
    *Oliver N. Bostwick, Edward Kent, and Charles Atwood v. William H. Raymond and Curtis L. Avery.
    Under the 15th section of the chancery practice act of March 14, 1831, as amended by the act of February 25, 1848, it is not sufficient to charge that an insolvent debtor, shortly previous to a suit at law for the recovery of a claim against him, by the petitioner, had sold, transferred, and'disposed of his store of goods, and all of his property, so as to delay and hinder the plaintiff in collecting said claim.
    The statute only applies to cases of sale, transfer, or disposal of property during the pendency of a suit previously commenced.
    
      In chancery.
    Reserved in Richland county.
    The complainants ñled-their bill in chancery September 18,1851,. under the third clause of the first section of the “ act to amend the act directing the mode of proceeding in chancery,” in connection with the 15th section of the act thereby amended.
    Section 15 of the amended act (Swan’s Stat. of 1841, 703,) provides as follows:
    “ When a suit at law for the recovery of money or damages for any cause of action which would survive to or against the personal' representatives of the plaintiff or defendant, or whenever a suit in chancery for the recovery of a specific sum of money or damages, shall be pending, in either of the courts aforesaid, against a nonresident defendant, or against a resident defendant, who has, during the pendency of said suits, either secretly departed out of the jurisdiction of the court, or secreted himself or property within the-same, so that the ordinary process of law can not be served on either, and there should be any person or persons resident within such jurisdiction who is, or are, indebted to, or has in possession goods and chattels, rights, credits, moneys, or effects belonging to. such non-resident or secreting defendant, the said plaintiff at law or complainant in chancery may file a petition against the person so indebted or having in possession the goods and chattels, rights, credits, moneys, or effects of such non-resident or secreting defendant, annexing an affidavit of the truth of the allegations therein contained, and of the amount of the debt or damages by him claimed; and the court may in their discretion enjoin such other person or persons from paying over, conveying away, or secreting such debts by him owing to such non-resident or secreting defendant, or his goods and chattels, rights, credits, moneys, or effects-, until the final judgment at law or decree in chancery can be had in such former cause. And the court on final hearing shall make-such final order or decree between the parties as they shall think just and equitable.”
    *It is provided in the first section of the amendatory act (46 General Laws, 96), that if the plaintiff or complainant in the-pending suit, his agent or attorney “ shall have reason to believe and shall in fact believe ” -.
    . . . “3. That such defendant is about to convey, assign, remove, conceal, or dispose of his property with intent, or so as to defraud, hinder, or delay his creditors, . . . the pendency of such suit, together with the existence of either of the causes above-enumerated, shall entitle the plaintiff or complainant in such suit. to file his bill or petition against the defendant, his debtors, and those having íd their custody any of his property, money, or effects, in the same way as is provided in the 15th section of the act to which this is an amendment.”
    The bill states that the complainants, previous to filing their bill, •and on the same day, had commenced an action of assumpsit against Raymond for $234.56, balance due them upon book-account and two promissory notes made by Raymond, and particularly described.
    The bill further states that said Raymond has been engaged for some time past in the business of merchandising, at Mansfield, in said county, and has had on hand an extensive assortment of goods; “but that he has recently, and within the last few days, sold, assigned, transferred, and disposed of the whole of said stock of goods to one Curtiss L. Avery, of said Richland county,” and whom the bill represents as indebted to Raymond for the purchase price of the goods.
    The bill further charges “ that said Raymond has sold, assigned, transferred, and disposed of said stock of goods so as to delay and •hinder the complainants in the collection of their debt aforesaid;” that he has no other property subject to execution; and that he has refused, upon request, to transfer to them so much of the indebtedness of said Avery for the goods, as would be sufficient to •satisfy their said claim.
    The bill prays that, on final hearing, Avery may be required to pay to complainants, from his indebtedness to Raymond, said amount due from Raymond to complainants; and for general relief.
    Raymond and Avery filed separate answers, and state substantially *the same facts, viz: That on the 15th day of September, 1851, Raymond sold to Avery the goods mentioned for $3,663.62, •of which amount Avery was jp pay $2,359.97 in discharge of spe-r cific mortgage liens upon the goods; and for the remainder of thó purchase money, h.e executed his promissory note of that date, payable to Raymond, for $1,303.65 in twelve months; and that Raymond at the same time indorsed and delivered the note to C. T. & J.. Sherman, attorneys, to be collected, and after paying their charges, to be distributed pro rata among all his creditors.
    
      Geo. W. Geddes, for .complainants, cited Nicholson v. Leavitt,
    
      vol. 1, No. 3, Am. Law Reg. 181; Douglass v. Huston, 6 Ohio, 156; Miers & Coulson v. Zanesville and Maysville Turnpike Co.,. 13 Ohio, 197; Bowry & Sons v. Odell & Brother, 4 Ohio St. 627.
    
      John Sherman, for defendants.
   Sutliff, J.

Depositions taken on the part of defendants corroborate the statement of facts contained in the answers ; and no proof has been taken by complainants to controvert their statements, nor are they even traversed by a replication.

The facts of the case as stated in the answer must therefore be regarded as true. And the case therefore presents the single question : Is the sale and transfer of the goods on the part of Raymond, a case within the statutes mentioned ?

The bill does not charge, nor does the proof show, any fraud in the transaction on the part of Raymond in selling, or on the part of Avery in buying, the goods. The only clause of the statute, therefore, under which such proceeding could be sustained, is the following:

“ That such defendant is about to convey, assign, remove, conceal, or dispose of his property, with intent, or so as to defraud, hinder, or delay his creditors.”

Under this clause of the amendatory statute, the extreme limit to which a creditor could go to charge the particular fund or property, without charging actual fraud, would be, we apprehend, *to state in his bill a case where his debtor is about to dispose of his property so as to hinder and delay his creditor in the collection of his debt.

But this bill by no means shows such a case. Its language is not that Raymond is about to convey or dispose of his property so as to hinder or delay his creditors, but “ that he has recently, and within the last few days, sold, assigned, transferred, and disposed of the whole of said stock of goods,” etc.

It is therefore evident that there is no case made in the bill for relief under the statute; nor is such a case at all shown by the evidence.

The bill must therefore stand dismissed, with costs.

Bartley, C. J., and Swan and Scott, JJ., concurred.

Brinkerhoee, J., having formerly been of counsel in the case, did not sit.  