LEWIS E. JONES & BENJAMIN SMITH, Plaintiffs in Error, vs. ROBERT A. LAKE, Defendant in Error, 2 Wis. 210

By the Court, Smith, J. This is an action of trespass de bonis, for the taking and carrying away of the plaintiff’s hogs and pigs. -The plea is the general issue, and notice is given under it, that the defendants will prove on the trial that the property, at the timé of the trespass alleged, was the property of Henry D. Cotton and Henry Lake, and that the same was taken under an attachment' issued by Dean Hooper, justice of the peace, -in favor of the defendants, against Henry Lake and the said Cotton.

The defence in this case, on the part of the defendants below, as disclosed by the pleadings, and as indicated by the evidence offered, is not based upon a denial of the actual possession of the plaintiff below, nod upon a denial of such a' title in him as would draw to it the possession in,him. But the theory of the defence is, that the plaintiffs in error were attaching creditors of Cotton and Lake, and as such they had the .light to attack the sale or transfer of the property by Henry Lake and Henry D. Cotton to Robert A. Lake.

It is not perceived in what manner the defendants below placed themselves in an attitude or position to enable them to attack such alleged- sal<3. We Lave repeatedly decided, that the party offering evidence, must render the same competent, in the order in which, and at the time when, it is tendered. Before it was competent for the defendants "below to impeach the sale by Henry Lake of his firm of Lake and Cotton, on the ground of fraud, it was necessary that they should show they were creditors of Lake and Cotton.

This is not alleged in the notice accompanying the plea of the general issue, and though we should give to that notice, in a justice’s court, a liberality so extensive as to imply the relation of creditor from the facts stated in it, in regard to the attachment issued in their behalf, yet, not even the attachment appears to have been given in evidence ; and if it had been, it would not have proved, nor tended to prove, an indebtedness on the part of Lake and Cotton.

The circumstances which tend to 'prove a sale fraudulent, such as many of those offered by the defendants below, would ''certainly have been admissible, had the proper foundation been laid, by first proving the indebtedness which created the relation of creditors. A sale, however fraudulent as to creditors merely, is good as between the parties, and all the world except creditors Hence, in an action of this kind, none but such are permitted to impeach it. It is no defence for a mere tort feasor, that the property of the plaintiff has been acquired in fraud of creditors.

Nor, is it more available to allege that the plaintiff had purchased or procured the property in fraud, of the firm of which his vendor was a member. It it not necessary to examine particularly all of the propositions or offers of evidence by the plaintiffs in error. Usually, a liberal latitude is allowed, when it is attempted to impeach a sale as fraudulent as against creditors. But the party seeking to do this must first prove the indebtédness to- him, and establish his relation of creditor.

As this was not attempt ed, nor any offer made to do so,' accompanying the offers of the evidence "below, we think the court below was correct in its ruling, and the judgment ought to be affirmed.