unless the creditors assent to such terms as he shall prescribe, is in law fraudulent and void, as against the statute of frauds, being made with intent to delay, hinder, or defraud creditors of their just and legal actions."

In Mackie v. Cairns, 1 Hopk. Ch. 404, Chancellor Sanford says that when a debtor "transfers his property upon the condition that his creditors who are pursuing their legal remedies, shall relinquish their remedies, such a transfer is plainly made to coerce the pursuing creditors, it directly impedes the course of law and justice, and it must be void." Again, page 406, he says: "Where such assignments are made merely for the payment of debts, they are often convenient to creditors as well as debtors, and they seem to involve no great evil. But when the debtor is allowed to proceed beyond the single object of paying his debts, such assignments become pregnant with great mischief." "If he may assign all his property in trust, partly for himself and partly for his creditors, and may allot to some of his creditors absolute payment, and to others payment upon condition that they shall do or not do acts dictated by himself, he is, indeed, armed with a formidable power. If a debtor may, by any machinery of his own contrivance, either preserve his property for his own use, or wield it in such a manner that his creditors can not reach it in due course of law, or can not reach it without great difficulty, he becomes the master and holds the power of coercion." In page 407 he says: "It is only against the property of a debtor that our laws have any efficacy, and the laws concerning conveyances made in fraud of creditors, are now the only efficient check upon the power of disposition in the debtor. While assignments for the payment of debts must be supported, I can not perceive that either law, equity, or policy requires that such assignments should be sustained where they are complicated with trusts and followed by consequences so injurious and vexatious to creditors. Assignments containing the provisions which appear in this case are of recent invention, and if they can prevail they will, to a great extent, afford to debtors a secure triumph over their creditors." Chief Justice Savage, in the same case, 5 Cow. 580, esteems it a conceded point that a man can not put his property beyond the reach of his creditors, and he says, "when a debtor fails from misfortune or folly, or from dishonest motives, his property in moral justice belongs to his creditors. When he appropriates his property to his own use the act becomes fraudulent. Nor does it lie in his mouth to prescribe

AM. DEC. VOL. XXIV-19

terms to his creditors. The law is open to them. They have a right to pursue their debtor in the mode pointed out by law, and any act which obstructs them in their pursuit is against law, and of course void" as against creditors.

I have examined the foregoing cases, because it seemed to be assumed that our decision, if against the validity of the assignment, would contravene the authorities. It is somewhat remarkable that amidst all the strong language used on the subject, so little upon the simple question under consideration is embraced within the decisions. The case of Ingraham v. Wheeler, 6 Coun. 277, is full in point upon the case in hearing. There the assignment was to pay certain preferred creditors, and the residue to such others as should within six months execute a discharge, and the court held it void. In page 283, Judge Brainard says: "No insolvent debtor has a right to prescribe terms to his creditors; to say to them, take up with the crumbs, or my own terms, or have nothing.' Besides, if their creditors do not see fit to comply with their terms, where is the residue? The answer must be, in the hands of the trustees of the bankrupt's own creation, and for his own use and benefit, a trust necessarily resulting. I therefore lay this instrument totally out of the question, as being wholly void; and that upon the face of it."

The district court of the United States, in Maine, in Lord v. Brig Watchman, in April, 1832 (see Amer. Jurist, Oct. No., p. 296), has fully examined this subject. This court holds "that a transfer by a debtor of his property, which in its effect would delay the creditor's remedy against the estate for an indefinite period, unless they would consent to take a less sum than their whole debt in satisfaction, or consent to discharge the debtor on different terms from those borne on their contracts, is a conveyance made to delay and defraud creditors. The object of such a conveyance is to coerce the creditor to discharge the debtor from his contract without his fulfilling his obligations." No argument is required to prove such an intent illegal.

It seems to us clear upon authority and the reason of the thing, that the clause in the assignment of J., E. & Co., prohibiting any creditor from availing himself of any portion, except within ninety days he executed a release for his whole debt, is a manifest attempt on the part of these debtors to place all their property beyond the reach of creditors, by ordinary legal process, and coerce from them a release of their entire demands upon the possible contingency of realizing something out of the

effects after the expenses, securities, and preferred creditors are satisfied; and as such is void against creditors: Barret v. Reed, Wright, 700. The case before the court is a strong one to show the injustice of such proceedings. The debtors, the trustees, and only three or four of a large number of creditors have executed the assignment, while by its operation property to the amount of nineteen thousand dollars is held under it beyond the reach of legal process. An effort is made by it to procure releases from the general creditors, without the possibility of their obtaining one cent. The preferred creditors alone, who are postponed till the expenses, securities, and fees are paid, have claims upon this nineteen thousand dollars for upwards of thirty thousand dollars! Can this be considered as fairly devoting the property of insolvent debtors to the payment of their debts? Our statute of frauds makes void all assignments of goods in trust for the use of the assignor, and all conveyances of every kind made with intent to defraud creditors of their debts: 29 O. L. 218. The variations between the provisions of this and the English statutes, are not deemed material in any view of the subject before the court. The principle is, that a failing debtor shall neither make assignments of his effects for his own benefit, nor lock them up beyond the reach of legal process, unless without consideration he obtains a release of all his debts. No slight variation in the terms of the assignment will affect the principle, when the design is evident to defeat a creditor of his resort to the goods, or compel him to release.

The case must be sent to a master to report the extent of the effects which passed into the hands of the assignees, and their present situation, and the amount of the proceeds, if disposed of.

THE OHIO DECISIONS ON THE SUBJECT OF ASSIGNMENTS for the benefit of creditors seem, even before the enactment of any express statute on the subject, to have established a different rule from that of the common law, in reference to the right of the assignor to insert stipulations in the assignment that the assenting creditors must, within a specified time, execute releases of their whole debts or be denied any share of the proceeds. Thus in Repplier v. Orrich, 7 Ohio, pt. 2, p. 246, the court held that an assignment of a debtor's effects for the benefit of such creditors as might come in within one year and agree to take a pro rata share, was invalid. In this state of the law, creditors who pursued their rights by suit in chancery were able to obtain a preference. In order to remedy this inequality the act of 1835 was passed. It enacted "that all assignments of property hereafter made by debtors to trustees, in consideration of insolvency, and with design to secure one class of creditors and defraud others, shall be held to insure to the benefit of all the creditors of the assignor, in proportion to their demands:" 33 Ohio Laws, 13. I

reference to the wording of this statute, Lane, J., in Hull v. Jeffrey, 8 Ohio, 390, said: "There are certain errors, either of transcription or of the press, which affect the interpretation, and which give the phraseology of this sec tion a very awkward appearance. The phrase 'contemplation of insolvency' should probably be substituted for 'consideration of insolvency;' the word 'insure' is a substitute for the word inure,' and the word 'defraud' was probably intended to be 'defer.'" This act does not render the assignment void, but merely provides that it shall inure to the benefit of all the creditors. And in Harshman v. Lowe, 9 Ohio, 92, it was decided that although the intentions of the assignor were fraudulent, the assignment was nevertheless valid, being void only as to the preference created.

The court in that case, referring to the statute under consideration, said: "This interpretation, we think, conforms both to the letter and the spirit of the act." It was also decided in Hull v. Jeffrey, 8 Id. 390, that assignments of property giving preferences to creditors, might still be made in good faith, under proper circumstances, notwithstanding this act of 1835. Lane, J., delivering the opinion of the court in that case, said: "The right to prefer one creditor to another in good faith, has always existed. During the commercial embarrassment a few years since, debtors, in view of insolvency, adopted the plan of assignments to trustees, either to create inconvenient embarrassment upon the pursuit of debts, or to preserve their property from a compulsory sale, or to impose terms upon creditors, or to secure some other profitable result to themselves. Examples of these practices may be found in 5 Ohio, 293; 7 Ohio, pt. 2, p. 246-8. Hence the statute of 1835, the terms of which, as they appear, relate to fraudulent conveyances made to trustees only. It does not affect conveyances made to a creditor, nor a conveyance made without fraud.” And as nothing appeared in the evidence in that case, nor in the terms of the assignment, that showed it to be fraudulent, it was upheld. While the law was in this condition, the legislature passed the act of 1838, the third section of which provided that "all assignments of property in trust, which shall be made by debtors to trustees in contemplation of insolvency, with the design to prefer one or more creditors to the exclusion of others, shall be held to inure to the benefit of all the creditors, in proportion to their respective demands:" Swan's Stat. 717. The operation of this statute is thus stated by Lane, J., in the case of Hull v. Jeffrey: "Before 1835, fraudulent assignments being void, any individual creditor might separately pursue his rights. By the statute of 1835, assignments to trustees were made the subject of equal distribution if fraudulent; but since the statute of 1838, all assignments to trustees, whether fraudulent or not, if made in view of insolvency, are divided among all creditors. Conveyances, other than those made to trustees, are not affected by either statute." In the case of Swift v. Holdridge, 10 Ohio, 230, it was decided, under the statute of 1838, that a fraudulent grantee who had conveyed the property to an innocent purchaser, or had restored it to the owner before the creditors had filed their bill against him, was not liable to them as a trustee. In discussing the liability of such a grantee under those circumstances, Lane, C. J., said: The trust is not express, created by contract; but it arises by operation of law, in consequence of his having in his bands that which ought to be applied to the satisfaction of the creditor's debt. It depends, therefore, on the possession of the property. The character of cestui que trust does not belong to the general creditor, until he has shown himself entitled to the debtor's property by the recovery of a judgAnd if the fraudulent holder has in good faith divested himself of that which he could not retain without dishonesty, before the right of the

ment.

creditor has accrued, there is nothing remaining upon which to raise a trust, and the relation of trustee to anybody subsists no longer." And in Bancroft v. Blizzard, 13 Id. 30, it was decided that an assignment made by a failing debtor to a trustee for the equal benefit of all his creditors, was valid, although the intentions of the assignor were fraudulent. It was held in Wilcor v. Kellogg, 11 Id. 394, that an absolute transfer of property did not come within the provisions of the act of 1835, above referred to. Section 16 of the act of April 6, 1859, is in the following words: "All assignments in trust to a trustee or trustees, made in contemplation of insolvency, with the intent to prefer one or more creditors, shall inure to the equal benefit of all creditors in proportion to the amounts of their respective claims." This is the law now in force: Rev. Stats. of Ohio, 1880, vol. 2, sec. 6343.

ASSIGNMENT FOR BENEFIT OF CREDITORS-PREFERENCE.-Debtor may give a preference to any creditor by his assignment, provided it be done in good faith: Buffum v. Green, 20 Am. Dec. 562; Mackie v. Cairns, 15 Id. 477, and note, 506; Austin v. Bell, 11 Id. 297; Wilkes v. Ferris, 4 Id. 364.

RELEASE-EFFECT OF EXACTING, IN ASSIGNMENT.-In Borden v. Sumner, 16 Am. Dec. 338, a general assignment for the full satisfaction of the claims of certain of the creditors, the residue to be divided pro rata among such creditors as should, within a certain time, release their claims, was held to be invalid as against the dissenting creditors, so far as respected the surplus not wanted to discharge the demands of those who assented. In Austin v. Bell, 11 Id. 297, it was decided that where the assignor reserved a portion of the assets to himself, in case any of the creditors did not assent, the assignment was fraudulent, as tending to hinder, delay, and defraud creditors; but in Lippincott v. Barker, 4 Id. 433, an assignment for the benefit of such creditors as should within four months execute a release of all demands, was held to be valid. See, also, note to that case, p. 445.

NEWMAN v. MCGREGOR.

[5 OHIO, 349.]

ASSUMPSIT MAY BE MAINTAINED FOR THE ACTUAL VALUE of labor done under a special contract which has been waived by the parties or been substantially performed.

AGREEMENT TO PAY IN SPECIFIC ARTICLES becomes, on failure to make such payment at the time and in the manner stipulated, an agreement to pay in money.

WRIT of error to the court of common pleas of Richland county. The plaintiff below declared in the common counts in assumpsit. Issue was taken upon the plea of non assumpsit and a notice of set-off. The other facts are stated in the opinion. Coffinbury, for the plaintiff in error, cited 2 Stark. 251.

By Court, WRIGHT, J. Neither the evidence offered, nor the charge of the court, nor the matter excepted to, is very clearly set forth in the bill of exceptions. It is difficult to discover the real matter in controversy. We think, however, the bill of ex