The facts relied upon as a defence to this action do not show any legal contract so far consummated by the parties as to discharge the liability of the defendant upon his note. It was a proposition by the defendant, assented to by the agent of the company, that he might cancel his policy, paying a pro rata premium, and thereupon receive back his note. If this had been done, of course the note would have been discharged. But the right of the defendant to carry into effect this proposition was one to be exercised while the assets of the company were wholly under the control of the company and its agents; and before anything was done to give effect to the proposed arrangement, the right of creditors to the company’s funds intervened, and by an injunction all their property was seized and held for the benefit of their creditors. This note very properly is claimed to be held as a part of the assets of the company, to be applied in payment of their liabilities.

Exceptions overruled