
    James S. Trimble v. James M. Doty.
    Where one of several creditors, by falsely representing to the debtor that his other creditors are about to attach his property, induces the debtor to assign to him all his property, for the pretended security of his claim, but, in fact, to prevent such attachment, and upon a secret promise by the assignee to account for the property, and save the debtor harmless, no action can be maintained by the assignor upon the promise, or to recover damages for the fraud, although, at the time of the assignment, he was solvent, and intended ultimately to pay all his debts.
    Error to the court of common pleas of Morrow county. Reserved in the district court.
    On February 28, 1861, Doty filed a petition against Trimble in the common pleas. In his petition Doty states:
    “1. That in December, 1856, he was, and for some years previous ■to that time had been, carrying on a prosjierous and successful business as a merchant, in Harmony township, in said county, and that, ■.although he was possessed of considerable capital of his own, he did, as was usual among merchants in that region of country, pur- . chase a part of his stock of goods on credit, but by promptness and punctuality in his ^engagements up to the time of the commission of the wrongs by the defendant, hereinafter stated, he had justly acquired credit and confidence among merchants ih the city of New York, which was of great value to him in his said business as a merchant, inasmuch as' he purchased his goods chiefly in said city.
    “ 2. When he first engaged in the business as a merchant, he was induced to purchase an old stock of goods of the defendant, in Mt. Gilead, Ohio, and that by means of this and other dealings with the defendant, he had become indebted to some amount to the defendant, which indebtedness had, at a high rate of interest, ■ or rather usury, ran up to a considerable amount in December, 1856; not exceeding, however, the sum of thirty-five hundred •dollars.
    “ 3. On or about the 25th day of September, 1855, plaintiff gave •to defendant a mortgage to secure said indebtedness to him, on the following real estate in said county, to wit: Lot number 13, in section 2, township 7, range 16, containing one hundred acres, more or less ; also, on the east half of lot number 20, in section 2, in the-township and range aforesaid, containing fifty acres, more or less; which said mortgage was amply sufficient to secure the defendant, in his credit against plaintiff.
    “4. In the fall of the year 1856, plaintiff went to New York city, and after paying off the chief part of his indebtedness there, he purchased a new stock of goods, and in so doing created a new indebtedness to New York merchants, amounting, in the aggregate, to about or not far from fourteen hundred dollars. And with the renewal of his stock of goods he continued, as usual, to carry on his said business as a merchant till about the last of December, 1856, when -he was disturbed and drawn off from his regular and'J profitable prosecution of his said business, by the false representations and subtle fraudulent devices and artifices hereinafter stated.
    “ 5. In the latter part of December, 1856, the defendant came to-the plaintiff, and with strong professions of friendship, and professed desire to protect him from loss or sacrifice of his property; falsely and fraudulently represented to plaintiff, among other-things, that certain rumors had become ^circulated among his creditors in New York city which had alarmed them, and that they were about to be, or would, in a very short time, be upon-him and close him up, or attach his property. That it was rumored"1 among his (plaintiff’s) creditors in New York that he had, in his then recent fall purchases of goods, run in debt seven thousand1dollars;. that he had bought goods not adapted to his trade in-Morrow county, Ohio, and had been smuggling goods off to the-western country. Also, further, that it was rumored among his said creditors that he had procured his credit, in the then recent1 purchases of his goods in New York, on false representations as to-his pecuniary circumstances. That it was rumored among his said-creditors that he had represented that a certain suit then pending-against him in the court of common pleas of Morrow county, Ohio, on a note on which he had become surety for his brother to one • Pinnock, was brought for a claim of only about five hundred dollars, when it was reported to be, in fact, a claim of about eighteen-hundred dollars, with probably one thousand dollars more of interest and costs, and that judgment would likely go against him at the next term of the court, and that this claim would be more than - he would be able to pay; whereas, the said suit in truth and in-fact was brought on a claim for only about five hundred dollars,-1 .and to which plaintiff, Doty, had a bona flde^ and as he believes, and was advised by counsel, a valid defense, on the' ground that the note was given for an unlawful consideration, and therefore void; and also, on the ground that the holder of and principal -obligor in the note had, on a usurious consideration, extended the •credit on the note without the knowledge or consent of the plaintiff, the surety, when without such extension of credit, and by the ■use of due diligence the claim could have been collected from the principal. When the defendant was making these representations, plaintiff informed the defendant that these rumors to his prejudice were wholly false and groundless, and that he could satisfy his creditors in New York that the same were false. To this and similar statements by plaintiff the defendant -repeatedly replied that it would be impossible for the plaintiff to contradict these reports so as to make his creditors ^believe differently, in time to save his property; and that he, the defendant, had private and confidential sources of information through which he had been informed of these reports in relation to plaintiff and of the designs -of plaintiff’s creditors in New York, which confidential information he (defendant) was not at liberty to expose, and that said plaintiff might be assured that his eastern creditors would, in a very short time, attach his property; that some New Yorkers were then in Mt. G-ilead, prying into some things, and that he (defendant) knew, in reason, that they were after plaintiff. And when plaintiff remarked that he had always been treated in a kind and gentlemanly manner by his New York creditors, and that he esteemed one of them, Mr. Bixbye, of New York, as a personal friend, the defendant replied that he (plaintiff) did not understand these New York men; that they would have no mercy on him; .and that as to Bixbye, he would gut him alive. During the making of these false and deceitful representations, the defendant frequently ■spoke of his friendship for plaintiff, and his desire to protect him, •and that he would protect him from loss and sacrifice of his property, if plaintiff would do as he (defendant) wanted him to do in transferring his property over to him.
    ¡ “ 6. The plaintiff, alarmed, deceived, and misled by the false and fraudulent representations made to him, as aforesaid, did, on or about the 29th day of December, A. D. 1856, make, execute, and deliver a mortgage to the defendant on all his real estate, consisting of some two hundred and twenty-three and three-fourths acres, with his wife, Charity Doty’s release of her dower estate therein. And in like manner deceived and imposed upon by the said fraudulent representations and artifices of said defendant, plaintiff, on or about the said 29th day of December, 1856, executed and delivered to defendant a chattel mortgage on all his chattel property on his farm, of the value of about or near twelve .hundred dollars.
    “ 7. That said real estate, so mortgaged to' defendant, was worth from thirty to thirty-five dollars per acre, and was worth far more than any actual indebtedness of plaintiff to defendant. The defendant further proposed to plaintiff, about the *time of giving him said two last-mentioned mortgages, to purchase, at a reduced price, and also to take an assignment, of plaintiff’s stock of goods in his store. But plaintiff, deeming it a matter of duty and honor to secure certain debts for which some of his friends had become responsible for him as surety, declined to either sell or give the defendant such assignment; but, being alarmed and misled by defendant’s said false representations, plaintiff did give chattel mortgages on his store to secure certain preferred debts, and allowed forced sales of said goods, whereby said plaintiff lost heavily.
    “ 8. Sometime after the giving of these mortgages, defendant insisted that it was necessary, in order to accomplish the object contemplated by him, to foreclose the mortgages and buy in the property under a judicial sale; and to effect this, he desired the assent and aid of the plaintiff, and assured him that he should be benefited by it. Accordingly, proceedings were instituted in the court of common pleas of Morrow county by the defendant, and such proceedings were had therein that at the March term of the court, 1857, a judgment was taken by the defendant for the sale of the property so mortgaged to him by plaintiff, both the real and personal, and the said real estate and the chief part of the personal property so mortgaged to said defendant were afterward bought in by him at an amount very far below its real value. When defendant was about to buy in the said property under the judicial sale,' as aforesaid, he repeated to plaintiff his assurances that he would protect him from loss and sacrifice of property, and secure to him an interest therein, besides giving him and his wife, Charity Doty, a homestead in the said real estate more than the law would allow them,' and ev$h more than he (defendant) had previously promised to give-them. And to enable or aid him (defendant) in accomplishing this object, he requested plaintiff to have it made known among his (plaintiff’s) friends that it was his (plaintiff’s) interest to allow defendant to buy in the property as low as possible and without any other bidders. This request of defendant’s was complied with, and. through a misplaced confidence in the sincerity of the defendant, plaintiff and his friends actually made efforts and arrangements to-prevent other persons from bidding on *the said property, at the sale, against defendant. And the defendant, partly at least, through the aid of the plaintiff, did succeed in buying in the said-real estate and chief part of the chattel property so mortgaged to-him, very far below its real and actual value.
    “ 9. And since the said judicial sale of the said property, real and personal, plaintiff has ascertained, and so charges the fact to be, that the said representations of the defendant as to the false rumors stated to have been in circulation among plaintiff’s creditors in New York city, as aforesaid, were wholly false and fabricated by defendant, and known to him at the time he made his said statements to plaintiff to be utterly false.
    “10. At the time of the execution of said mortgage to defendant, in December, 1856, plaintiff was entirely solvent, his entire indebtedness not exceeding six or eight thousand dollars, and owning at that time a property, real and personal, worth, at a fair valuation, from thirteen to fourteen thousand dollars. And at that time he had no expectation of a failure in his pecuniary responsibility, but considered himself abundantly able and intended in good faith to pay all his debts; and fully expected that, after so doing, he would have a considerable property left. And at the time said mortgages were given, in December, 1856, and also at the time the property was bought in by the defendant at a judicial sale, as aforesaid, plaintiff had no intention of hindering or defrauding his-creditors, but simply designed and desired to protect his property from a sacrifice which might be occasioned unjustly and unfairly by means of said supposed false rumors among his creditors, and in-order to make his property go as far as practicable in enabling him; to discharge his liabilities, aixd to save all he could lawfully and propei’ly for himself. And before the plaintiff had been inveigled by the fraudulent devices of defendaxxt, as aforesaid, and duped into-•giving the mortgages, as aforesaid,* in December, 1856, his creditors had shown no disposition to hax’ass or press him for payment. And had he beexx undisturbed in his business by defendant’s frauduleixt •contrivances and artifices, aforesaid, he could have met his liabilities-as promptly and carried on his business as well as *merchants generally were enabled to do in this region of country at that time.
    “11. And the defendant having got the plaintiff’s property into his hands by the fraudulent practices aforesaid, set up the claim that the same was his own, absolutely and wholly repudiated his promises to protect plaintiff’s property from loss and sacrifice, and even denied having made the same, and denied plaintiff all interest whatever in said property, both real and personal, so bought in by him; and even denied his promise to give and set off to plaintiff and his said wife a homestead in said real estate, as aforesaid.
    “12. By means of'the false pretenses and representations of defendant aforesaid, and his said fraudulent devices and practices, plaintiff has been wholly ruined in his business as a merchant, and broken up and impoverished; a large amount of his debts left unpaid; and the defendant in the possession and enjoyment of his. property to a large amount, for a consideration little, if any, more-than half its actual value.
    “Plaintiff prays the judgment of the court setting aside the said mortgages given by him and his wife to defendant, on the 29th day of December, a. d. 1856; also, the chattel mortgage given defendant, as aforesaid; also, setting aside the said judicial sale to defendant, of the property, both real and personal; and that the defendant, may be compelled to account for the rents and profits of the said real estate since he has been in possession thereof; that he may be compelled to account for the full value of all the personal property which he has acquired by said chattel mortgage and sale; and plaintiff prays for the judgment of the court for damages against defendant to the full extent to which he has been injured by th& aforesaid fraudulent devices and acts of the defendant, in his property and business, amounting to six thousand dollars, and the expenses and losses to which he has been thereby subjected, amounting to four thousand dollars. And plaintiff prays for such other and further and different relief in the premises as law and equity may require.”
    The answer to this petition denies all fraud and misrepresentations therein charged, and claims that the mortgages, and the proceedings and sales thereunder, were in conformity *to law, and legally and equitably binding upon the plaintiff. The answer also denies that the defendant made any promises to protect the plaintiff from loss, or to secure him any of the property or its proceeds, or to hold it or dispose of it in any wise for his benefit.
    The case was submitted to a jury upon these issues, and a verdict was rendered for the plaintiff below, for the sum of $3,750 damages. The defendant moved the court for a judgment in his favor, .notwithstanding the verdict. The court overruled this motion, and rendered a judgment for the plaintiff upon the verdict.
    To reverse this judgment a petition in error was filed in the district court by Trimble, and reserved for decision here.
    The error assigned is, that the court overruled the motion, and refused to render a judgment for the plaintiff in error.
    
      M. G. Hurd and A. K. Dunn, for plaintiff in error :
    1. The agreement set forth in the petition was fraudulent on the part of both plaintiff and defendant, and a breach of it by either would afford no ground for an action by the other. Goudy v. Gebbart, 1 Ohio St. 262; Randall v. Howard, 2 Black U. S. 585; Dickson v. Rawson, 5 Ohio St. 224; Hoffman, Burneston & Co. v. Mackall et al., 5 Ohio St. 135.
    2. The parties are in pari delicto, as well as particeps fraudis, and in such cases neither can maintain an action against the other upon the contract, or for any consequences resulting from it, though it proceeds upon a repudiation of the contract. Robeson v. French, 13 Met. 24; S. & C. Stat. 429, see. 12; 1 Story Eq., sec. 61; Randall v. Howard, 2 Black U. S. 585; Holman v. Johnson, Cowp. 341; Browning v. Morris, Cowp. 792; Roll v. Raguet, 4 Ohio, 419 ; 7 Ohio, 76 ; Moore v. Adams & Newkirk, 8 Ohio, 372 ; 2 Kent, 366; 2 Stark. Ev. 87; Broom’s Legal Maxims, 645; Simpson v. Bloss, 7 Taunt. 246 ; 2 E. C. L. 89; Fivaz v. Nicholls, 2 Man. Gr. & Sc. 501; 52 E. C. L. 500 ; Gregg v. Wyman, 4 Cush. 322.
    3. The plaintiff’s protestation of honesty does not exculpate *him. The necessary and obvious effect ofisuch an arrangement as is averred in his petition, as well as the avowed object of it, •so far, was to hinder, delay, and defraud the plaintiff’s creditors. And he must be presumed to have intended that effect. 1 Greenl. Ev., sec. 18; Regina v. Hill, 8 C. & P. 274; 34 E. C. L. 388; Mazagora’s Case, Russ. & Ry. 291; Regina v. Beard, 1 C. & P. 143 ; The King v. Shipley, 4 Doug. 73; Haine v. Wilson, 9 Barn. & Cress. 643; Gibson v. Lane, 4 Florida, 217; Buck v. Sherman, 2 Doug. 176; Green v. Irieber, 3 Md. 11; Dickson v. Rawson, 5 Ohio St. 223.
    Upon the whole, then, we think the original petition shows a defectie case, and not simply a case defectively stated; that it “does not state facts sufficient to constitute a cause of action,” and that the court below erred in rendering judgment for the plaintiff, when, by the pleadings, the defendant was, by law, entitled to judgment in his favor. Code, see. 384; S. & C. 1054.
    
      T. W. Bartley, for defendant in error:
    The original action was for damages for fraud practiced by Trimble upon Doty. In the present status of the case, the defense set up in the answer must be taken as untrue, and each and every .allegation of the petition taken as true. The question now is, whether the facts stated in the petition, taken as true, constitute a ■sufficient cause of action for a recovery in damages.
    1. The petition shows that Doty had no intention to hinder or ■defraud his creditors, but simply desired and designed, by the transaction, to protect his property, for the benefit of his creditors, as well as for his own benefit, from a sacrifice which might be urgently and unfairly caused by supposed and false rumors, until he had time to explain and repel them. Doty did not engage in Trimble’s nefarious scheme of fraud for the purpose of cheating and defrauding his creditors. And it is not now to be denied that Doty had, at the time, property sufficient to pay all his debts, and that he intended to pay them, in good faith; and that he would have done so, had he not been misled by Trimble.
    2. Trimble deceived Doty by false representations that his ^creditors were about to attach his property. To protect it from sacrifice, in consequence of supposed slanderous reports, Doty •consented to accept Trimble’s proffered protection and assistance, but without any intent to hinder or defraud his creditors.
    If he had been under serious apprehehsions of a loss of property from theft or robbery, or some insidious swindle, and to protect himself had entrusted his property to Trimble’s charge, and Trimble had proved false to his trust, and by embezzlement had cheated him out of his property, his creditors would have' lost, but they ■could not have charged Doty with fraud. Doty does not stand upon any different principle in this ease, when he is admitted to be clear of any fraudulent intent against his creditors. The fact that the supposed wrong from which Doty was seeking to protect himself was apprehended from a resort to the process of attachment, can not alter the case. Legal process is sometimes resorted to unnecessarily, and in order to accomplish the purposes of malice and wrong. The person upon whom this wrong is attempted, when clear of all fraudulent intent, may certainly be allowed to protect himself from loss and sacrifice of property, until time and opportunity are afforded to enable truth and justice to assert their supremacy. It does not follow, therefore, that Doty’s act was unlawful or criminal, if he did contemplate evading, for a time, the process of attachment supposed to be about to be used, suddenly and maliciously, to his great injury, when he was clear of all fraudulent intent against his creditors. But the contemplated sudden seizure-of Doty’s property, in attachment, which caused his alarm, was not real—a mere false pretense. Had it been real, however, when clear of any fraudulent intent, it was not unlawful for him to seek protection from unjust and improper sacrifice and loss of property. Barr v. Hatch et al., 3 Ohio, 532; Hendrick v. Robinson, 2 Johns. Ch. 283; Mills v. Franklin, 1 Binn. 513; Hoffman et al. v. Mackall et al., 5 Ohio St. 125. The intent is the test of the transaction on the part of Doty. Dickson v. Rawson, 5 Ohio St. 218.
    3. The trust in Trimble was to save Doty’s property from supposed danger of loss and sacrifice for the benefit of all his creditors, as well as for himself. The principle that an assignment *for the benefit of particular creditors, reserving a benefit to the assignor before all his creditors are paid, is fraudulent and void, can have no application to this case.
    4. If Doty, clear of all fraudulent intent against his creditors, as-he is shown to have been, had been duped by Trimble into a transaction which was, even by construction of law, liable to be set aside at the instance of his creditors, in a court of equity, still he was-not, and could not have been, in pari delicto with Trimble, for Trimble’s fraud was intentional—fraud de facto, and not merely by construction of law—a fraud against Doty himself rather than his creditors.
    The cases cited on the other side, where courts have refused to enforce the performance of contracts or to relieve against contracts, fraudulent as to creditors, when both of the parties have boon guilty of a fraudulent intent, clearly have no application to this case upon the facts as established and admitted.
    
      5. In his answer Trimble denies all fraud charged against him in the petition. The fraud therein charged against him is a fraud upon Doty. If, however, the petition be construed as showing a eollusion between Doty and Trimble to defraud creditors, and is held defective in that regard, yet Trimble ought not now to be allowed to set up a fraud which he has denied in his answer as a ground for judgment in his favor. Phil. Ev. 169-171; 2 Smith’s Lead. Cas. 687; Stephen Pl. 255; Wills v. Kane, 2 Grant’s Cas. (Pa.), 60; Carlisle v. Foster, 10 Ohio St. 198.
    6. In all cases of fraud, where damage results, the action will lie. 1 East, 318; 1 Campb. N. P. 277; Paisley v. Freeman, 3 Term, 51; Haycroft v. Creasy, 2 East, 92; Tapp v. Lee, 3 Bos. & Pul. 367; Harner v. Alexander, 5 Id. 241; Wise v. Wilcox, 1 Day’s Cas. 22; Upton v. Vail, 6 Johns. 181; Barney v. Dewey, 13 Id. 238; Benton v. Pratt, 2 Wend. 385; Mitchell v. Zimmerman, 4 Texas, 75; 7 Johns. Ch. 200; Bartholomew v. Bentley et al., 15 Ohio, 666.
   Welch, J.

Under the code of civil procedure (sec. 384), judgment must be entered for the defendant, notwithstanding the verdict against him, if the plaintiff’s petition does not set *forth a good cause of action; and the objection to the petition may be taken on error, as well as by motion in arrest, or by demurrer. Whether, then, the petition in the original case sets forth substantially a good cause of action, is the only question now to be decided.

The petition is bad in form. It seeks both to affirm a contract and to set it aside. The injured party to a fraudulent contract must elect either to rescind it as void, and be restored to his former rights, or to affirm and enforce it by the recovery of damages for its breach, or by specific execution. He can not do both. But it is too late now to raise this objection. After a verdict and judgment for damages, it should be presumed, in support of them, that the plaintiff at the trial abandoned his prayer for a rescission, and elected to proceed upon his case for damages alone. The petition, therefore, must now be considered merely as a petition for damages, resulting from fraudulent representation and from breach of contract. Viewed in this light, the petition makes an undeniable and aggravated case against the defendant. As between the parties, and aside from questions of public policy, the plaintiff’s right to recover is not denied ; but it is denied upon the ground that his action is for the enforcement of a contract made by Mm to defraud Ms creditors, and! comes witMn the rule, ex terpi causa non oritur actio.

That a contract of assignment made with intent to hinder, delay,, or defraud creditors, although void as to the creditors is valid between the parties, is well-settled law in Ohio. It is equally well settled, however, that courts of justice will aid neither party to enforce or to avoid the contract, where it constitutes a necessary part of the case or defense relied upon. The rule, briefly stated, is,, that parties are estopped from pleading their own iniquity; and the reason that underlies this rule is, that public good requires its adoption. It may, and generally does, work injustice in the particular case, but the partial evil is more than compensated by the' general good. It is simply a choice of evils by the court. Better that one fraudulent party should suffer the consequences of his own folly, although unjustly as between him and his accomplice in guilt, than that public morals should be outraged *by an apparent sanction of fraud. Justice, too, will be better subserved by preventing fraud against many innocent parties, than it will be by redressing the wrongs of a single party to a fraud.

If I understand counsel for defendant in error, however, this principle of law is not directly denied. He places the defendant’s' case, at least mainly, upon the ground than the petition shows no' intention to defraud creditors, and he has maintained this view of the case by an elaborate argument, and with much ingenuity and ability. The argument is, that the petition expressly asserts tho absence of any such intention, and alleges that Doty ■11 intended honestly to pay all his debts.” If this allegation stood alone, the argument would be unanswerable. But the petition contains another allegation on the subject of intention, and both must be construed together. That other allegation, in substance, is, that the purpose of the assignment was to prevent a “ sacrifice ” of the petitioner’s property. A “sacrifice” by whom? By his creditors. And how? In the use of remedies provided by law. To prevent this so-called “sacrifice” by legal process, was admittedly the paramount, nay, the sole motive. Construed together, then, what do these allegations mean? They plainly mean that Doty intended to deprive his creditors of all their legal remedies, but ultimately, and in his own good time, and if he should then be able, to satisfy their demands. That is, he intended to “ hinder ” and “ delay ” his creditors for a time, and then to pay them—provided a fraudulent accomplice: would consent. He intended to withdraw from his creditors and! the law, where they belong, all questions as to times and places and modes of satisfaction of his debts, and to reserve their decision for himself and a confidential friend. This was nothing more nor less than an intention to hinder and delay, and therefore to defraud creditors. The intention ultimately to pay does not make it otherwise. It varies the degree of the fraud, but not the fact of fraud. The creditor has a right, as well to the remedies secured by the law, by which he can choose his own means and times of payment, as to the ultimate payment of the debt itself; and he has a right to be a *party to any arrangement by which those remedies are to be suspended or taken away.

Counsel lay much stress on the fact that Doty was deceived. He made the assignment under a mistaken belief that his creditors were about to resort to legal process. How does that vary the case ? The argument seems to be, that if the information had been correct, then he would have been justified in making the assignment. Such is not the case. The law requires a party to be honest at all times, and under evil as well as good report. If a party should part with his property, as counsel have argued, to save it from an apprehended robbery, or other calamity of the kind, no doubt he would be justified. But the trouble here is, that the “robbery” apprehended was the robbery of the law. The debtor has no right thus to hinder and delay any of his creditors; not even his vigilant and unscrupulous creditors. It is no more a fraud to make such assignment, with the knowledge common to all debtors, that their creditors may resort to their legal remedies, than it is to make it upon information that they intend so to do. Nor can it be perceived why it should make any difference, whether the representation relied upon is true or false ; whether it comes from the assignee, or a third person, or whether it is made fraudulently or in good faith. We have the same result in either case—an intent to hinder and delay creditors. This was the intent of Doty, if his case is stated correctly in the petition. He made th e assignment, if he is to be credited, in the honest belief, that if his creditors were unhindered and undelayed in the exercise of their legal rights, he would be a “ ruined man; ” and his admitted purpose was to interpose the necessary hindrance and delay, to save himself from ruin. No other motive is assigned, or can be assigned. If he had other and ulterior objects in view, which, in themselves were lawful, they were embodied in, and were to flow out of this immediate and unlawful purpose of hindering and delaying his creditors. It he intended to hinder and delay his creditors, that is enough to make the act fraudulent, however honest he might intend to be in future, in controlling the consequences of his act. The law requires him to be honest in the present, as well as in. the future. To say, *in such a case, that there was no intention to defraud creditors, would be to open the door to all such assignments, and to allow the guilty party to escape by a mere mental reservation. As well might you allow the thief or the forger to rebut the criminal intent, and escape by showing an intention, some day, to make reparation. You can not block up a creditor’s road, with intent to prevent his travel upon it, and then prove that you did not mean to hinder and delay him, because, forsooth, you have in reserve for him something which you deem better than traveling. That is a matter of which he must be the judge, and not you.

Counsel insist that this was an assignment made for the benefit of creditors, and not to defraud them. If so, why was it not put in the form, of such an assignment? Why give it the form of an absolute assignment to Trimble, for his benefit alone ? Why make the actual trust, upon which he was to hold the property, a secret trust? And why make the debtor alone, and not the creditors, the beneficiary? In the writings, and in the secret verbal agreement, the names of the creditors are unmentioned, and their interests wholly unprovided for. These are the usual badges of a fraudulent transaction. If the assignment was in fact made for the benefit of creditors, they can yet enforce the trust. If not made for their benefit, they can set it aside, whatever may be the result of the present ■case. Therefore, there is no danger of the alleged object of the trust, the benefiting of creditors, being defeated. When the creditors •come forward, we will lend a willing ear to their complaints of fraud. They can set up the fraud without criminating themselves. Doty and Trimble can not. But we hear nothing from the creditors. If Doty was acting for their benefit, he had only to inform them.of the fraud—the double fraud—and have them, instead of himself, seek to set the transaction aside. But instead of this, he remains a reputed insolvent for years, and after the storm with his creditors has blown over, resulting, it may be, in the outlawry, release, or composition of their claims, he seeks, by an action in ■bis own name, to pocket the funds that should have gone to the payment of his debts; and the ground upon which *he places his suit is, that he was guilty of only a single fraud, while ‘Trimble was guilty of a double fraud. •

But counsel contend that Trimble is estopped from setting up the fraud against creditors, because he denies “all fraud” in his ^answer. I think the denial should be referred to the fraud against Doty—the fraud upon which the action is based—and not to the fraud against creditors, which goes to defeat the action. But this is immaterial; for if Trimble is not estopped by his answer, he is -certainly estopped. Neither party can successfully set up his own fraud. Trimble’s mouth is closed, as well as that of Doty. It is •the law, and not Trimble, that sets up the fraud against creditors. And the law sets it up, not for the benefit of a party, but for the benefit of the public. Neither party can found his case or his defense upon his own fraud, or upon any chain of facts, one link in which consists of his own fraud; and whenever it is so set up, the law will seize upon the fraudulent act to defeat the case or defense.

We think the petition in the original case does not set forth a good cause of action, and that the court below erred in overruling .the motion for judgment notwithstanding the verdict.

Judgment reversed.

Drinkerhoee, C. J., and Scott, Day, and White, JJ., concurred*  