author: Bailey P. J.

text:
    Commercial National Bank of Chicago v. Manufacturers Equitable Association, use, etc.
    Garnishment—Corporation—Alleged trust eund.—Where a suit in attachment was brought against an association and a bank was summoned as garnishee, and it was insisted that the money in the bank was a trust fund, the equitable ownership of which was in the members of the association in proportion to their respective rights, and therefore that it should not be applied to the satisfaction of a judgment against the association in favor of one of its members, held, that since in a suit at law by the association against the bank to recover the amount of said deposit none of the equitable matters attemped to be set up in the garnishee’s answer could have been pleaded in defense, they are not available in this proceeding.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Opinion filed July 28, 1886.
    Messrs. Sleeper & Whiton, for appellant;
    that under garnishee proceedings, equitable attachment or creditor’s bill, a party can not reach or have applied to payment against his debt or demand against his debtor, money or property which his debtor holds in trust for him, or for him and others or wholly for other parties, cited Waples’ Attachment and Garnishment, 197,199; Chapin v. Connecticut River R. R. Co., 16 Gray, 69; Gould v. Newbury port R. R. Co., 14 Gray, 472; Meadowcroft v. Agnew, 89 Ill. 469 ;.Robinson v. Lester, 83 Ill. 55; Willard v. Sturtevant, 7 Pick. 18; Providence County Bank v. Benson, 24 Pick. 204.
    Messrs. Dupee, Judah & Willard, for appellee;
    that the defense set up is not available to a garnishee, or in a court of law, cited C. & St. L. R. R. Co. v. Holbrook, 92 Ill. 297; Hopkins v. Medley, 99 Ill. 509 ; Merrick v. Peru Coal Co., 61 Ill. 472; Kelderhouse v. Hall, Chicago Legal News, Jan. 30, 1886.
   Bailey P. J.

In this, case, the Iowa Barb Steel Wire Company commenced a suit by attachment, in the Superior Court of Cook county, against the Manufacturers’ Equitable Association, a corporation organized under the laws of this Stare, to recover an indebtedness of $9,452.47, and caused the Commercial National Bank of Chicago to be summoned as gar'nisliee. A judgment was afterward entered by default, on personal service, against said association, for the amount of said indebtedness, and the answer of the garnishee disclosing that said association was a depositor and had an account with the garnishee as a banker, upon which there was a credit balance of $1,107.36, a judgment was entered in favor of said association, for the use of said wire company, against the garnishee, for that sum, and the garnishee brings the record to this court by appeal.

It can not be doubted that the admission of indebtedness in the answer is sufficient to charge the bank as garnishee, and the burden is thus thrown on the bank to show sufficient facts to discharge itself. McCoy v. Williams, 1 Gilm. 584; Wright v. Ford, 5 N. H. 178. The only question in the case is whether it has succeeded in doing so.

By way of attempting to show that the money in its hands belonging to the association should not be subjected to the payment of said judgment, the answer alleges in substance, that said association is a corporation composed of the various individuals, firms and corporations engaged in the manufacture and sale of barbed wire under licenses from the patentees, said wire company being one of such members, and that the object of said association, as expressed in its certificate of organization, is the equitable distribution of funds arising from the manufacture and sale of the products made by its members, and for purchasing of rights under letters patent; that by agree-i ment between the members of said association, it was provided that each member should .pay into its treasury each month one and one half cents per pound for all the wire sold by them respectively, and that the money so paid should he distributed back to the members, less the operating expenses of the association, in proportion to the number of tons per year which their several licenses permitted them to manufacture and sell. It is further alleged that the moneys in the bank to the credit of the association, are a portion of the moneys paid to it by its members under said agreement; and appended to the answer is a statement showing the condition of the accounts between the association and its several members under the agreement, from which it appears that there was a credit balance in favor of said wire company of $9,452.47, and the record shows that it was for that balance that the judgment above mentioned in favor of said wire company was rendered. It is insisted that the money in the bank is a trust fund, the equitable ownership of which is in the members of the association in proportion to their respective rights, and that for that reason it should not be applied to the satisfaction of a judgment against the association in favor of one of its members.

We do not deem it necessary to attempt to define the exact legal relation shown by the garnishee’s answer to exist between said association and its members, or the precise character im which the association undertook to receive from its members, their several contributions and distribute them back upon the-basis fixed by their contract. Admitting that it was a mere' trustee for that purpose, we see no ground for holding that the bank had any responsibility in relation to the distribution of said funds, or any power to set up the equitable rights of the other members to defeat the efforts of the wire company to compel the application of the money in the bank to the payment of its distributive share of the funds in the hands of the association. The legal title to said money, at the time of the service of the garnishee writ, was doubtless in the association, and the bank was a mere custodian for the association and held the money subject to its order, and was in no way responsible to the members for any use to which the association might see fit to apply it. Had the association presented its check for the money, the bank could not have refused to pay it on the ground that the money equitably belonged to the various members of the association in certain proportions. Had it brought its suit against the bank to recover said money, the bank could not have defended on any such ground. The answer contains no averment that the association was not in possession of assets and resources sufficient to pay the shares of all the members in full, as well as all its other just debts and obligations, and in the absence of an averment of that character it will be presumed that it had all the resources necessary for that purpose. We see no reason, then, why the association had not full legal and equitable power and discretion to apply the small sum of money then deposited in the bank to the liquidation of anyone of its legal liabilities. It was at liberty to apply that particular fund to the payment of the balance due the Wire Company, and neither the other members nor the bank had any right to object to its doing so. If, then, it were admissible for a garnishee, under our statute, to avail himself, in defense, of the equitable rights of other parties not before the court, the answer fails to disclose any equitable rights in any person, which stand in the way of an application of the fund in question to the payment of the judgment in favor of the Wire Company.

But under our statute, garnishment is a proceeding at law. It has most, if not all the incidents of a suit at law brought by the principal debtor for the use of the attaching creditor, against the garnishee, and the defenses which may be interposed by the garnishee are the same which could have been set up by the garnishee, if the action had been brought in that form. May v. Baker, 15 Ill. 90 ; Webster v. Steele, 75 Id. 544. In Waples on Attachment, 199, the rule is laid down that funds held in trust are subject to the process of garnishment, if the relation of the defendant to them is such that he may recover possession of them as his own at will. In McLaughlin v. Swann, 18 How. 217, it is held that an attachment invests the plaintiff with the same rights of action which belonged to the principal defendant, and no defense which could not be made at law by such defendant can be made to the attachment, which is a substituted mode of pursuing the same right. The court say : A garnishee should stand as nearly as possible in the same position he would have occupied if sued at law by his creditor; and if he, or any third person, has equitable rights to the fund in his hands, they should be asserted in that jurisdiction which alone can suitably examine and completely protect them.”

It is clear that in a suit at law by the association against the bank to recover the amount of said deposit, none of the equitable matters attempted to be set up in the garnishee’s answer could have been pleaded in defense. For the same reason they are not available here. It follows that the bank failed to set up matters sufficient to discharge itself from liability as garnishee, and that judgment was properly rendered against it for the amount of said deposit. The judgment will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Bailey, P. J.

license: Public Domain

text:
    Public Grain and Stock Exchange et al. v. Julian Kune.
    1. Check not indorsed—Equities.—Where a check is not indorsed by the drawee, the party to whom it is given does not occupy the position of a bona fide holder for value, but the check is open to all defenses and equities.
    2. Same—Fraudulent representations—Notice to bank.—A bill in chancery brought by complainant against defendants, his son, the bank and the stock exchange, praying that a certain check for §500, drawn by complainant upon said bank payable to the order of the son, and alleged to have been obtained by fraudulent representations and without consideration, be declared null and void and ordered to be canceled. The check was delivered by the son to the stock exchange without indorsement, as a margin to protect a deal in stocks, but on the same day and before the check had been presented for payment at the bank, the son notified the bank not to pay it. The officers of the bank, however, said that they could not refuse payment without notice from the complainant, the drawer, and thereupon certified the check. Held, that the finding of the court below that the check was obtained from complainant by fraudulent representations and without consideration was sustained by the evidence; that the bank was duly notified not to pay or certify the check before it was presented for certification; that the decree that said check was null and void and that it be canceled, and that said bank place to complainant’s credit the amount of the check, was proper.

      3. Same—Bank’s negligence.—The bank can not complain that while the decree requires it to place the amount of the check to the complainant’s credit, it fails to protect the bank against the possibility of future litigation by requiring a surrender and actual cancellation of the check. In a suit in which the bank was praying no relief, the court was not bound to protect it against the consequences of its own negligence.
    Appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    Opinion filed July 28, 1886.
    Mr. Orville Peckham and Mr. A. B. Jenks, for appellants;
    that payment of checks can not be stopped in Illinois even by the drawer, as against a bona fide holder for value, cited Un. Nat. Bk. v. Oceana Co. Bk., 80 Ill. 212.
    A certified bank check is the negotiable obligation of the bank which certified it: 2 Daniel on Negotiable Instruments, 3d Ed., § 1603; Bickford v. First Nat. Bk., 42 Ill. 238.
    Messrs. Beck & Charlton, for appellee;
    that the fact that the check was never indorsed by the payee destroys its commercial quality, cited Garfield v. Berry, 5 Bradwell, 355; Roosa v. Crist, 17 Ill. 450.
   Bailey, P. J.

This was a bill in chancery brought by Julian Kune against the Public Grain and Stock Exchange, the First National Bank of Chicago and Fred G. Kune, praying that a certain check for 8500, drawn by the complainant upon said bank, payable to the order of Fred G. Kune and by him delivered to said Grain and Stock Exchange, he declared null and void and ordered to be canee1 ed. It appears that said Public Grain and Stock Exchange was a corporation engaged in the business of buying and selling grain, provisions, stocks, bonds, etc., and that in June and July, 1885, Fred G. Kune, who is a son of the complainant, was engaged in the business of buying and selling stocks in the city of Chicago, several of said transactions being with said Exchange, such transactions being carried on by said Fred G. Kune in his own name, but really as the agent and broker of one Lamphere, of Detroit, Michigan. At that time Julian Kune & Oo., a firm consisting of the complainant and one Boenert, had in their hands certain money of said Lamphere, and prior to July 4, 1885, that firm advanced money on Lamphere’s order to be deposited by Fred Gf. Kune as margins upon said contracts, and the moneys realized from said transactions were turned over to said firm. On the 4th day of July, 1885, an arrangement was made between Lamphere and said firm by which it was agreed that to enable Fred Gr. Kune to carry on further dealings in stocks for Lamphere, said firm should deposit $2,500 of Lamphere’s money in some bank to the credit of the complainant, and that said money should be drawn as needed by Fred Gr. Kune in carrying on his dealings for Lamphere upon checks to be signed by the complainant. In pursuance of this arrangement various sums of Lamphere’s money, amounting to about $2,500, were deposited by said firm in the First Kational Bank of Chicago, to the complainant’s credit.

After several checks had been drawn upon said fund, Fred Gr. Kune met the complainant, and told him that he needed $1,000 to be used as a margin and asked the complainant for that amount in two checks of $500 each. The complainant thereupon drew two checks as requested and delivered them to Fred Gr. Kune. Several days afterward the complainant learned from Fred G. Kune that he had not had occasion to use said checks, but had them still in his possession, and thereupon the complainant upbraided him for keeping said checks, telling him that he ought not to be carrying said cheeks around. Fred G. Kune explained that, as the market did not go against him as he expected, he did not have to use the checks, but thought he would keep them with him, so that in ease of a fluctuation in the market he would have them at hand. The complainant then told him that he would give him other checks when he needed them, but that he must destroy those. Fred G. Kune then said that he would cancel them, and accordingly took his cash book in the presence of the complainant and marked said checks “canceled,” and at the same time destroyed what the complainant supposed were the two checks. He in fact destroyed but one of them, and drew the other and used the money in some transaction of his own. Shortly afterward, Fred G. Kune needing money as a margin upon a contract for certain stocks which he had purchased for Lamphere, applied to the complainant for a check for §500, and the complainant supposing that both of the previous checks had been destroyed, and having no notice to the contrary, drew a §500 check as requested, payable to. the order of Fred G. Kune, and gave the same to him. Fred G. Kune handed said check to said Grain and Stock Exchange without indorsing it, but on the same day, and before the check had been presented at the bank for payment, notified the bank not to pay it. At that time the balance in the complainant’s favor on his account with the bank was only §492.13. The officers of the bank, in reply to said notice, said that they could not refuse payment without notice from the complainant, the drawer. Fred G. Kune thereupon went immediately to the complainant and confessed to him the facts in relation to his having drawn the former check instead of destroying it, and the complainant at once wrote a notice to the bank not to pay the check and handed it to Fred G. Kune. The latter returned to the bank and delivered the notice, but in the meantime the check had been presented by the officers of the Exchange, who, at the same time deposited in the bank to the complainant’s credit the sum of §7.87, so as to make the account equal to the check, and the bank had then certified the check and charged its amount to the complainant’s account. At the hearing on pleadings and proofs, the court found that said check was obtained from the complainant by Fred G. Kune by fraudulent representation and without consideration; that said bank was duly notified not to pay or certify said check before it was presented for certification; and it was decreed that said check was null and void and was canceled, and that said bank place to the credit of the complainant §500, the amount of the check; that the complainant pay into court, for the benefit of said Exchange, said sum of §7.87, and that the complainant recover from said Exchange his costs. From this decree both said Exchange and said bank have appealed to this court.

As the check was not indorsed by the drawee, the Exchange can not occupy the position of a Iona fide holder for value, but the check is open to all defenses and equities which would have been available if it had remained in the hands of the drawee. The only proposition urged by the counsel for the Exchange is, that the court below erred in finding that said check was obtained by fraud and without consideration. This presents a mere question of fact upon which the finding of the chancellor, who saw and heard the witnesses, must be held to be final unless it appears to be clearly against the preponderance of the evidence. The testimony of the complainant states the facts substantially as above set forth, and in our opinion his testimony is met with no clear or substantial contradiction. It is true his relationship to Fred G. Kune might be sufficient to give countenance to a suspicion of collusion between them, but in the absence of evidence tending to proA'e collusion, the mere fact of such relationship can not aid the defendants. The argument for the Exchange is based mainly upon the fact which may perhaps be gathered from all the evidence, that at the time the last check Avas dmvn, the actual balance in the complainant’s favor on his account at the bank Avas substantially as he supposed it to be, notwithstanding the fact that the prior $500 check, which he supposed was destroyed, had been draAvn. It does not appear, however, that he had kept in mind a careful reckoning of the checks previously drawn, but rather the contrary; and the fact that he supposed that there was only about $500 to his credit when he dreAv the check in question, when there would have been about §1,000 if the previous check had not been drawn, is not necessarily, under the circumstances, inconsistent with his testimony in relation to the fraud practiced upon him. We see no reason, therefore, for disturbing the finding of the chancellor as to said question of fact.

The bank complains that while the decree requires it to place the amount of the check to the complainant’s credit, it fails to protect the bank against the possibility of future litigation by requiring a surrender and actual cancellation of the check. We are of the opinion that, under the circumstances of this case, the bank has no just grounds of complaint. The certification of the check by which the bank assumed an absolute liability to the holder, was a mere voluntary act on its part which it was under no legal duty to perform. The check being for a larger sum than the drawer had on deposit, the bank was neither bound to pay or certify it. If it had merely declined payment, as it was its undoubted right to do, it would have exposed itself to no litigation in relation to the check. But it saw fit, voluntarily, to assume a new liability not within the contemplation of the drawer nor at his instance or in his interest, and it can not well complain, therefore, if a decree obtained at his suit should fail to relieve -it from the consequences 'of its own voluntary assumption of liability.

But we think the notice to the bank was sufficient to at least put it on inquiry, and that its subsequent certification of the check was in its own wrong, and it must therefore hear the consequences of its wrongful act or extricate itself therefrom by affirmative proceedings of its own. The notice not to honor the check was by the drawee, who still held at least the legal title to the instrument, and had an undoubted interest in the question of its payment or certification. He was certainly in a position where he was entitled to be heard by the bank, and its view that a notice, to he available, must come from the drawer, was in our opinion a mistake.

But even if it was not a notice binding upon the bank, it was sufficient to put it on inquiry as to equities against the check in the hands of the Exchange, and the bank should not have honored the check without making such inquiries as ordinary prudence would have dictated. Turning a deaf ear to the notice, and certifying the check without inquiry as to the equities of the parties was an act of negligence, and the court was not bound, in a suit in which the bank was praying no relief, to be solicitous to protect it against the consequences of such negligence. We are of the opinion that the decree was warranted by the evidence, and it will therefore be affirmed.

Decree affirmed.


text:
    Robert H. Parks et al. v. Melville S. Nichols.
    1. Bill of exchange—Presumption that drawer has funds in drawee’s hands.—-In the absence of explanatory evidence, it is the legal presumption that the drawer of a hill of exchange has funds in the hands of the drawee and after such hill has been accepted and paid, it will he presumed that it was paid out of the drawer’s funds in the hands of the drawee. A bill of exchange accepted and paid by the drawee is therefore, of itself, no evidence of an existing indebtedness from the drawer to the drawee.
    2. Evidence rebutting such presumption.—This legal presumption may be rebutted by proof of the actual transaction between the parties, and the nature of the transaction may sometimes be inferred from the situation and relations of the parties and the general scope of their dealings. Qucere, whether the evidence in the present case may not be sufficient to rebut said presumption.
    3. New trial granted on ground of surprise.—A court should be very careful not to mislead the parties by its own course of action and when it seems likely that it has done so, it should afford prompt and adequate relief. A new trial is granted on the ground of surprise, since plaintiffs’ counsel, after the repeated decisions by the court during the course of the trial, were justified in relying upon the rules of law as thus interpreted and applied by the court and in governing their action accordingly, and nob introducing further evidence.
    Appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Opinion filed July 28, 1886.
    Messrs. Doolittle & McKey and Mr. J. R. Doolittle, Jr., for appellants;
    that the garnishee can set off against the judgment debtors and the attaching creditor only such demands as he might have brought suit upon against the judgment debtors or the attaching creditor, had no garnishment writ been issued, cited Chap. 62, Sec. 13, Rev. Stat. Ill.; Scammon v. Kimball, 92 U. S. Sup. Ct. 362; Hilliard v. Walker, 11 Ill. 644; Hinckley v. West. 9 Ill. 136; Coates v. Preston, 105 Ill. 470; M. C. R. R. Co. v. C. & M. L. S. R. R. Co., 1 Bradwell, 390.
    In the case of accommodation paper, where the party has, by the terms of the instrument, declared his liability, he may recover the money paid from the party for whom it was advanced, and may defend as against the drawer of an accepted bill or the payee of an accommodation note: 1 Wait’s Actions and Defenses, 608; Snydam v. Westfall, 2 Denio, 205; Wright v. Garlinghouse, 26 N. Y. 539; Hunter v. Kibbe, 5 McLean, 279; Hardy v. Ross, 4 Bradwell, 501.
    A new trial will be granted, on the ground of surprise, when the court has, by its rulings on the trial in regard to the admissibility of evidence, induced a party to omit evidence : Morrow v. Hatfield, 6 Humph. 108; Bowden v. Morris, 1 Hughes, 378; The S. B. Violet v. McKay, 23 Arkansas, 543; Dunham v. Baxter, 4 Mass. 79.
    Mr. Francis A. Riddle, for appellee;
    that the presumption exists that the drawer has funds in the hands of the drawee and that his acceptance and payment are an admission thereof, cited Gillilan v. Myers, 31 Ill. 526; Horstman v. Henshaw, 1 Howard, 177; 1 Parsons on Notes and Bills, 323 (1 Am. Ed.).
   Bailey, P. J.

In this case the Bank of the State of New York commenced its suit by attachment against Robert A. Parks, Cumberland G. White and Horace E. Dillingham, co-partners under the firm name of E. H. Parks & Co., to recover an indebtedness of §45,500, and caused Mellville S. Nichols to be summoned as a garnishee. The defendants appeared and waived service of process, and on their confession judgment was rendered against them for §38,065.51 and costs. Interrogatories having been filed, the garnishee answered denying having in his possession or charge any property or effects of the defendants, or being indebted to them in any sum, and issue having been taken on said answer, a trial was had before the court, a jury being waived, resulting in a finding and judgment in favor of the garnishee.

The evidence shows that the firm of R. H. Parks & Co. was organized on the 1st day of March, 1883, for the purpose of carrying on the business of buying and selling grain, provisions, stocks and cotton on commission, and having its principal place of business in the city of Mew York, and continued in business until June 19, 1883, when it failed; that said garnishee, at the same time, was engaged, under the name of M. S. Nichols & Co., in the purchase and sale of grain and provisions on commission on the Board of Trade of Chicago; that said R. H. Parks & Co., at or shortly after their organization as a firm, with the view of engaging very extensively in dealings on said Board of Trade, employed said Michols to act as their agent and broker in Chicago upon a stipulated commission, and to facilitate their transactions with him, procured the use of a private telegraph wire running from Mew York to Chicago; that by the arrangement between R. H. Parks & Co. and Michols, said firm was to keep sufficient margins in Michols’ hands to protect him against loss on transactions entered into by him on their account, and, as is conceded by appellee’s counsel, the usual and indeed the only way in which Michols received the money required as margins under said arrangement, was by drafts drawn by him on R. H. Parks & Co.; that in pursuance of said employment said Michols transacted a large amount of business for said firm on said Board of Trade, by way of buying and selling grain and provisions, said purchases and sales amounting in all to about 89,000,000.

It is claimed that during the course of these transactions B. H. Parks & Co. advanced to said Michols large sums of money, and that the accounts between said parties show that there was a considerable balance due from him to them. It seems to be conceded that the aggregate result of said business was a net loss of §84,744.58, and that Michols is entitled to a credit for that sum besides his commissions. It appears, however, that during the continuance of the business, said parties drew drafts on each other from time to time, which were honored and paid, the total amount of money so transmitted between them being nearly §450,000. The plaintiffs, to show the several amounts of money advanced by them to Michols, offered in evidence a series of drafts drawn on them by hirn, payable to the order of various Chicago hanks, amounting in the aggregate to nearly §300,000, all of said drafts appearing from indorsements thereon, to have been presented and paid. Objection to said evidence was made by said garnishee and overruled by the court, it being held that said drafts were competent evidence in the case, the court accompanying his decision with certain remarks which are preserved in the hill of exceptions, and from which the counsel for the plaintiffs understood him to hold, as they claim, that said drafts were prima facie evidence of money advanced from E. H. Parks & Co. to Nichols. The foregoing being substantially all the evidence tending to prove that said moneys had been so advanced, the counsel for Nichols, at close of the plaintiffs’ evidence, demurred to the evidence, and moved the court to enter judgment thereon in favor of Nichols. The demurrer and motion were overruled, the court holding that said evidence established, prima facie, a right to recover against the garnishee, and in announcing this decision also used language which was understood by plaintiffs’ counsel as holding that the drafts of themselves were evidence tending to prove an indebtedness from Nichols to R. H. Parks & Co. The counsel for Nichols then entered a further motion to exclude said drafts, which motion was also overruled. The counsel for Nichols then introduced in defense a large number of similar drafts drawn by E. H. Parks & Co. on Nichols, and purport-ing to have been duly presented and paid. As the evidence then stood, assuming that said drafts were evidence in each case of moneys advanced by the drawees to the drawers, it would appear from all the evidence, as we think, that there was a considerable balance due and owing from Nichols to R. H. Parks & Co. The court thereupon took the case under advisement for a number of weeks, and then announced his decision, holding, that in the case of each of said drafts, the legal prima facie presumption was that they were drawn upon funds in the hands of the drawee, belonging to the drawer, and that none of the drafts could he considered as tending to prove the advancement of money by one party to the other. The court thereupon practically extruded all of said drafts from his consideration, and upon the remaining evidence found a balance in favor of Nichols equal to the aggregate losses sustained upon said transactions on the Board of Trade and his commissions. The counsel for the plaintiffs thereupon moved for a new trial, basing their motion mainly ujion the fact shown by affidavit, that'they had been misled by the various rulings of the court during the course of the trial, as to the sufficiency and effect of the evidence produced by them, and had been thereby induced to forbear producing other competent evidence which they had at hand tending to prove the plaintiffs’ account for moneys advanced by them to said Nichols, but the court overruled said motion and gave judgment discharging the garnishee.

It seems to be the well settled rule that, in the absence of explanatory evidence, it is the legal presumption that the drawer of a bill of exchange has funds in the hands of the drawee, and after such bill has been accepted and paid, it will be presumed that it was paid out of the drawer’s funds in the hands of the drawee. It follows that a bill of exchange accepted and paid by the drawee is, of itself, no evidence of an existing indebtedness from the drawer to the drawee. It can not be doubted, however, that this legal presumption may be rebutted by proof of the actual transaction between the parties, and the nature of the transaction may sometimes be inferred from the situation and relations of the parties and the general scope of their dealings. We are not clear that the evidence in the present case may not be sufficient to rebut said presumption. It is proved that R. H. Parks & Co. and Nichols entered into business relations with each other by virtue of which R. H. Parks & Co. were required to advance large sums of money to Nichols from time to time, and that the mode by which such advances were to be made, according to the agreement of the parties, was by honoring Nichols’ drafts whenever he needed the money. The business thus contemplated was actually carried on, and during its progress Nichols drew on B. H. Parks & Co. said drafts, which were duly honored and paid. There wras no evidence outside of the drafts themselves tending to show money belonging to Nichols in the hands of R. H. Parks & Co. to meet said drafts. We are by no means-clear that under these circumstances there is not a legal presumption that the drafts were drawn in pursuance of the agreement between the parties, and in the due course and as a part of the commercial dealings in which they were engaged.

But apart from this consideration, we are inclined to the view that a new trial should have been awarded the plaintiffs on the ground of surprise. The court, during the course of the trial, by repeated decisions, held that the drafts in question were competent evidence tending to prove the plaintiffs’ cause of action, and by overruling the demurrer to the evidence he held that the plaintiffs had made out a prima facie case, a conclusion which could have been reached only by holding that the drafts, when received in the light of all the other evidence, tended to prove a subsisting indebtedness from Nichols to the plaintiffs to the amount of the drafts. It would seem that the plaintiffs’ counsel, after these -repeated decisions, were justified in relying upon the rules of law as thus interpreted and applied by the court, and in governing their action accordingly. The view taken by the court in finally deciding the case seems to us to be 'clearly inconsistent with the one announced when the evidence was admitted, and ¡particularly when the demurrer to the evidence was overruled, and was well calculated to operate as a surprise upon the plaintiffs. A court should be particularly careful not to mislead the parties by its own course of action, and when it seems likely that it has done so, it should afford prompt and adequate relief. In this case we think a new trial should have been awarded, or at least, the case should have been opened to the parties for the introduction of further evidence.

It can scarcely be doubted that the evidence necessary to clear up the questions left so doubtful is not difficult to obtain. When we consider the magnitude of these transactions, it is very manifest that it must be within the personal knowledge of the parties themselves whether these drafts represent money advanced by the plaintiffs to Nichols, or an indebtednoss which they already owed him. We can not hut express our astonishment that they were not examined on that subject when on the stand. We can not acquit counsel of apparent negligence in this respect. But we are of the opinion that in justice to the parties a new trial should be awarded. For this reason the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: McAllister, J.

text:
    Margaret Reid, Adm’x, v. City of Chicago.
    1. Pleading.—The opinion in this case contains a good statement of a plaintiff’s title and interest in a waterway.
    2. Jurisdiction.—This court has no jurisdiction to authoritatively decide the question whether the plaintiff’s intestate had a property interest in the waters of the feeder as a navigable channel or canal so that the drawing off such waters and leaving the channel unnavigable was such, a, physical deprivation of such property as amounted to a taking within the meaning of § 11, Art. 13 of the Constitution of 1848, and gave a right of action.
    Appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Opinion filed August 6, 1886.
    This was an action on the case originally brought in April, 1876, by Jeremiah dowry and Alexander Reid against the city of Chicago, to recover damages for the injury to the property and business of plaintiffs, as owners and operators of a certain stone quarry situated near to a certain artificial channel, cut and made by the State of Illinois before the year 1849, as and for a feeder to the Illinois and Michigan canal, which said first mentioned channel was called the Calumet feeder, which was of sufficient width and the waters therein of sufficient depth to be navigable for fiat boats, and which plaintiff had been accustomed to use in that way in conveying their stone from said quarry to said Illinois and Michigan canal, but that the defendant in its work of deepening said canal from Bridgeport to Lockport, had thereby so lowered the waters of said feeder, as to render the same unnavigable and to deprive plaintiffs of the use thereof.
    It appears from the record that said Clowry having died, on suggestion it was ordered that the cause proceed in the name of the surviving plaintiff, Reid; that afterward, January 28, 1885, the latter having died, on suggestion it was ordered that the administratrix of his estate he substituted, and the cause proceed in her name.
    The declaration contains two counts, and it appears on the face of it and as applicable to both counts, that the lowering of the waters of the feeder was occasioned by the execution by the defendant of a plan of public improvement, for cleaning the Chicago river, by deepening, to the additional depth of eight feet, the bed or bottom of said Illinois and Michigan canal from Chicago to Lockport; that such improvement was authorized by an act of the legislature, passed February 15,1865; that complete arrangements were made for doing said work, contracts let and possession of the canal taken for the purpose, and a large portion of the work done prior to the adoption of the Constitution of 1870, although it was not completed until July 15, 1871.
    The court below sustained a general demurrer to the declaration, and plaintiff prosecutes this appeal.
    Mr. John S. Cook and Mr. J. R. Doolittle, for appellant;
    cited Sinnickison v. Johnson, 2 Harrison, N. J., 129; Gardner v. Newburgh, 2 John. Ch. 162; Pumpelly v. Green Bay Co., 13 Wal. 166; Adams v. Slater, 8 Bradwell, 72; Canal Trustees v. Haven, 5 Gilman, 548; 11 Ill. 554.
    The city of Chicago is liable for damages to private property for its acts in deepening the Illinois and Michigan canal: City of Chicago v. Joney, 60 Ill., p. 383; City v. Huenerbein, 85 Ill. 594.
    It is no answer to say the city was doing it under the authority of the State. It was done by the city, and for the city of Chicago, to improve its sewerage: City of Chicago v. Joney, 60 Ill., 385 ; Act Feb. 16, 1865 ; Ordinance June 5, 1865,; Angell on Watercourses, Sec. 567; Gould on Waters, Secs. 582, 583.
    It is not a case of consequential damage or damage without injury. There was an actual diversion of navigable water from the plaintiff’s land, and a talcing away or destruction of a property right in the flow of the water, a taking away of the navigable water, a part of, and incident to, the land itself ; and it was, also, a direct damage to the property which was not taken: Section 13, Art. 3, Constitution; Gould on Waters, Sec. 204, and notes; Angell on Watercourses, Secs. 340, 97, 99; Evans v. Merriweather, 3 Scammon, 492; Druley v. Adam, 102 Ill. 177.
    Mr. H. O. McDaid and Mr. C. A. Knight, for appellee;
    that the demurrer was properly sustained, cited Murray v. Haverty, 70 Ill. 318; Marshall v. Trumbull, 28 Conn. 183; Hutchinson v. Chase, 39 Me. 513.
    If a person owns land bounded by the bank of a stream he can not claim any right in the bed of the stream or waters thereof: Rockwell v. Baldwin, 53 Ill. 19 ; Hatch v. Dwight, 17 Mass. 298 ; Child v. Starr, 4 Hill (N. Y.), 369.
    As to waters flowing in the canal of a canal company: Gould on Waters, § 225; R. R. Co. v. Buell, 102 Pa. 23; Fox v. Cin., 104 U. S. 783; Washburn on Easements, 424; Longstreet v. Harkrader, 17 Ohio, 23, 28.
    It is only when some special damage results to property by reason of the injurious disturbance of some right of projierty in a street or highway by which an abutting proprietor is specially injured as to such property that an action will lie: Rigney v. City of Chicago, 102 Ill. 64; McCarthy Case, 7 Eng. & Irish Appeals, 264; Becket v. Midland Ry. Co., L. R., 3 C. P. 96
    The entire abandonment of the canal could not create any different liability. Every lessee of power took his lease and put up his improvements with full notice of the reserved right of the State to discontinue its canal and stop his supply of water: Hubbard v. City of Toledo, 21 Ohio, 379 ; Elevator Co. v. Cincinnati, 30 Ohio, 629; Trustees of the W. & E. Canal v. Brett, 25 Ind. 409; Fishback v. Woodruff, 51 Ind. 102; Commonwealth v. Pennsylvania Railroad Co., 51 Pa. St. 351.
   McAllister, J.

We are of opinion that the first count of the declaration, to which the court below sustained the demurrer, is clearly insufficient to show a cause of action. There was no attempt by the pleader to set out any title or interest of plaintiff in the waters of the Calumet feeder, other than that which might be claimed by every other individual of the general public. There is nothing stated from which there could arise a legal duty on the part of the State to keep and maintain the waters of said artificial channel, constructed only for the purposes of a feeder to the Illinois and Michigan canal, in a navigable condition. And it apj ears by direct averment in the count, that the city of Chicago, in deepening said canal, as a consequence of which the waters of the feeder became lowered to an unnavigable depth, acted in pursuance of authority given by the legislature for the purpose, and there is no averment that, in the execution of the authority so given, the defendant did anything in excess of it, or that the work or any part of it was negligently or unskillfully performed. There is nothing stated in that count which could derogate from the absolute right of the State, so far as plaintiff’s intestate was concerned, to draw off the waters and discontinue the use of both canal and feeder. Fox v. Cincinnati, 104 U. S. 783, and cases cited.

There is more difficulty in deciding as to the sufficiency of the second count. In that, the pleader set out the title and interest of plaintiff by these allegations: And whereas plaint-~ iff and said dowry and their grantors, as aforesaid, were possessed of and were the owners of an estate of inheritance in fee in said lands above described, in which said quarries were so situate, adjoining said Calumet feeder, and as such owners during all that time, for said twenty years and upward, they rand their grantors had not only the common right of all other citizens of said State, to navigate and pass with their goods, etc., in boats, etc., in and upon said canal, but by reason of said ownership of said lands, underneath, upon, and contiguous to the banks thereof, by them and their grantors, they became, and were, the rightful owners of an easement of, in and to, the said water way or navigable way, appurtenant? and of right belonging, to their said lands aforesaid, which said easement was of great value, to wit, forty thousand dollars and upward,^at the time of the committing the grievances, etc.

The above is a good statement of plaintiff’s title and interest in the water way. 1 Chitty on Pleading, 14th Am. Ed., 381, marg. p. the same, and cases in note.

This count, like the first, shows that the lowering the was ters in the feeder was wholly in consequence of the improvement by the city of Chicago, of deepening the canal for the purpose of cleansing the Chicago river; that the defendant was authorized by an act of the legislature passed February 16,1885, and that the plans were made and contracts let and much of the work done, before the adoption of the constitution of 1870; and there is no averment of defendant exceeding its authority, or any negligence or unskillfulness in doing the work.

The case is, therefore, apparently within the principles announced in City of Chicago v. Rumsey, 87 Ill. 348, and not governed by the provision of the constitution of 1870, which prohibits the damaging of private property for public use without compensation.

But counsel for appellant takes the position that, in this second count, it sufficiently appears that plaintiff’s intestate had a property interest in the waters of the feeder, as a navigable channel or canal, so that the drawing off such water- and leaving the channel unnavigable, was such a physical de privation of such property, as amounted to a taking within the meaning of § 11, Art. 13, of the Constitution of 1848, and gives a right of action. We have no jurisdiction to authoritatively decide that question, and therefore affirm the judgment below, leaving the appellant to the necessity of going to the Supreme Court to have the point determined.

Judgment affirmed.


text:
    William E. Burlock et al. v. Chas. F. Cook et al.
    1. Reforming lease.—In a bill to reform a lease, as to the amount of rent paid, it was alleged that complainants orally agreed with defendants, if defendants obtained a lease of the building at a rental not exceeding $14,000, to lease of defendants a portion of the building at a rate equal to one half of what" defendants had to pay the owner. Defendants represented that they paid $14,000 a year and the lease to complainants was accordingly executed at a rental of $7,000 per annum. After occupying the premises seven months complainants for the first time learned that the defendants’ rent was only $13,000 per year; after this complainants paid the rent according to the terms of the lease in question, under protest, and now bring this bill to reform the lease and recover back all the overpayments; held, that the decree reforming the lease as to the annual rent and allowing complainants the overpayments made during the first seven months is proper.
    2. Same.—There can be no recovery for the overpayments made after complainants had acquired a knowledge of all the facts affecting theii rights in the premises. Complainants simply allege that they paid undei protest. There is no allegation that such payments were superinduced bj any fraud or deceit or by any duress, moral or otherwise, on the part of defendants.
    3. Fraud—False representation.—Fraud is a fact and must be alleged in the bill in order to be a basis for relief. A representation may be untrue or false, without being fraudulent.
    ' Appeal from the Superior Court of Cook county; the Hon. Gwynn Gabnett, Judge, presiding.
    Opinion filed August 6, 1886.
    This was a bill in chancery by appellants agiinst appellees to reform a lease, dated June 22, 1883, whereby the appellees demised to appellants, by lease in writing, the four upper stories or floors of a building, situate upon Madison street, in the city of Chicago, for the term of two years from the first day of January, 1881, at a rental of seven thousand dollars per annum, payable in monthly installments. The bill sought to have said lease reformed only as respected the amount of rent, and so as to conform to what complainants alleged to have been the oral agreement between the parties as to what the amount of rent should be, in pursuance of which said lease was executed, and the bill also sought to compel the defendants to repay to the complainants alleged over payments of rent under said lease.
    The facts alleged as the basis of the relief were, that defendants, just before the making of said lease, were about to obtain a lease of the whole bulling from one Adams, the owner ; that they agreed with complainants that, if they obtained such lease of the owner, at a rental not exceeding §14,-000 per annum, or for a less sum, they would lease to complainants for said term, said four upper stories or floors, at a rate of rent equal to one half of what they had to pay such owner; that in pursuance of such oral agreement and upon the statement and representation of defendants that the rent they had to ¡Day was at the rate of §14,000 per annum, the lease in question was executed and taken by complainants at a yearly rental of §7,000, supposed to be half of what defendants had to pay such owner for the whole building ; that complainants occupied under said lease from said January 1,1884, and paid rent to defendants according -to the terms of said lease ; that about September 1, 1884, complainants learned for the first time that the agreed rental between defendants and said Adams for the whole building was in fact §13,000 per annum instead of §14,000 ; that thereafter complainants paid defendants the rent, according to the terms of the lease in question, under protest, all of which overpayments complainants sought to recover báck of defendants. The prayer was for reformation of the lease so as to conform to said oral agreement, and that defendants be adjudged to pay back to complainants said overpayments.
    The bill was not filed until July 18, 1885. The defendants answered, denying all the material allegations of the bill, to which replication was filed. On hearing upon pleadings and proofs a decree passed, reforming the lease, as respected the annual rent to be paid as above stated, but the court allowed complainants the sum of §297.32, being the overpayments and interest thereon, made by complainants to defendants during the first seven months of said term, and prior to the discovery by complainants of said false representations, and adjudged costs against defendants. From that decree complainants appeal, assigning for error the refusal of the court to allow them to recover of defendants for all overpayments after the discovery of said false representation as to what defendants had to pay to the owner as the rental of the whole of said premises.
    Mr. F. W. Becker, for appellant;
    cited C. & A. R. R. Co. v. C. V. & W. Coal Co., 79 Ill. 121; Gage v. Lewis, 68 Ill. 604; Prickett v. Madison Co., 14 Bradwell, 464.
    Mr. Henry C. Noyes, for appellees ;
    cited Reagan v. Baldwin, 126 Mass. 485 ; Brisbane v. Dacres, 5 Taunt. 143 ; Benson v. Monroe, 7 Cush. 125 ; Town of L. v, Ackerman, 16 Ind. 552; Stoner v. Milliken, 85 Ill. 213; Knibbes v. Hall, 1 Espinasse, 84.
   McAllister, J.

The counsel for appellants insists that the chancellor erred in denying the right of complainants to recover hack all the overpayments of rent under the case in question, and that cases of the class of Brisbane v. Dacres, 5 Taunt. 143, Benson v. Monroe, 7 Cush. 125 and Reagan v. Baldwin, 126 Mass. 485, have no application, because in none of them was there any element of fraud.

The rule is elementary that in chancery every fact essential to the plaintiff’s title to maintain the bill, cmd obtain the relief., must be stated in the bill, otherwise the defect will be fatal. Story’s Eq. Pl., § 257; Skinner v. Bailey, 7 Conn. 499 ; Helm v. Cantrell, 59 Ill. 524.

Fraud is a fact and must be alleged in the bill in order to be a basis for relief. Brainard v. Bailey, 27 Conn. 617; Bailey v. Ryder, 10 N. Y. 363.

There is no allegation of fraud contained in the bill. A representation may be untrue or false, without being fraudulent.

The bill shows upon its face that all of the overpayments which the chancellor refused to allow the plaintiffs, were made after they had acquired a knowledge of all the facts affecting their rights in the premises. There is no allegation that such payments were superinduced by any fraud or deceit on the part of the defendants, or either of them, or by any duress, moral or otherwise. But plaintiffs simply allege that they paid them under protest. If fraud or duress was to be relied upon as a basis for that species of relief, it should have been alleged, so that defendants might be apprised by the bill what the suggestions and allegations were against which they were to prepare their defense.

We are of opinion also that there was no evidence tending to show that the overpayments made after September 1, 1884, were any of them superinduced by fraud or deceit on the part of defendants. The plaintiffs were then aware of all the facts affecting their rights, and defendants by their acts or representations, did nothing to obtain said payments or either of them, after the plaintiffs ha<| so acquired knowledge as to facts respecting defendants’ lease from the owner of the building. We are of opinion, also, that if the bill had contained any allegations as to said overpayments having been obtained by duress or legal compulsion, there is nothing in the evidence sufficient to sustain it. We think, as the case stood, the decree below was proper and should be affirmed.

Affirmed.


author: Moran, J.

text:
    Louisa S. Glade, Ex’x, etc. v. Kaspar G. Schmidt.
    1. Arbitration—Award—Submission.—The award can not be extended beyond the terms of the submission. If an award goes beyond the issues limited by thé submission and is therefore in excess of the power conferred on the arbitrators it will be invalid as a whole, if the matter in excess can not be separated from the residue.

      ti. Parol evidence to enlarge award.—When the written award itself is in pursuance of the submission, it can not be enlarged by parol evidence so as to show that the arbitrators took into consideration and settled matters not submitted to them. Such evidence might be admissible in a direct attack to set aside the award or in answer to a suit brought upon the award in support of a plea denying the validity of the award. Under the circumstances of the ease, held, that the testimony of the arbitrators, as to the set-off in question, was inadmissible.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed August 6, 1886.
    This action was brought by the executrix of the last will of Herman 0. Glade, deceased, to recover from appellee, who was the survivor of the firm of Schmidt & Glade, of which Glade, deceased, was a member, a debt due to the deceased by the firm on the ground that appellee had, for a valuable consideration, assumed and .agreed to pay it. The case was considered by this court on a former appeal, and is reported in 15 Brad well, 51, and as-the facts are there stated in detail, it is unnecessary to restate them here at large. The parties being engaged in a litigation made a stipulation, by which it was agreed that a decree should he entered directing the sale of a certain brewing business and good will of said firm and all personal property of said firm except doubtful accounts, to Schmidt, subject to all outstanding liabilities of said firm ; that the amount Schmidt was to pay therefor should he accertained by arbitrators chosen as therein provided; that Schmidt should pay plaintiff one half the amount so ascertained after deducting all the liabilities of said firm; that the individual accounts of Schmidt and Glade respectively, should be ascertained from the books, and the accounts due by or from them respectively, should be treated as the accounts of strangers. The agreement prescribed a form for the report of the arbitrators, which was filled up and signed by them, and is as follows:
    “ We, the undersigned arbitrators, hereby appraise and find the entire value of the brewing business, real and personal property and assets of the late firm of Schmidt & Glade, on August 21, 1882, inclusive of the good will of said business, in the hands of Kaspar G. Sclnnidt, as the purchaser thereof, at the sum of $161,245.94, after deducting all the liabilities of said firm and also deducting the compensation of said Schmidt, as" manager and receiver, as aforesaid.”
    After the award was filed in court, plaintiff conveyed to Glade all the real estate and personal property of the firm, and received therefor half the sum fixed as the value in the award, it being provided in tbe deed that “ Schmidt should assume and agree to pay all the liabilities of the late firm of Schmidt & Glade.”
    It was shown on the trial below, and is not disputed, that the books of the firm of Schmidt & Glade showed a balance due from said firm to said Glade, deceased, of $1,881.93.
    To defeat appellant in her suit to recover said amount as a liability of the firm, which appellee had assumed to pay, the court permitted appellee to introduce two of the arbitrators, who testified, in substance, that in arriving at their award, they took into consideration the item of indebtedness from tbe firm to Glade, as shown by the books, and off-set the same sum of $1,881 against Schmidt’s claim for service as manager and receiver. Under this evidence the court found for Schmidt, and gave the judgment against plaintiff for costs, and the case is brought here by appeal.
    Messrs. Roserthal & Pence, for appellant;
    as to awards, cited Morse on Arbitration, 486; Russell on Award, 436; Traverse v. Stafford, 2 Ves., Sr., 19; Kimball v. Walker, 30 Ill. 482 ; Hadaway v. Kelly, 78 Ill. 286.
    Arbitrators are not competent witnesses to impeach their own award or to prove their own misconduct: Bigelow v. Maynard, 4 Cush. 317; Stone v. Atwood, 28 Ill. 30; Claycomb v. Butler, 36 Ill. 100 ; Denman v. Bayless, 22 Ill. 302; 1 Greenleaf on Ev., § 249.
    Mr. William Vocke, for appellee.
   Moran, J.

The agreement of submission made by the parties is very clear as to the matters submitted to the aibitrators, and explicit as to the manner as to which they shall, in arriving at the value of the property and business, treat the accounts of the respective partners. They are authorized to allow Schmidt a compensation for his individual services as manager and receiver, but as to the accounts of the partners on the books when correctly ascertained, they are to be treated as the accounts of strangers, and by the agreement Schmidt is to take the property subject to the liabilities. The written submission is not to settle as between the parties all. claims, demands and accounts between them, but to ascertain and report as to certain specified matters, and the written award made by the arbitrators is in formal accordance with the terms of the written submission. It is well settled that the award can not be extended beyond the terms of the submission. Caldwell on Arbitration, 321; Lee’s Ex’r v. Delane, Adm’r, 39 N. J. Eq. 193. And if an award goes beyond the issues limited by the submission, and is therefore in excess of the power conferred on the arbitrators, it will be invalid as a who’e, if the matter in excess can not be separated from the residue. White v. Arthur, 59 Cal. 336; Wait’s Actions and Defenses, 537.

This award was treated by the parties as valid, and a decree of the court was entered based thereon, and defendant does not now attack the award, but claims it as binding and final; as such it operates as a conclusive judgment as between the parties as to all the matters submitted and awarded upon.

The written award itself is the best evidence of the action of the arbitrators. When the written award is in pursuance of the submission, it can not be enlarged by parol evidence, so as to show that the arbitrators took into consideration, and settled, matters not submitted to them. Such evidence might be admissible in a direct attack to set aside the award, or in answer to a suit brought upon the award, in support of a plea denying the validity of the award.

The admission of the testimony of the arbitrators as to the set-off of the claim of Glade against the services of Schmidt was, under the circumstances of this case, error, and the judgment must be reversed and the case remanded for a new trial.

Reversed and remanded.


text:
    Phoenix Insurance Co. v. John Guderyahn, Ex’r, etc.
    1. Administration—Filing claims—Two years limitation.—Filing a claim against an estate in the probate court with the clerk thereof within two years after the grant of letters of administration, is an exhibition of the claim to the court so as to .take the claim out of the limitation of two years in § 70 of Chap. 3 of the R. S., and if the claim has been so. filed, the claimant may, after the expiration of two years, summon the administrator, and if the claim is allowed, have it paid in due course of administration.
    2. Dismissal on claim.—A dismissal of a claim on call because the claimant does not appear, determines nothing as to the justice of the claim and cannot be a bar to an adjudication of the claim, when newly presented" and the eSect of a dismissal is the same whether it occurs before or-after the expiration of the two years.
    Appeal from the Circuit Court of Cook county; the Hon. John G.' Bogers, Judge, presiding.
    Opinion filed August 6, 1886.
    Appellant filed in the Probate Court of Cook county a Cairn against the estate of Frederick W. Guderyahn, deceased, on March 12, 1881, at the adjudication term. The claim was placed on the claim calendar, and was continued from term to term until February 9, 1885, after the expiration of more than two years from the issuing of letters testamentary, when it was called and dismissed for want of prosecution, claimant not appearing. After the expiration of the term at which the claim was dismissed, the claimant, learning of the dismissal, sued out a summons against the executor on the claim, which was dnlv served.
    On the hearing in the probate court the claim was disallowed and an appeal was taken to the circuit court, where, on trial before the court, it was allowed for the sum of $1,427-.27 to he paid out of other estate not inventoried or accounted for by the executor, as a claim not exhibited to the court within two years from the time of the grant of letters, and not to be paid in due course of administration. Appellant submitted to the court upon the trial, propositions in writing to be held by the court, in substance, that a claim against the estate of a deceased person is duly exhibited to the court, if tiled in writing in the probate court, within two years from the granting of letters, and is entitled to be allowed in due course of administration notwithstanding its dismissal out of court, after the lapse of two years from the date of granting letters, if it is filed again or suit brought thereon before the bar of the general statute runs against it.
    Also, that the dismissal of a claim duly filed against the estate for want of prosecution, is in effect an involuntary non-suit within the meaning and intendment of Section 25, Chapter 83, R. S., and claimant is entitled, under said section, to commence a new action on said claim in said probate court or other court of competent jurisdiction, within one year after such dismissal, and that in that event, the limitation of two years (Section 70, Chapter 3, R. S.) is not a bar.
    The court refused to hold the law as stated in the propositions, but gave judgment as above set out, and the case is brought here on appeal by claimant.
    Mr. John S. Miller, for appellant;
    cited Wallace v. Gatehell, 106 Ill 319 ; Wells v. Miller, 45 Ill 33; Mason v. Tiffany, 45 Ill. 382.
    Mr. Jesse Holdom and Mr. Daniel J. Avert, for appellee;
    cited Reitzell v. Miller, 25 Ill. 53; Shephard v. Rhodes, 60 Ill 301; Blanchard v. Williamson, 70 Ill. 647.
   Moran, J.

The only question presented is, does the two years’ limitation, prescribed by Sec. 70 of Chap. 3 of the R. S., .bar the claim under the circumstances shown by the record. It has been expressly decided by the Supreme Court that filing a claim against an estate, in the probate court, with the cleric thereof, within two years after the grant of letters of administration, is an exhibition of the claim to the court, so as to take the claim out of the limitation of two years in Sec. 70, above referred to, and that if the claim has been so filed the claimant may, after the expiration of two years, summon the administrator, and if the claim is allowed, have it paid in due course of administration. Wallace, Ex’or, v. Gatchell, 106 Ill. 315.

The presentation of the claim to the court and the filing thereof was, then, a sufficient exhibition of the claim to the court to take it out of the two years statute. We presume it would not be contended, that if the claim had been called and dismissed at any time within the two years from the issuing of letters, it might not be filed again before the expiration of the two years, and adjudicated and ordered paid in due course. A dismissal of a claim on call because the claimant does not appear, determines nothing as to the justice of the claim, and can not be a bar to an adjudication of the claim when newly presented, and the effect of the dismissal is precisely the same whether it occurs before or after the expiration of the twro years. We are clearly of the opinion that the circuit court, having found the claim valid, erred in directing it to be paid out of assets not mentioned or accounted for by the executor, and the case will be reversed and remanded to the circuit court for a new trial.

Reversed and remanded.


author: Horan, J.

text:
    Chicago & Northwestern Ry. Co. v. John Goebel, Adm’r, etc.
    1. Negligence—Persons engaged in labor on track.—To persons who are lawfully upon the track engaged in labor, the railroad company owes a duty of active vigilance, and such persons have a right to become engrossed in their labor to such an extent that they may be oblivious to the approach of trains, relying as they may upon the performance of the duty imposed, by law, upon the railroad company with reference to them. Held, that in this case the railroad company was guilty of gross negligence in the management of its switching engine and that deceased, who was engaged in unloading coal from a car on the track, exercised ordinary care.

      2. Instructions.—The instruction to the effect that the employes of the railroad company, when they saw the deceased on the car at the place he was injured, a short time before the accident, as a matter of law, had a right to presume that he was a reasonable being and would not remain in a position of danger, was properly refused.
    Appeal from the Circuit Court of Cook county ; the Hon. Lobin C. Collins, Judge, presiding.
    Opinion filed August 6, 1886.
    This was an action to recover for the killing of John James Hart, who, at the time of the accident which caused his death, was a teamster engaged in unloading coal from one of appellant’s cars, in the village of Evanston. It was usual to place cars which were to be unloaded at Evanston on a side track where teams were driven up close to the cars and the freight unloaded. The car on which deceased was working was standing on this side track when it was struck by other cars on the track which were set in motion by a loaded car which was “ kicked ” down against them from the switch connecting with the main track.
    Evidence tended to show that switching was done at the station every day, empty cars being taken from the side track and loaded ones being shot or “ kicked ” in upon it for the purpose of being unloaded. It was usual for the crew of the freight train, by whom the switching was done, to bunch the cars on the side track when the switching for the day was finished, and those who were engaging in unloading cars were in the habit of commencing their work of unloading as soon as they saw that the cars on the side track were bunched together and the brakes set. On the day of the accident the cars on the side track were bunched together and the brakes set, and the freight engine returned to the train on the main track. After waiting some time, those who were engaged in unloading cars, the deceased among the number, went upon the cars and began their work, and after about twenty minutes a loaded car was shot down the side track with such force as to move the cars against which it hutted the distance of two and a half car lengths. The sudden jerk threw deceased to the ground and under the moving cars, and he was run over and killed. It was proved by the train hands that the bell on the engine was rung as it moved the loaded car from the main track and switched it down on the side track, and it was shown by the evidence that when the switching was finished, it was most generally, but not always, the habit of the train men not only to bunch the cars on the side track up together and set the brakes but also to couple the cars. It further appeared that one of appellant’s brakemen saw the deceased at work upon the car, from which he was thrown, a short time before the loaded car which caused the accident was “ kicked ” down upon the side track.
    The verdict was for plaintiff for five thousand dollars, on which judgment was rendered, and the case is brought here by appeal.
    Mr. B. C. Cook, for appellant.
    Mr. Frank R. Grover, Mr. Robert N. Freeman and Mr. C. M. Hardy, for appellee.
   Horan, J.

It is contended by appellant’s counsel, that the declaration is not sustained by the proof in regard to the particular negligence alleged to have caused the injury. The second count of the declaration is, in substance, that deceased had been given to understand by the servants and employes of defendant, that the engine would not be run again at that time on the switch or side track, yet, that negligently and without any warning signal, the said servants of the defendant drove said engine against the cars which were on the side track, and on one of which Hart was employed, with great force, whereby said Hart was thrown from the car and injured, etc. The evidence tended to sustain these allegations. There is no ground for saying that the proof varied from the declaration. This case has no similarity to that of T. W. & W. Co. v. Jones, 76 Ill. 313, which is cited and relied on by counsel. There the condition of the crossing had no relation .to the accident. Here what was done by appellant’s servants in giving deceased to understand that the locomotive would not he run onto the side track, governed his action in going to work on the car, and afterward running the engine and loaded car in on that track without warning or signal is the negligence complained of. Appellant further urges that the evidence does not show such negligence on the part of its servants, as to make it responsible for the death of Hart, and that it fails to show that Hart himself exercised ordinary care. The evidence tended to show that Hart, as well as the four or five other men who were at work unloading the cars on the side track, were accustomed to that work ; that they were in the habit of suspending work at the cars while switching wras going on, and that when the cars were bunched up together, it was an indication that the switching was finished, and the men resumed their work on the cars. There is a substantial concurrence of testimony that the cars were thus bunched on the day of the accident, that the four or five men, deceased among the number, all supposed from what they saw that the switching was finished, and got into different cars and brought their teams close alongside and resumed their work. The servants of appellant in charge of the engine and the cars that were being switched, had knowledge of the usual method of leaving the cars when switching was finished, and knew what leaving them in such position indicated to the men who were unloading them. It is shown that some time elapsed between the bunching of the cars and the switching onto the side track of the car which caused the accident. One witness fixes it at thirty minutes. It appears that during this delay, a brakeman of appellants, the one who was giving the signals to the engineer in doing the switching that day, while on top of a car on the main track, saw Hart upon the coal car from which he was a short time afterward thrown ; that said brakeman gave the signal to the engineer by which the car being switched was propelled against those already on the side track; that no warning whatever was given to notify deceased of the impending danger, save ringing of the bell on the engine as it passed from the main track onto the side track, at a point some five hundred feet away from the car on which Hart was working. We can not say that upon these facts the jury were not justified in finding that deceased was in the exercise of ordinary care, and appellant’s servants were guilty of such negligence as rendered the company liable.

It is argued by counsel that when the employes of the company saw Hart at the coal car, the switching not having been finished, they had a right to presume that he would not place himself in a position of. danger, and that he would use sufficient precaution to avoid being injured, in analogy to the rule as stated in R. R. Co. v. Modglin, 85 Ill. 482.

We do not think the doctrine of that case can find appropriate application to the facts in this record. Hart was rightfully on the appellant’s car, and was there under circumstances which might very readily suggest to the brake man, Matthews, that he supposed that the switching was finished. Engaged in his work under that belief, he would not be likely to notice the movement of cars on the main track, and when a car being shoved by the engine, passed the switch and entered on the side track, his view was wholly obstructed by several box cars standing between him and the switch. The noise made by himself and others near him in shoveling coal, would be likely to prevent his hearing the ringing of a bell five hundred feet away, and the bell, if heard, would be likely to convey no warning that the engine was on the side track, as the point at which the engine was moving on the main track, and the switch and side track, were in the same general direction from him.

Under such circumstances, instead of relying on a presumption that he would get out of the way of the impending danger, it was the duty of the railway company to exercise great diligence to warn him against it. “ The general rule is, that to persons who are lawfully upon the track, engaged in labor, the railroad company owes a duty of active vigilance, and such persons have a right to become engrossed in their labor to such an extent that they may be oblivious to the approach of trains, relying as they may upon the performance of the duty imposed by law upon the railroad company with reference to them. A person having business with the railroad company in loading and unloading freight, has a right to occupy a position designated by the company’s agent, hazardous though it may seem, relying upon the company’s diligence to protect him in such position.” Thompson on Negligence, 461, and cases cited; Mark v. St. Paul, M. & M. Ry. Co., 32 Minn. 208 ; Rolling Mill Co. v. Johnson, 114 Ill. 57.

It is alleged by appellant that the court below erred in instructing the jury. No instructions were given for plaintiff. Defendant submitted thirteen instructions to the court, ten of which were given as asked, two modified by the court and one refused. The instruction refused stated the doctrine contended for by counsel, that the employes of the company, when they saw the deceased on the car at the place he was injured, a short time before the accident, as a matter of law had a right to presume that he was a reasonable being and would not remain in a position of danger. The instruction was properly refused for reasons hereinbefore stated. The sixth instruction, as given, was as follows, the modification by the court being indicated by italics:

“The jury are instructed as a matter of law, that although a- plaintiff who has been guilty of negligence can recover, if the jury believe from the evidence that the defendant has been guilty of negligence, which is gross in comparison with that of plaintiff, which is slight, yet you are further instructed as a matter of law, that before you can consider the degrees of negligence of which the various parties have been guilty, you must believe from all the evidence in the case, that the deceased was at the time of the accident in question, exercising ordinary care and prudence for his own safety, and if you believe from the evidence that the deceased was guilty of a want of ordinary care, then the plaintiff can not recover.” It is urged that by the phrase, “ which is slight,” the court in effect told the jury that the negligence of the plaintiff was slight. We do not think it possible that the jury understood the court by such words to express any opinion as to the care or negligence of plaintiff. The phrase was inapt, and the court was probably led to its use by the similar phrase used by counsel in drawing the instruction, but in view of the fact that in two of the other instructions given the stereotyped formula as to gross and slight- negligence was laid before the jury, and that the jury were told in nearly every instruction that plaintiff could not recover unless deceased was, at the time of the accident, in the exercise of ordinary care, we feel safe in the conclusion that appellant was not injured by the use of the words complained of. As to the modification of the twelfth instruction, it is unnecessary to say more than that the instruction, as modified, is more favorable to appellant than as asked.

After a careful examination of the record, we find no error, and the judgment appealed from must be affirmed.

Judgment affirmed.


text:
    Noel B. Boyden et al. v. Eli Frank, Assignee, etc.
    1. Replevin.—A writ of replevin will not lie except against a party who takes and retains possession; and when an officer has fully executed a previous replevin writ and has no further control of the property in controversy, a suit in replevin can not be maintained against him.
    2. Same—Officer—When writ is protection.—Where a replevin writ is executed by replevying the property from the possession of the defendant in the writ, the writ is a complete protection to the officer, irrespective of the real ownership of the property.
    3. Voluntary assignment—Exclusive jurisdiction.—In the matter of voluntary assignments under our statute the county court is invested with exclusive jurisdiction to control, administer and distribute the trust estate and to control the assignee in the discharge of his duties.
    4. Same—Aid of other courts may be invoked by assignee.—But it does not follow that the jurisdiction of other courts may not he invoked in aid of the administration of the estate by the county court, and the exercise of such ancillary jurisdiction has never been held to be an invasion of the rule upon which the claim of the county court to exclusive jurisdiction must rest.
    5. Same—Assignee’s suit subject to same defenses as any other. —A replevin suit brought by a general assignee is subject to the same rules as those governing similar suits brought by any other party; and as the law entities a defendant in replevin to litigate not merely the right, of possession but the right of property, the assignee adopting that form of action must he held to have adopted it with all its incidents.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed August 6, 1886.
    Mr. George H. Kettelle, for appellants;
    that where property which has been fraudulently obtained is turned over to the assignee by the assignor, the assignee, not being a purchaser for value, will have no higher right to the property than the assignor himself had, cited Bishop on Insolvent Debtors, 238, § 305; Joslin v. Cowee, 60 Barb. 48; Chaffee v. Fort, 2 Lans. 81; Bliss v. Collte, 32 Barb. 322; Wells on Replevin, 185, § 325; Farley v. Lincoln, 51 N. H. 579; Barrett v. Warren, 3 Hill, 350; Poor v. Woodburn, 25 Vt. 240; Thayer v. Turner, 8 Met. 550.
    Messrs. Moses, Newman & Reed, for appellee;
    that an officer can not justify under a writ of replevin, cited Stimpson v. Reynolds, 14 Barb. 506; State v. Jennings, 14 Ohio St. 733; contra, Foster v. Pettibone, 20 Barb. 350; Willard v. Kimball, 10 Allen, 211.

    If the officer may justify at all, he should, at least, plead the title of the plaintiff in the replevin writ, as is the privilege of an officer justifying under an attachment suit: Cook v. Miller, 11 Ill. 611; Pease v. Anderson, 44 Ill. 218.
    The coroner’s plea does not even cover the return of the replevin writ, and this must be pleaded when mesne process is shown: Slomer v. People, 25 Ill. 71; Hoe’s Case, 5 Coke, 90; Allen v. Woodford, 36 Conn. 143.
    As to the jurisdiction of the county court in assignment: Waterbury v. Hanchett, 17 Chicago Legal News, 411.
   Bailey, P. J.

This was replevin brought by Eli Frank, assignee of Barnett Gráíf and Isaac Abraliamson, against Hoel B. Boyden and Thomas Wilson. It appears that on the 14th day of February, 1884, said Graff and Abraliamson, coj artners, doing a mercantile business under the firm name of Graff, Abrahamson & Co., purchased of said Wilson a bill of lace goods, amounting to §1,044, and on the 17th day of the following April another bill amounting to $93.25. On the morning of the 6th day of May, 1884, Graff, Abrahamson & Co. confessed judgments in the Superior Court of Cook county in favor of various creditors, amounting in all to about $50,000, and executions thereon were immediately issued to Seth F. Hanchett, then sheriff of Cook county, who at once levied upon the stock of goods of Graff, Abrahamson & Co., and placed the same in charge of a custodian. On the same day Wilson, churning that the two bills of goods above mentioned were obtained from him by Graff, Abrahamson & Co., by fraudulent representations as to their financial standing and responsibility, and with a preconceived design on their part not to pay for them, disaffirmed said sale, and to recover possession of said goods, sued out a writ of replevin therefor against said Hanchett directed to said Noel B. Boyden, then coroner of said county, to execute. The coroner thereupon went to the sheriff with his writ and read the same to him and demanded said goods, but the sheriff told him that the deputy who had charge of said levies was absent, and requested him to wait until the next morning for a delivery of the goods.

On the same day Graff, Abrahamson & Co. executed to said Frank a general assignment of their property for the benefit of their creditors, said assignment being filed for record at 2:40 p. m. Late in the afternoon the several creditors whose executions were in the hands of the sheriff, united in the execution of a paper, in which they consented to the surrender of the possession and custody of the goods levied upon by the sheriff' to the assignee, such consent, however, being upon the express condition that their respective liens under said executions should attach to said property in the hands of the assignee, with the full force and effect of the liens of the sheriff under said executions. Said stipulation being filed in the county court by the attorneys for said creditors, and no other parties appearing, an order was entered by that court that the sheriff deliver possession of said stock of goods to the assignee, it being provided in the order that the rights of the sheriff under the executions attach to said goods when surrendered to the assignee, with the same force and effect as if the sheriff had remained in possession thereof. The stock of goods continued in the possession of the sheriff, in charge of his custodian, until the next morning, May 7th, when by agreement between the assignee, the sheriff and an attorney, representing the judgment creditors, the sheriff delivered to the coroner the goods called for by the replevin writ and surrendered to the assignee the possession of the residue. The coroner immediately turned over to Wilson the goods thus replevied .by him and took his receipt therefor. In the afternoon of the same day, the assignee commenced the present suit, making the coroner and Wilson defendants, and replevied the goods from Wilson.

The declaration consists of two counts, the first charging the defendants with wrongfully taking and detaining said goods, and the second charging them with wrongfully detaining the same. The defendants pleaded non cejpit, non cletinet, property in Wilson, property in Graff and Abrahamson, property in the sheriff and property in John Doe, and defendant Boy. den filed a separate plea justifying, as coroner, under the writ of replevin in the suit of Wilson v. Hanchctt. Mo replications seem to have been filed to said pleas, but the parties went to trial without any objection on that ground, and a jury being waived, the court found the issues for the plaintiff and assessed his damages for the detention of the property replevied at one cent. A motion by the defendants for a new trial being overruled, judgment was entered on the verdict.

One of the grounds upon which the motion for a new trial was based was, that under the pleadings and evidence, there should have been no finding against defendant Boyden. This ground we think was well taken, and a new trial should therefore have been granted. The evidence seems to us to be very clear, that, at the time the suit was commenced, the possession of the goods in question was in Wilson and not in Boyden. Boyden testifies ‘that he turned them over to Wilson at about eleven o’clock in the forenoon, and the officer who served the replevin writ in this case, testifies that said writ came into his hands at about three or four o’clock in the afternoon of the same day. This is corroborated by many facts surrounding the transactions as shown by the evidence. At the time of the commencement of the present suit, then, the replevin writ in Boyden’s hands had been fully executed, and he had no fur. ther control of the property in controversy. Under such circumstances, a suit in replevin can not be maintained against him. In Gaff v. Harding, 48 Ill. 148, a suit in replevin was brought against a sheriff, to recover possession of certain property upon which he had levied an execution, but which he had turned over to the judgment debtor upon a delivery bond, and it was held that, as the sheriff was not in possession, the writ would not lie against him-; that “ the writ will not lie except against a party who takes and retains possession.”

But there is another reason why the issues should not have been found against defendant Boyden, which in our opinion is equally satisfactory. His plea justifying under the replevin writ in his hands presented, we think, a good defense, and was sustained by the evidence. The sufficiency of a justification by an officer under a writ of this character has not, so far as we are aware, been passed upon in this State, and the decisions bearing upon the question in the other States are not altogether harmonious. The weight of authority, however, would seem to be in favor of sustaining the defense. In Shipman v. Clark, 4 Denio, 446, which was trespass against an officer and others for replevying property belonging to the plaintiff, a stranger to the writ, it was held that the replevin writ was a protection to the officer. In the opinion, Bronson, J., quoting in substance a dictvm of Lord Holt in Hallet v. Byrt, Carthew, 380, says: On an execution against the goods of A, the officer acts at his peril, if he takes the goods of B. But in replevin, where the command of the writ is to replevy and deliver certain specified chattels, the process may be a sufficient protection to the officer, though he take the chattels from the possession, and they may be the property, of one who is a stranger to the writ.” These authorities were followed in Foster v. Pettibone, 20 Barb. 350. That was trespass against a sheriff for taking a quantity of flour under a replevin writ, issued against a person other than the owner, who at the time had the property in his possession. It was held that the action would not lie, the court saying: “ There would be a flagrant inconsistency in holding that an officer of the law may be liable in tort for taking property which by law he is commanded to take, when he kept strictly within the limits of his process, in compelling the commission of a wrong and enforcing a responsibility for it, but I do not see why this doctrine would not be involved in the maintenance of the action. The property taken was specified in the writ; the writ contained a command to take it which was absolute and unqualified ; no direction was given to the sheriff to inquire into the right of property before seizure ; no means are provided by„the statute for such inquiry. * * * Viewing the mandate of the writ as imperative and unconditional, the strongest considerations upon which the principle of protection to ministerial officers can rest in any case, exist and require protection to the defendant in this. It would be intolerable to require the sheriff to act, and hold him responsible for his action, to a third person who might prove to be the owner of the property.”

In Willard v. Kimball, 10 Allen, 211, a suit in trover was brought against a sheriff for taking a quantity of coal under a writ of replevin, the ownership of the coal being in dispute between the plaintiff in the trover suit and the defendant in the replevin suit. The court refused to consider the evidence of ownership, holding it to be immaterial, as the writ would in either case be a protection to the officer. In Weiner v. Van Rensselaer, 43 N. J. Law, 547, the same principle is clearly recognized, although the proposition there decided is, that while property is in the sheriff’s hands by virtue of a writ of replevin, it is in the custody of the lawr, and can not be taken from him by a second writ of replevin, before he has executed his writ, but that as soon as he has perfected service of the writ, the property may be replevied from the person to whom the officer has delivered it. Cases which hold a contrary doctrine, or at least a considerable portion of them, seem to have arisen where the writ was executed by taking the property from the possession of the real owner, and not from that of the defendant in the writ. Such appears to have been the case in Stimpson v. Reynolds, 14 Barb. 506, but that case is directly overruled by Foster v. Pettibone, supra. We are disposed to yield our assent to the reasoning of the court in Foster v. Pettibone, to the extent at least of holding that, where a replevin writ is executed by replevying the property from the possession of the defendant in the writ, as in this case, the writ is a complete protection to the officer, irrespective of the real ownership of the property. It follows that the finding of the court, so far as it relates to defendant Boyden, was unwarranted by the evidence.

It appears from the evidence that, in the case of Wilson v. Hancliett, issues as to the title and ownership of the property replevied, were duly formed by declaration, pleas and replications, and that said cause was tried and a verdict rendered, finding the issue; in favor of Wilson and finding the property in the goods and chattels replevied in him, and that a judgment was duly rendered by the court on said verdict that said Wilson retain possession of said property, to be held by him, irreplevisable, and recover of said Hancliett his costs. It is by no means clear to us that the judgment in that case, should not be held to be conclusive upon Graff, Abrahamson & Co., and upon then- assignee, who stands in the relation of privity to them, but as there are other questions which are decisive of the case upon this appeal, and which necessitate a reversal of the judgment, we are not disposed to express a definite opinion upon that question.

Evidence was offered by the defendants at the trial tending to prove that the goods replevied were obtained from Wilson by Graff, Abrahamson & Co. by fraud, but all evidence on that subject was excluded, the court apparently holding that the question of fraud in obtaining the goods, and of Wilson’s right to rescind the sale and repossess himself of the goods, was Avithin the exclusive cognizance of the county court, and for that reason could not be determined by the superior court in the replevin suit. We are of the. opinion that this was an erroneous view of the law, and that the evidence offered should have been admitted.

It can not be questioned that, under our statute in relation to voluntary assignments for the benefit of creditors, the county court is invested Avith exclusive jurisdiction to control, administer upon and distribute the trust estate, and to control the assignee in the discharge of his duties. Freydendall v. Baldwin, 103 Ill. 325 ; Hanchett v. Waterbury, 115 Id. 220; Colburn v. Shay, 17 Bradwell, 280 ; Preston v. Spaulding, 18 Id. 341. This, hoAvever, does not result from any express Avords of the statute conferring the jurisdiction on the county court, and prohibiting the other courts from exercising it, but is only an application of the familiar and long established rule that in cases of concurrent jurisdiction the court Avhich first obtains it will have precedence. By the execution and recording of the assignment, the county court obtains jurisdiction of the estate vested in the assignee by the assignment, and from that time its jurisdiction must have precedence over that of other courts. But it does not follow that the jurisdiction of other courts may not be invoked in aid of the administration of the estate by the county court, and the exercise of such ancillary jurisdiction has never been held to be an imrasion of the aboAre mentioned rule, upon which the claim of the county court to exclusive jurisdiction must rest. We had occasion to consider this question somewhat at length in Preston v. Spaulding, mpra, and we then reached the conclusion that the assignee, in his efforts to get the estate assigned, into his possession, and subject it to the administrative jurisdiction of the county court, was not necessarily confined to suits and proceedings in that court.

The present case is not an unapt illustration. The assignee lias seen fit to go into the superior court and commence there a common law action of replevin. His right to do so, and the authority of the superior court to lend him the aid of its process is not questioned. But it is claimed that the court, after having issued its writ at the instance of the assignee and placed him in ¡possession of the goods in controversy, is limited as to the nature and scope of the questions in relation to said property, which it can investigate and determine. In other words, the position seems to be taken, that the superior court had the authority to give the assignee possession of the property, but not to adjudicate upon his rights to it. Upon what principle can the court be said to be thus limited? The assignee having brought his suit, and rightfully as he must concede, the law applicable to that class of actions determines the scope of the litigation and the nature of the questions and rights which may be litigated. We see no reason for holding that a replevin suit brought- by an assignee is subject to any different rules from a suit brought by any other litigant. The law entitles a defendant in replevin to litigate not merely the right of ppssession, but the right of property, and the assignee having adopted that form of action, must be heffi to have adopted it with all its incidents.

Wilson, having pleaded property in himself, was entitled to introduce any competent evidence tending to support that plea. He attempted to sustain his title by showing that the goods had been obtained from him by the plaintiff’s assignors by fraud, thus entitling him to disaffirm and repudiate the sale, and recover back the property sold. The evidence offered was plainly material to the issue, and the issue was one which the court had the power, and which it was its duty to try. The exclusion of the evidence, therefore, was manifest error.

The defendants offered in evidence the transcript of an order of the county court, made during the pendency of the present suit, with the assent of a majority of the creditors of Graff, Abrahamson & Co., discontinuing all the proceedings in that court and remitting all the parties to the same rights and duties existing at the date of the assignment, except so far as the estate had been administered, and providing for the discharge of the assignee, after he should have accounted for the assets received by him under the assignment. This evidence was excluded by the court, and its exclusion is assigned for error. We have to suggest to counsel whether evidence tending to show the termination of the plaintiff’s rights to the property replevied during the pendency of the replevin suit, can be availed of by the defendants in the absence of a plea puis darrien continuanee. But in the light of the views above expressed, it would seem that said evidence was scarcely material. The effect of the order discharging the assignee would be, not to re-in vest Wilson, but Graft, Abrahamson & Co., with the title to the goods. Wilson’s title would be in no way strengthened nor liis position improved. The assignee, being a mere volunteer, stands in the shoes of his assignors, and if Wilson can not establish his title as against one, he can not as against the other.

For the errors above pointed out, the judgment will be reversed and the cause remanded.

¡Reversed and remanded.