
    WILLOUGHBY, Respondent, v. REYNOLDS, Appellant.
    [Submitted April 12, 1897.
    Decided April 26, 1897.]
    
      Assignment for Benefit of Creditors — Power of Sale — Validity.
    
    An assignment for tlie benefit of creditors which provides that the assignee may sell “for cash or credit,” is void as to attacking creditors.
    
      Appeal from District Court, Silver Bow County. William 0. Speer, Judge.
    
    Action by W. A. Willoughby, assignee of Luciano Guerra, against S. J. Reynolds, sheriff of Silver Bow county. Judgment for plaintiff. Defendant appeals.
    Reversed.
    Statement of the case by the justice delivering the opinion.
    This is an action to recover possession of personal property. It appears that on the 28th day of June, 1895, Luciano Guerra made an assignment of his stock of goods arid merchandise by deed of assignment to the plaintiff for the benefit of his creditors. Plaintiff immediately took possession of the stock of goods as such assignee. On the following day the defendant, who was the sheriff of Silver Bow county, levied upon and took possession of said stock of goods under a writ of attachment issued out of the district court of said county in a suit wherein P. J. Brophy was plaintiff and said Guerra was defendant.' On the same day plaintiff brought this suit, and replevied the goods.
    The answer of defendant admits the assignment and taking by him of the goods under the writ of attachment, and alleges the assignment to be void for the reason that the deed contains a provision allowing the assignee ‘ ‘to sell and dispose of the said personal estate, and to collect the said choses in action, using a reasonable discretion as to the times and modes of selling and disposing of said estate, as it respects making sales for cash or on credit. ’ ’ There was no replication.
    The case was tried without a jury on an agreed statement of facts. Judgment for plaintiff was rendered by the court. Defendant appeals.
    
      John Lindsay and Clinton da Lamb, for appellant.
   Pemberton, C. J.

Rosenstein v. Colemcm, 18 Mont. 459, 45 Pac. 1081, decided by this court on the 4th day of August, 1895, involves the same question presented here, and is decisive of this case. In that case we held that such a deed of assignment was void.

Upon the authority of that decision the judgment in this case is reversed, and the cause remanded, with direction to the district court to render judgment for the defendant.

Reversed.

Hunt and Buck, JJ., concur.  