather the attempted levy, the defendant, Smith, did not owe the defendant in the attachment action the claim in suit, as it had been transferred before the levy of the attachment. III. The transfer operated as an equitable transfer of the claim to the Farrell Foundry and Machine Company, of Ansonia, Connecticut, from the delivery of the draft and letters dated May 10, 1881, to wit, May 13th, and from that date the Farrell Foundry and Machine Company had a perfect right of action to recover said debt of Smith (Brill et al. agt. Tuttle, 81 N. Y., 454; Lewis agt. Berry, 64 Barb., 593; Parker agt. City of Syracuse, 31 N. Y., 376; Risley agt. The Phoenix Bank, &c., 83 id., 318; People ex rel. agt. Controller, 77 id., 45). IV. The creditor can maintain no action under the attachment which could not be maintained by the defendant in the attachment suit (Thurber agt. Blank, 50 N. Y., 80, 86). And neither the creditor in the attachment suit nor the sheriff can either maintain an action or defend one, upon the ground that. the chose in action was fraudulently transferred (Castle agt. Lewis, 78 N. Y., 131, 137; Anthony agt. Wood, 96 id., 180). The motion for a new trial should be denied, with costs. BARKER, J.-If Allis & Co. sold and transferred the debt in suit to the Farrell Company before the attachment was levied |