only means left of intercepting these funds from waste and dissipation, and of securing them for distribution pro rata among creditors.

he is to be paid. But there is no principle of equity which confines these suits to any one class of cases. As society advances, and its methods of business undergo change, equity will adapt its relief to the changed condition of thiugs. This is au old principle of equity. Indeed equity jurisprudence originated in the necessity of applying new remedies to evils previously unknown to the law.

The case we are now dealing with is novel and peculiar; but the present proceeding is as old as equity itself. This is not a bill to set aside a deed. It is true that the dedication of assets which has been mentioned is objectionable in the particulars I have heretofore described; and this bill may be considered as one brought under section 2 of chapter 175 of the Code of Virginia to set it aside, that provision of the Code allowing bills of the sort to be brought by creditors who have not obtained judgment or decree, and have not established specific liens. But while in this view of the case I feel perfectly safe on the score of jurisdiction, I prefer to regard the present bill as a creditors' bill of the kind described by the text writers, Mr. Wait and Mr. Barbour.

The bill in this case is addressed to the condition of things which has been described. It is not a bill such as a creditor usually files in his own interest for setting aside an assignment on the ground that it was made to hinder, delay, and defraud creditors. In almost all the States of the Union a bill for that purpose can only be brought by a creditor who has obtained a judgment or decree for his claim. In such a case the grantee in the deed complained of has a lien by force of his deed, and the courts refuse to allow this deed to be assailed except by a creditor whose claim is equally as well authenticated. This creditor is required to have established a lien, and to show that he is without power to make it good, before assailing the deed of his debtor. His bill is "in execution" of his judgment or deoree. Even such a creditor is not permitted to set aside the deed except upon proof not only that it is fraudulent, but that the grantee had notice of the fraud at the time of receiving it. If he can show these facts, then the creditor, in the decree setting aside the deed, is paid his full claim out of the property fraudulently converted in preference to other creditors. I fully concur in all the propositions of law announced by counsel for defendants in respect to bills of this character brought by individual creditors, in their individual interest, praying relief for themselves indi-jections of jurisdiction similar to those urged in the vidually. As against such creditors the assignment of a debtor is good, whether giving preferences or not, if made bona fide, and if free from provisions from which the law in its policy presumes fraud.

But in the present case the creditor asserts no individual lieu, claims no individual preference, and sues for all creditors. It is a creditors' bill, sometimes called an omnibus bill, being a bill for all. It is not directed at property alone, or property fraudulently appropriated within the purview of the statute of Elizabeth; but it is directed at all the assets of the defendants, as well that existing in the form of tangible property as that in the form of open accounts, notes due, and choses in action generally, for the ingathering of which a receiver is necessary. Mr. Wait, citing abundant authority, says of such a bill:

"It may be asked in what respects a creditors' bill differs from an ordinary bill in equity prosecuted to cancel a covinous conveyance. The answer is that the creditors' bill is broader and more effectual in its operation and results. The ordinary bill in equity is generally brought to unravel some particular transaction and to annul some particular conveyance. A creditors' bill is, on the other hand, usually in the nature of a bill of discovery, and more extended in its results; not only does it reach property described therein, but by means of this remedy every species of assets and even debts due the debtor, of which the creditor knows nothing, may be reached through the instrumentality of a receiver and applied to the claim." Wait Fraud. Conv. 103, 104, and note.

In 2 Barb. Ch. Pr. 149 (a work written under the eye and under the correcting hand of Chancellor Wal. worth, and as useful as authoritative), the author describes a creditors' bill as "a suit brought for the administration of assets, to reach property fraudulently disposed of, etc. The bill in such cases is filed in behalf of the complainant and all others standing in a similar relation, who may come in under such bill, and the decree to de made. It may be filed by simple contract creditors, and does not require a judgment to have been obtained."

It is true that creditors' bills are usually employed to settle up decedent or other estates, and to prevent a multiplicity of suits by creditors, each eager to establish by suit a priority of lien upon the assets out of which

It was such a bill as this that was filed in the case of Finney v. Bennett, 27 Grat. 365. The assets there administered were those of an insolvent bank owing several classes of creditors. The case was decided in Circuit Court by Judge Wingfield, who in answer to ob

case at bar, delivered an opinion which was adopted as its own by the Supreme Court of Appeals of Virginia when the case was taken there. He assimilated the suit to a creditors' bill brought against the estate of a decedent insolvent debtor in the hands of his personal representative. If creditors were left to sue individually, each would obtain a preference, to be paid in full according to the dates of their respective judgments, a few getting their whole debt, many getting nothing at all. The object of the bill was to prevent such a scramble and to secure a pro rata distribution to all. The court said:

*

"But it may be objected there is no precedent for such a case. Concede this. Yet it does not follow that when a case arises which comes within the principles of its Constitution and ordinary jurisdiction, the court ought not to take cognizance of it because it is a new case and not to be found in the reports. * * An eminent recent chancellor of England has declared that 'it is the duty of every court of equity to adapt its practice and course of proceedings, as far as possible, to the existing state of society; and to apply its jurisdiction to all new cases, which from the progress daily making in the affairs of men must certainly arise.' Lord Cottingham (Taylor v. Salmon, 4 Mylue & C. 141."

The Supreme Court of Appeals of Virginia expressed its entire concurrence in this opinion, and adopted it as its own, adding: "What more suitable case could there be for a creditors' bill, aud the application of the rule of equity, that 'equality is equity?' If there be no case directly in point, it is the province of a court of equity to provide suitable and adequate remedy for such a case; "and the court repeated the quotation from Lord Cottingham. It also cited Ogilvie v. Knox Ins. Co., 22 How. 380, in which the United States Supreme Court held that a court of equity may, at the suggestion of creditors that a corporation is insolvent, administer its assets by a receiver, and thus collect all subscriptions or debts due the corporation.

We are not therefore without precedent for the present suit. This is not merely a creditors' bill praying injunction, receiver, and payment of all creditors pro rata, but is, as to complainants, a bill founded upon a particular equity entitling them to a standing in court. The bill would have been the same as many others

with which the courts are every day occupied, if the defendants had done by deed what they are doing without deed. If in the case of a deed the court would have interposed to prevent the acts of defendant, how can it be contended that the mere absence of a deed deprives it of jurisdiction and divests complainants of a redress which a court of equity only can give? It is an old principle that a court of equity will interpose

clause requiring the consideration requiring the consideration to be expressed in writing, was not to destroy or annul the requirement that the writing must contain all the substantial and material terms of the contract. The writing, so far as the same is executory, must still show on its face what the whole agreement is. E. N. Bank v. Kauffman, 93 N. Y. 273, distinguished.

to prevent what it would afterward undo. Roberts APPEAL from order of the General Term, in the

Fraud. Conv. 520. If defendants, by doing without making a deed what equity would undo if a deed had been made, can thereby deprive equity of jurisdiction, then creditors would be at the mercy of fraudulent debtors, and the courts would be set at defiance. Aside from this view, complainants have special equities in this case. They are the largest creditors of defendants. They have no security that if they accept the proposition of compromise, which they are willing to do, its terms will be complied with. Defendants offer, and I presume can give, no security, either in the persons of indorsers or in any other form, that they will fulfill their part of the compromise. Notwithstanding this inability, they are themselves administering the assets which they have dedicated to their creditors, and in a manner necessarily involving waste, and incompatible with the purposes of the trust. They offer, and I presume can give, no bond for properly administering these trust assets. There is but one mode in which complainants can insure the application of these assets to the purposes of the trust imposed upon them, and that is by the intervention of the court through the instrumentality of a receiver and an injunction. This is what they ask. Is not the court bound to give them the security of a responsible and judicial administration of the trust fund?

It is laid down as a general principle that if a trustee becomes insolvent and compounds with his creditors he may be removed; and this is on the ground that the cestui que trust has a right to have the trust administered by responsible trustees. 1 Perry Trusts, § 279. A man who has a common interest with others in a trust fund or trust estate is entitled to sue on behalf of himself and others for the protection of the property by injunction, when the property is in the hands of an insolvent. Kerr Inj., citing Scott v. Becher, 4 Price, 346. When the act complained of would, if done, be irremediable, the court will interfere as a matter of course, and take property out of the hands of irresponsible parties misapplying it. A bill will lie and injunction be granted in the case of a surviving partner who is embarrassed and is misapplying the funds, to restrain him from disposing of the assets. Hartz v. Schrader, 8 Ves. 318. In this case the injunction was given but a receiver refused. In the similar case of Read v. Bowers, 4 Brown Ch. 441, au injunction was granted and a receiver appointed. There was no question of the jurisdiction of equity to interfere in either case.

On the whole I have no doubt of the power of the court to entertain this bill, and to grant the relief for which it prays. I think also there is necessity for the intervention of the court in this matter by granting a preliminary injunction, and by appointing a receiver; and I decree.

STATUTE OF FRAUDS-MEMORANDUM.

NEW YORK COURT OF APPEALS, NOV. 25, 1884.

DRAKE V. Seaman.

The effect of the amendment of the provision of the statute of frauds, declaring certain contracts invalid unless in writing (act of 1863, ch. 464) which struck out the

Second Department, reversing a judgment in favor of plaintiff, entered upon the report of a referee. This action was brought to recover damages for alleged breach of the contract of employment.

Defendants were manufacturers of milk cans, doing business under the name of Iron-Clad Cau Co." In January, 1875, the parties entered into negotiations, which resulted in an oral agreement that plaintiff would enter into defendants' employ as a salesman, and serve in that capacity for three years. Defendant Shepard thereupon wrote the following memorandum, which he gave to plaintiff:

'(Preserve this.)

Memorandum Iron-Clad Can Co. "Two thousand dollars for first year. "Two thousand and five hundred dollars for the second year sure, and provided the increased sales shall warrant it, he is to have $3,000. "Third year in proportion to business as above. IRON-CLAD CAN CO., "H. W. SHEPARD." The plaintiff took the memorandum home, and ou Tuesday following wrote and mailed to the defendants a letter in the following worda:

"UTICA, Jan. 12, 1875. "Iron-Clad Can Co., or H. W. Shepard: "I accept your proposition of the 9th inst., aud will be in New York on Monday next to commence operations.

"JOHN DRAKE."

Plaintiff went to work under the contract, and continued in defendants' employ until about January, 1878, when they refused to employ him or to pay him. Plaintiff tendered his services, and remained ready and willing to perform them during the year.

M. M. Waters, for appellant.
Samuel Hand, for respondents.

FINCH, J. The court below has defeated the plaintiff upon the ground that his cause of action rested upon a contract which, by its terms, was not to be performed within one year, and which was rendered void by the statute of frauds for the waut of a sufficient note or memorandum. That determination is challenged on this appeal, and it is contended on behalf of the appellant that the memorandum was suffi cieut, for the double reason that no integral or material part of the agreement was omitted, but if it was, the omission was only of the consideration, which under the statute no longer needs to be expressed. It will be convenient to consider the last proposition first, since if it is sound it determines this appeal.

Before the Revised Statutes went into effect the consideration of an agreement within the statute of frauds was required to be stated in the memorandum.

In the early case of Wain v. Walters, 5 East, 10, this was put upon the ground of a distinction between the word "agreement" and the word "promise'' as used in the statute; but later upon the proposition that the memorandum should contain within itself all the elements of a complete cause of action without the need of resort to parol evidence. Saunders v. Wakefield, 4 Barn. & Ald. 595. Thereafter the courts in this State admitted and enforced that rule (Sears v. Brink, 3 Johns. 211; Kerr v. Shaw, 13 id. 236), but held the

memorandum sufficient if its language so indicated the consideration that it could be argued out or inferred, and very much of nice criticism and narrow distinction followed as a result. Rogers v. Kneeland, | 10 Wend. 251; 13 id. 114. The Revised Statutes sought to remedy the difficulty by an amendment requiring the consideration to be expressed, but the question whether in each case it was expressed, or what was a sufficient expression, led to renewed and continual litigation. It was soon held that the words "for value received" were enough to satisfy the requirement (Miller v. Cook, 23 N. Y. 495), and in 1863 the Legislature struck out the clause, and restored the section to its old form.

But in all the current of authority in this State pre vious to the final amendment, it was steadily ruled that the memorandum must contain the whole agreement, and all its material terms and conditions, not indeed in detail and with absolute precision, but substantially, and so that one reading the memorandum could understand from that what the agreement really

was.

In Wright v. Weeks, 25 N. Y. 159, which preceded the amendment of 1863 but a few years, that doctrine was declared in very strong terms, and as decidedly settled. But the change of 1863 has given rise to a new question, and bred in the courts a wide difference of opinion.

In Speyers v. Lambert, 6 Abb. (N. S.) 309, the General Term of the Superior Court held that the effect of striking out the clause requiring the consideration to be expressed was not merely to restore the law as it was before the words were inserted; that is to say, that the consideration must appear in the agreement, but might be argued out or inferred from its terms; but to go further than that, and make wholly and entirely unnecessary any statement of the consideration at all. That was said however in a case where the consideration was rendered at the moment in which the contract took effect, so that such contract was executory upon one side only, and not upon both.

material terms of the contract between the parties. It must show on its face what the whole agreement is so far as the same is executory and remains to be performed, and rests upon unfulfilled promise.

Down to the amendment of 1863 no case wandered from that rule, so far as we have been able to discover; and since that date it has been restated and enforced in this court.

In Newbery v. Wall, 65 N. Y. 484, a letter admitting the purchase of goods by the writer from the person to whom it was written was held to be an insufficient note or memoraudum, because it did not "express any consideration or terms of the purchase, ""and it is impossible to say from the contents of the letter what the contract in fact was."

And again in Stone v. Browning, 68 N. Y. 604, Rapallo, J., said of a similar letter admitting the agreement to purchase: "It does not state the price or any of the terms of the contract. These deficiencies cannot be supplied by oral evidence. All the essential parts of the contract must be evidenced by the writing." Now those essential parts cannot be omitted, because in addition to constituting such material elements, they constitute also a consideration of the contract. The agreement of the defendant in this case was not merely to pay so much money to plaintiff. It was to pay him that money for his services as salesman to be thereafter rendered. For what the payment was to be made constituted a material and essential element of the agreement on the part of the defendant; an important condition of the contract on his side. His agreement was not absolute to pay the money. It was conditioned to the rendition of the stipulated services. Any memorandum which omits the condition falsifies the agreement which he actually made, and represents him as agreeing to pay the money absolutely when he did not so contract. It is no answer that the omitted condition, coupled with the other party's promise of performance, constituted a consideration for his own agreement, and so need not be expressed.

If we were to graut that, and follow Speyers v. Lambert to its full extent, it would only justify an omission from the memorandum of plaintiff's promise to perform the services, and not of defendant's condition modifying and limiting and measuring his own promise. As in the cases last cited in our own reports, the agreement was not an absolute agreement to purchase irrespective of price, but to buy at an agreed and

solute agreement to pay so much money, but to pay it upon condition that certain specific services were reudered. And if we conceded that the cousideration might be wholly omitted from the memorandum, it would still be requisite that all the essential and material elements of defendant's own agreement should be stated, and they are not stated where the very condition upon which he is to pay at all is omitted, and the subject-matter of his agreement is absent.

The exact contrary of this construction was held in Castle v. Beardsley, 10 Hun, 343, and the remark of Bingham in his work on Contracts for the Sale of Real Property (363) was cited with approval, that "it is certainly a singular way of construing a statute that has been once amended, and then again amended by striking out the amendment, to mean something different from what it did before it was amended at all." What was said in Evansville National Bank v. Kauff-specified price, so here the agreement was not an ab. man, 93 N. Y. 273, was not intended at all to decide the question upon which the courts have thus differed. The guaranty there was special, and without consideration in fact, and the question now under discussion was not before the court. Very early it was doubted whether the amendment of 1830 at all changed the law (Church v. Brown, 21 N. Y. 331, per Comstock, J.), and it is extremely difficult to answer the logic of the doubt. In that view of the subject neither amendment changed the law, and the presence or absence of the omitted clause was alike immaterial. But if the amendment of 1830 worked any change, it was more than this: that the consideration should no longer be implied from the language of the instrument, but should be expressed in it. Brewster v. Silence, 8 N. Y. 413. And the subsequent omissions of the inserted clause would seem only to indicate a legislative intent not to require a definite expression of consideration, and leave the contract good if one could be implied or inferred from its terms. Reed Stat. Frauds, § 423. But whatever else may be said of the amendment of 1863, we are quite sure that it cannot be understood to destroy and annul the requirement that the note or memorandum must contain all the substantial and

And that brings us to the question whether the memorandum ou its face stated the actual contract which the defendant made; or whether from the memorandum we can determine what the real contract between the parties was. The actual agreement was that the defendant would pay yearly the sums specified in the memorandum for the services of the plaintiff as a salesman, to be rendered for three years, and the inquiry is whether that contract is stated in the memorandum. The writing begins with the words 'preserve this," and continues thus: "The understanding with Mr. Drake is as follows: $2,000 for the first year; $2,500 for the second year sure, and provided the increase sales shall warrant it, he is to have $3,000. Third year in proportion to business as above."