author: Mr. Justice. Wilkin

text:
    The Indianapolis and St. Louis Railway Company v. The People of the State of Illinois.

      Filed at Ottawa

      October 31, 1889.

    1. Taxation—railroad track—omitted from schedule—presumption— estoppel. A railway company returned to the county clerk various schedules of its property for taxation. Schedule “A,” showing the property designated as “railroad track,” failed to include a parcel of land of eighteen acres, which was assessed by the local assessor, and taxes, were levied thereon. There was nothing to show that the tract so omitted from schedule “A” was not included in schedule “D,” which should show all real estate other than railroad track : Held, on application for judgment for the taxes, that it would be presumed such strip of land was returned as real estate other than railroad track.
    2. A railway company having failed to return for taxation a strip of its land as “railroad track,” the land was assessed by the local assessor as real estate other than railroad track, and it was not assessed otherwise. On application for judgment against the lot for the taxes, the railway company offered to prove that in fact it was a part of the track,, 'which the court refused to permit: Held, that the evidence was properly excluded, on the ground of estoppel.
    Wbit of Ebbob to the County Court of St. Clair county; the Hon. John B. Hay, Judge, presiding.
    This was a proceeding by James D. Baker, collector of St. Clair county, to obtain judgment for delinquent taxes for the year 1886, against real estate described as “total real estate other than track; schedule D; lot 5 a; survey 780; 18-acres.” Plaintiff in error objected, on the ground that said real estate was “a part of and included in the right of way between East St. Louis terminals of said company.” On the-hearing, the collector objected to the introduction of testimony in support of said objection, on the ground that said defendant company was estopped to urge the same in this proceeding,, because the schedule returned by it to the county clerk of said county, in accordance with the provisions of section él, chapter 120, of the Revised Statutes, did not contain a statement of the property on which said tax was assessed,—a copy of which schedule was filed with the objection. This schedule, by its heading, states, that in accordance with the provisions of the statute the company “makes return of its property for taxation, by schedule, as follows: Schedule marked ‘A’ shows the property designated by law ‘railroad track.’ * * * Schedule marked ‘B’ * * * rolling stock. * * * Schedule marked ‘C’ * * * tools. * * * Schedule marked ‘D’ shows all real estate (other than railroad track) belonging to or controlled by this company, its location, and listed value.” To this caption, schedules marked “A,” “B” and “C” are attached. Schedule “D” does not appear. To this return the vice-president and assistant secretary of the company make affidavit, stating “that the foregoing schedules marked ‘A,’ ‘B,’ ‘C’ and ‘D,’ contain and are a full, true and correct exhibit of all the property owned or controlled by said company which is located in the county of St. Clair and State of Rlinois.” The objection to the offered proof was sustained, and judgment rendered in favor of the collector, from which this writ of error is prosecuted.
    Mr. John T. Dye, and Mr. E. C. Rhoads, for the plaintiff in error:
    This was an application by the county collector, under section 184 and the following sections, chapter 120, of the Revised Statutes, for judgment on lots and lands delinquent for taxes.
    Section 41, chapter 120, provides that the district assessor shall assess real estate other than railroad track under the term “lots and lands.” This was an application for judgments for delinquent taxes on lots and lands so assessed.
    The defendant objected to the rendition of this judgment, on the ground that the property is not lots and lands, but is part of the railroad track of defendant, and as such must be assessed by the State Board of Equalization, under section 109, chapter 120. If this property is not lots and lands, but part of the railroad track of this defendant, this judgment should not be rendered, for the local assessor had not authority to assess it. Railroad Co. v. People, 98 Ill. 351; Railway Co. v. Miller, 72 id. 147; People v. Railroad Co. 116 id. 181; Railroad Co. v. People, 4 Bradw. 468.
    Is this property railroad track, and does the evidence offered by the defendant, which the court refused to hear, show that it is railroad track ?
    Section 42, chapter 120, defines railroad track as follows: “Such right of way, including the superstructures of main, side -or second tracks, and turn-outs, and the station and improvements of the railroad company, on such right of way, shall be held to be real estate, for the purposes of taxation, and denominated railroad track,” etc.
    The defendant offered to prove that said land so assessed is a strip of land of the uniform width of 670 feet, and extending about 1720 feet in length, and situated in the city of Bast St. Louis, one of the terminal points of said railway, and that said strip of land was obtained and is held and used by said defendant for the economic transaction of the defendant’s business at Bast St. Louis, and that said strip is traversed by a main track, and that the remainder of said strip is its right of way, and comprises a part of the terminal facilities of said road, and that said strip is reasonably necessary, and is used for side-tracks, turn-outs, machine and repair shops and roundhouses. Terminal facilities are railroad track. Railroad Co. v. People, 98 Ill. 350; Railroad Co. v. People, 4 Bradw. 468.
    In the first of these cases, two lots of a company contained about thirty-two acres, after deducting a strip 100 feet wide, used for the main track. The thirty-two acres were covered with tracks in constant use. The land was also used for car shops, machine shops, blacksmith shops, freight depot, stock yards, foundry, round-houses, paint shops, etc. It was held, that the whole of the land constituted a part of the company’s right of way and its railroad track, and as such could not he legally assessed by the local township assessor.
    Although this land is not included in the return of the company of its railroad track, that return is not binding on the State Board of Equalization, as that board is given “power and authority, by committee or otherwise, to examine persons and papers,” (sec. 109, chap. 120,) and it is of course to be presumed that they discovered the omission and assessed the road an additional sum per mile on account of this property. At any rate, it was their duty to do this, and not the duty of the local assessor. And the schedule of the company of its railroad track can give no indication whatever as to whether this land has been assessed by the State Board of Equalization.
    Is the defendant estopped from claiming that this land is part of its railroad track by the mere omission to include it in its schedule of railroad track ? We take it, that where the law confers on one body the power to assess lands, that power can not be transferred to another body or person by any act or omission on the part of this railroad company.
    We can not understand how we are to be prevented from questioning the right of the assessor to do an act which is done confessedly without authority of law, by a return we make to some other officer, and with which return the county assessor has nothing to do whatever.
    Mr. M. W. Schaefer, for the defendant in error:
    We do not claim that the local assessors of a county have the right or authority to assess the railroad track of a railroad corporation, nor do we deny the proposition that a reasonable amount of real estate may be used as side-tracks, turn-outs, machine shops and round-houses, by a railroad corporation, which may also be assessed as railroad track. But we do claim that when a railroad company makes its sworn schedule, as provided by section 41, chapter 120, of the Bevised Statutes, wherein it reports all its real estate used as a track, or at least should so report, and if, in addition to its railroad track so reported, it—as in this ease—has real estate, then the local assessor has the right, and it is his duty, to assess such additional real estate.
    The plaintiff in error does not deny that this additional real estate described as lot 5a, survey 780, containing eighteen acres, was not reported by it as railroad track in its schedule, but it in fact admits it, saying: “That return is not binding on the State Board of Equalization, as that board is given ‘power and authority, by committee or otherwise, to examine persons and papers,’ and it is, of course, to be presumed that they discovered the omission, and assessed the road, an additional sum per mile on account of this property.”
    Now, the plaintiff wants this court to assist it in escaping taxation, on a presumption that the board of equalization would do a thing that it had no right or power to do without the consent of the plaintiff. How could this board say or determine that a strip of land 670 feet in width and 1720 feet in length, lying adjoining plaintiff’s right of way, should be assessed as railroad track, unless the plaintiff would, by its schedule, manifest a desire to have it assessed as such ? And we warrant, that should the State board, at any time, attempt such a thing, the plaintiff would object most strenuously, for its taxes, in that event, would be considerably more than at present. It appears as if the plaintiff in this case simply wants to escape taxation, and these tax objectors should come into court, as in equity, with clean hands.
    But in the case at bar, the plaintiff in error attempted to prove by a witness, that certain real estate, to-wit, the eighteen acre tract, is used for railroad purposes, and should be assessed as railroad track, which the plaintiff, in its sworn schedule, did not and would not report as such. We claim, and justly too, that the railroad company is estopped by its own action, and that it can not, on application for judgment, dispute it. If the plaintiff in error does not want this property assessed by the local assessor, then let it report it as railroad track, and have it assessed as such.
    The case of Chicago, Burlington and Quincy Railroad Co. v. Paddock et al. 75 Ill. 616, is similar to this case.
   Mr. Justice. Wilkin

delivered the opinion of the Court:

It is not claimed that lot 5 a, survey 780, was included in the schedule marked “A.” There is nothing in the record tending to prove that it was not included in schedule “D,” and therefore the presumption that it was returned as real estate other than railroad track must obtain. It is not pretended that it was assessed by the hoard of equalization, or that any tax whatever has been paid on it for the year 1886. The proof offered on the hearing, and excluded, was to the effect that this lot was in fact “railroad track” and used by the company as such. Its competency is based on Chicago and Northwestern Ry. Co. v. Miller, 72 Ill. 147, Chicago and Alton Railroad Co. v. The People, 98 id. 351, and The People v. Chicago and Western Indiana Railroad Co. 116 id. 181. All that is decided in these cases, and the case of Peoria, Decatur and Evansville Railroad Co. v. Goar, 118 Ill. 134, is, that property situated as this is claimed to be, may be treated as “railroad track,” within the meaning of the Bevenue act, and that when used by a railroad company as such, and so scheduled, it is properly assessable by the State Board of Equalization, and not by local assessors. In each of the cases cited, the property had been returned as “railroad track,” and so assessed, and it was sought by the proceedings below to subject it to double taxation, the local assessors having assessed it as real estate other than railroad track.

In attempting to bring this case within the scope of those cases, it is said: “Although this land is not included in the return of the company of its ‘railroad track,’ that return is not binding on the State Board of Equalization, as that board is given power and authority, by committee, or otherwise, to examine persons and papers, (sec. 109, chap. 120,) and it is, of course, to be presumed that they discovered the omission, and assessed the road an additional sum per mile on account of this property.” The fallacy of this position consists in the unwarrantable assumption that we will presume, in the absence of all proof, that the State board did detect the false return of the company, and did make an assessment of property which it did not schedule for assessment, and that the company can have the benefit of that presumption to relieve it from the payment of a tax assessed in conformity with its return. It was the duty of the company to make a true return of its property, and both the State board and the local assessor had a right to act upon the supposition that it had honestly discharged that duty, and the assessor was fully authorized, and it was his duty, to make the assessment for which the judgment below was rendered.

There is nothing whatever in this record tending to show, nor did plaintiff in error offer to prove any fact from which it could be inferred, that the tax in question is unjust, or that it has been deprived of any right secured to it, as the owner of the property assessed, by law. Mere formal objections to taxes, not affecting unjustly the right of the.citizen, can not be allowed to defeat judgments for their collection. Chiniquy v. The People, 78 Ill. 570; Purrington et al. v. The People exrel. 79 id. 11.

The attempt here is to escape the payment of a just tax through an irregularity, (if, indeed, there is an irregularity,) resulting from the negligent or wrongful act of the property owner. We think the court below properly applied the doctrine of estoppel in excluding the offered evidence. Its judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Robert N. Pendlay v. Minnie Eaton et al.

      Filed at Mt.Vernon

      October 31, 1889.

    1. Contest of will—testamentary capacity — evidence—burden of proof. On the trial of an issue as to the testamentary capacity of a person deceased, on bill to contest his will, the burden of proof, in the first instance, devolves upon the proponents of th§ will to show such capacity; but alter they give in evidence the will, and the testimony of the subscribing witnesses given on the probate, the burden of proof no longer rests on them,—then it is the duty of the jury to determine whether the testator possessed the requisite testamentary capacity, from the weight of all the evidence introduced by the respective parties.
    2. On the contest of a will in a case where the proponents of the will had given in evidence the original will, with the testimony of the subscribing witnesses taken in the county court, the trial court, on behalf of the contestant, gave this instruction: “The court instructs the jury, that the burden of sustaining the will in this case is, by law, cast on defendant, who avers its validity; and unless the defendant has shown, by the burden of proof, that said A. P., at the time he executed said will, was of sound mind and memory, you should find said will not to be the last will and testament of said A. P.Held, that the instruction was clearly erroneous.
    Writ of Error to the Circuit Court of Effingham county; the Hon. W. C. Jones, Judge, presiding.
    Mr. S. F. Gilmore, Mr. William B. Wright, and Messrs. Wood Bros., for the plaintiff in error.
    Mr. R. C. Harrah, and Mr. E. N. Rinehart, for the defendants in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by a portion of the heirs of Andrew Pendlay, against his widow, and son, Robert N. Pendlay, to set aside an instrument in writing, purporting to be the last will and testament of Andrew Pendlay, deceased, on the ground that the testator was not of sound mind and memory, and was wholly incapable of making a will,- and upon the further ground of undue influence exercised over the testator by his son, Robert N. Pendlay. The defendants put in an answer tó the bill, and the court directed an issue to be made up, whether the writing referred to in the bill and answer, purporting to be the last will and testament of Andrew Pend-lay, was his last will and testament or not. On a trial of the issue before a jury, a verdict was returned that “the said Andrew Pendlay, at the time of making said will, was not of sound mind and disposing memory, and capable of making a will, and that the will in controversy is not the will of said Andrew Pendlay.”" The court overruled a motion for a new trial, and decreed that the instrument in writing purporting to be the last will and testament of Andrew Pendlay, deceased,, and the probate thereof, be set aside, and declared null and void. From that decree defendants sued out this writ of error.

It appears from an examination of the record, that the testator was a resident of Jackson township, Effingham county. On February 27, 1888, he became sick. He gradually grew worse, until Saturday, March 3, when he died. The will in question was executed on Friday, the day before his death. By the terms of the will, the testator gave to his wife such interest in his estate as she would take under the Statute of Descents had no will been made, and all the rest of his property he devised to his son, Robert N. Pendlay. Whether the testator, at the time of making the instrument purporting to be his last will and testament, possessed the necessary testamentary capacity to make a valid will, is a question ■ upon which the evidence is conflicting, and as the facts of this case will have to be passed upon by another jury, we refrain from expressing any opinion on the weight of the evidence.

It is contended that complainants’ second instruction is erroneous, because isolated portions of the evidence are singled out and brought prominently before the jury. One charge in the bill was, that the will was executed through the undue influence of the defendant, and this instruction related to that branch of the ease. The jury, however, did not find against the will on that question, and while we think the instruction was erroneous, it is manifest from the verdict that it did no harm, and we would not be inclined to reverse on account of this instruction if the law had been correctly declared on other questions.

The fourth instruction given for the complainants was as follows:

“The court instructs the jury, that the burden of sustaining the will in this case is by law cast on defendant, and who avers 'its validity; and unless the defendant has shown, by the burden of proof, that said Andrew Pendlay, at the time he executed said will, was of sound mind and memory, you should find said will not to be the last will and testament of said Andrew Pendlay.”

The defendant put in evidence the will, and the testimony of the subscribing witnesses, given when the will was admitted to probate, which was prima facie evidence of its validity. The statute in express terms provides, that on a trial before a jury, to contest the validity of a will, the certificate of the oath of the witnesses at the time of the first probate shall be admitted as evidence, and to have such weight as the jury may think it may deserve. In Carpenter v. Calvert, 83 Ill. 63, where instructions were involved relating to the burden of proof, it is said: “Our statute, from an abundance of caution, provides that, in the first instance, the validity of a will shall not rest merely upon this presumption of law, arising from the fact that the will was duly executed, but requires that the witnesses who subscribed to the will shall testify affirmatively to the testamentary capacity of the party making the will. When this has been done, however, and contradictory testimony is produced, tending to show want of necessary testamentary capacity, the party asserting the validity of the will must prevail, unless the contradictory testimony be sufficient to overcome or neutralize the effect, not only of the affirmatory testimony given in favor of the validity of the will, but also to overcome or neutralize that presumption arising from the general rule of law that all men are presumed sane until the contrary is proven. In Holloway v. Galloway, 51 Ill. 160, where a similar question arose, it is said: “The defendants had put in evidence * * * the testimony of the subscribing witnesses given when the will was admitted to probate, and this was prima facie evidence of its validity. This testimony raised a presumption of the competency of the testator, which would be valid until disproved by counter testimony. It placed upon the plaintiffs in error the burden of showing the incompetency of the testator by proof sufficient to overcome the prima facie case made for him.”

In view of the principle established by these authorities, it is plain that the instruction as to the burden of proof was calculated to mislead the jury. Conceding that the burden of proof, in the first instance, devolved upon the defendant to sustain the will, after he had put in evidence the will, and the testimony of the subscribing witnesses, given when the will was admitted to probate, the burden of proof no longer rested on his shoulders. It was then the duty of the jury to determine whether the testator possessed the necessary testamentary capacity, from the weight of all the evidence introduced by the respective parties. The instruction did not, however, leave the jury free to determine the question from the "weight of the evidence, but directed them that the burden still rested upon the defendant, who asserted the validity of the will. This imposed a higher degree of proof on defendant than the law required. In Wilbur v. Wilbur, 129 Ill. 392, a similar instruction was held to be erroneous, and we refer to that case for a fuller expression of our views on the question.

For the error indicated, the judgment will be reversed and the cause remanded,

Judgment reversed.


author: Per Curiam :

text:
    Webster M. Samuels et al. v. Joseph B. Oliver et al.

      Filed at Ottawa

      October 31, 1889.

      1. Contracts—principal and agent—illegal contract—as, to make a “corner” on the market. If a grain broker, in executing the instructions of his principal, is required to pay out money to adjust differences in respect of the purchase and sale of grain, and is guilty of no fraud or violation of law, he will be entitled to be reimbursed by his principal for the outlay. The principal is bound to indemnify his agent or broker for losses incurred in executing his orders.
    2. But if one employs a broker to purchase and sell grain, with the illegal purpose of “cornering” the market or controlling the price thereof, and this fact is known to the agent or broker, the latter can not recover of his principal for services or money advanced in the execution of such illegal purpose, nor can the employer recover of his agent for moneys received by him in such illegal dealings upon the market.
    3. When parties enter into a contract which is illegal or contrary to public policy, the courts will not assist either of them, but will leave them in the position in which their illegal acts have placed them. The party advancing money or performing services under such a contract can not recover for the same of his employer, nor will he be liable to his employer for any profits derived by him in the business of his agency.
    4. The enhancement of the price of an article of prime necessity, such as wheat, or other articles, for purposes of extortion, is against public policy. And a combination or agreement to make a “corner” on stock or grain by buying it up, so as to control the market, and then purchasing for future delivery, is illegal, and a party thereto whose funds have been used by his direction in carrying out the agreement can not recover the same back.
    5. Custom—usage—as controlling dealings between parties. A person dealing at a particular market will be taken to have dealt according to the known general custom and usage of that market, and if he employs another to act for him in buying or selling at such market, he will be held as intending that the business shall be conducted according to such general usage and custom,—and this has been held the rule whether he in fact knows of the custom or not.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph B. Gary, Judge, presiding.
    This was an action of assumpsit, brought by appellees, to recover a balance of $1368.92 alleged to be due them from appellants, and also for damages for the failure of appellants to deliver 80,000 bushels of wheat, which they had bought, as brokers, for appellees. The declaration contains two special counts and the common counts. The first special count is based on the neglect of the defendants to require sufficient margins to be put up by sellers to them of wheat bought by the' defendants for plaintiffs, and a consequent loss to the plaintiffs; the second alleging that defendants became liable to plaintiffs as principals and sellers of wheat on the contracts of purchase made by them for the plaintiffs, by reason of defendants “ringing out” the contracts prior to their maturity. Appellants pleaded the general issue and a plea of set-off, and filed an account with the latter plea, as follows:

    A trial was had by the court by consent, resulting in a finding and judgment for the plaintiffs for $2192.67. The Superior Court refused to find damages against the defendants for the default of sellers to them, or on purchases made by them for the plaintiffs, but rendered judgment in favor of plaintiffs for the ledger account of $1368.92 and the item of $923.75, moneys collected by defendants for plaintiffs on the wheat deal referred to, less the commission of $100. Defendants below appealed to the Appellate Court for the First District, where the judgment was affirmed, and they prosecute this appeal from that judgment.
    Mr. M. W. Robinson, and Messrs. Overall & Judson, for the appellants:
    Public policy will not permit appellees to maintain this action. Whenever a particular staple is essential to the health and comfort of the community, a combination to absorb, for purposes of extortion, is invalid. 1 Wharton on Contracts, 442; Coal Co. v. Coal Co. 68 Pa. 173; Acton v. Pittston and Elmira Co. 68 N. Y. 558; Raymond v. Leavitt, 46 Mich. 447 ; Craft v. McConoughy, 79 Ill. 346.
    Appellees, as principals, áre bound to indemnify appellants for losses incurred in executing their orders. Wharton on Agency, sec. 340; Story on Agency, sec. 339; Bailey v. Bensley, 87 Ill. 556.
    Persons sending goods to or dealing in a market are supposed to know the usage there prevailing, and to act upon it. Lawson on Usages, 47, 284-287.
    Messrs. Bisbee, Ahrens & Decker, for the appellees:
    The ledger balance is admitted, and was not connected with the June deal. The contracts of purchasers were made long before the acts complained of as “cornering” the market, on June 30.
    Appellants were liable for the moneys collected, to the persons for whose use the same was paid. James v. Joselyn, 65 Me. 138; Cappell v. Hall, 7 Wall. 542; Cotton v. McKenzie, 57 Miss. 418; Black v. McMurry, 56 id. 217; Decil v. Leventhal, 57 id. 331; Auding v. Levy, id. 51; Arnot v. Coal Co.
      68 N. Y. 558; People v. Fisher, 14 Wend. 9; Sampson v. Shaw, 101 Mass. 145; Salt Co. v. Guthrie, 85 Ohio, 666.
   Per Curiam :

In the spring and summer of 1882, appellees undertook to run what is known as a “corner” in No. 2 red winter wheat, in the St. Louis market, and for that purpose, and to aid them in bringing about that result, employed appellants and eight or nine other brokers of the city of St. Louis, and through these agencies secured contracts for the sale of large quantities of wheat, to be delivered on or before the last day of June, 1882, and aggregating about 1,100,000 bushels. At the same time, through these same agencies, appellees bought up and secured substantially all of that grade of wheat actually in the market. By this means appellees were enabled to compel those whose contracts they held and had thus secured, for the delivery of wheat on or before the day named, to pay in settlement whatever price appellees might be able to fix as the market price, or might demand.

Shortly prior to June 27, 1882, appellants, as the brokers of appellees, had sold for June delivery, No. 2 red winter wheat as follows: To D. B. Francis & Co., 10,000 bushels, at $1.24£ per bushel; to B. A. Kent & Co., 5000 bushels, at $1.25, and another 5000 bushels for $1.26; and to the Culver Commission Company, 5000 bushels, at $1.28. On the 27th of June, J. B. Oliver, one of appellees^ for the purpose of showing an advance in the price of such wheat, and of inflating the market, instructed appellants to purchase for his firm 50,000 bushels, at $1.35 per bushel. At the same time he instructed his other brokers, holding contracts of purchase, to sell to appellants 50,000 bushels of wheat at that price, thus, in effect, buying” and selling to himself, and thereby fixing an apparent market price for such commodity, he then having the market therefor under his control. In obedience to such instructions, appellants purchased of D. B. Francis & Co., brokers selling for appellees, 10,000 bushels, at $1.35, but as Francis & Co. held appellants’ contracts of sale for and on account of appellees, for a like amount, at $1.24J, the latter, under the rules and usages of the Merchants’ Exchange, were compelled to pay to Francis & Co. the difference in the price, amounting to $1075. Appellants also, under instructions from appellees, bought 10,000 bushels of such wheat of E. A. Kent & Co., at $1.35, which last firm held the two prior contracts of appellants, so that in “ringing out,” as it is called, or settling and adjusting the differences in price, they were obliged, under the rules of the Exchange, to pay Kent & Co. $950; and in like manner, on a purchase of 5000 bushels of wheat from the Culver Commission Company, under like authority, they were compelled to pay said last named company $350. These three payments, aggregating $2375, is the sum that appellants insist they have the right to charge appellees on final settlement and adjustment of their accounts, for two reasons: First, because they were compelled to make such payments in order to carry out the instructions of appellees; and secondly, because such sum was in reality a payment to appellees, they being both buyer and seller, and which sum was accounted for to appellees by their brokers, who received the same from appellants.

There was no dispute of the correctness of the ledger balance of $1368.92, due from appellants to appellees. Mr. Samuels, in his testimony, concedes that indebtedness, and that it accrued in previous transactions having no connection with the one in controversy. This sum, therefore, was properly allowed in the judgment rendered by the trial court.

It is apparent the trial court disallowed appellees’ claim to damages under the special counts,—and properly so,—for the reason, among others, there was no evidence of any loss from the failure of appellants to demand margins as a security for the performance of contracts, and because the whole contract of employment was tainted with fraud, and against public policy. No question can arise as to the propriety of the ruling in this respect, for the reason that no cross-errors are assigned. All that appellants can complain of here, is the refusal of the trial court to allow them a credit, under the plea of set-off, for the $2375 they were compelled to pay for appellees in settling the differences in the deals before referred to, and the allowance of $923.75 against appellants for moneys collected by them in settlement of deals entered into by them on behalf of appellees.

The set-off of $2375 claimed by appellants grows out of the fact that appellants, acting as brokers for appellees, and acting under their' instructions, bought 25,000 bushels of wheat on June 27, 1882, at $1.35 per bushel, of parties holding their prior contracts of sale of the same amount of wheat sold for appellees, and to be delivered at the same time, but at a less price. In settling and adjusting these purchases and sales, the one was set off against the other, or balanced, except as to. the difference, which, in this instance, was against appellants, and which they were required to and did pay. It appears that it was the universal custom and usage of the Merchants’ Exchange of St. Louis to adjust differences in such cases, and this is known as “ringing out.” This custom is thus stated and explained by Samuels, one of appellants: “Merchants doing business on ’change frequently have contracts for grain sold and grain purchased, by the same brokers. It is the custom of the brokers with whom we have such contracts, purchased and sold for the same delivery, to settle between ourselves by paying the difference, one way or the other. For instance, if I have wheat sold at $1.20, and afterwards buy the same commodity of the same broker at $1.25, the custom is to settle these transactions by paying the difference in price. In that Way Samuels & Sons settled for 25,000 bushels of the 40,000' bought on June 27, for Oliver’s account, at $1.35.” Oliver is shown to have been upon the floor of the Exchange nearly every day in June, 1882, and was familiar with the particular usages and customs of that board. Appellants, dealing in that market, were necessarily required to conform to the general usages and customs thereof. A person dealing at a particular market will he taken to have dealt according to the known general custom and usage of that market, and if he employs another to act for him in buying or selling at such market, he will be held as intending that the business should be conducted according to such general usage and custom of such market; and this has been held to be the rule whether he in fact knows of the custom or not. Bailey v. Bensley, 87 Ill. 556; Doane et al. v. Dunham, 79 id. 131; Lyons et al. v. Culbertson et al. 83 id. 33; Lonergan v. Stewart, 55 id. 44; Home Ins. Co. v. Favorite, 46 id. 263; Lawson on Usages, 47, 284-287.

If, in executing the instructions of their principals, it became necessary for appellants to pay out money to adjust differences, they, if guilty of no fraud or violation of law, will be entitled to be reimbursed by their principals for their outlay. The principal is bound to indemnify his agent or broker for losses incurred in executing the principal’s order. Wharton on Agency, sec. 240; Story on Agency, sec. 239.

If appellants had not aided or assisted appellees in cornering the wheat market, and in manipulating that market for an illegal or fraudulent purpose, so as to enable the latter to control the same for their own profit, and to the injury of all persons having occasion or necessity to purchase such wheat, or had no knowledge of the wrongful and illegal purposes of appellees, there could be no reason why appellees should not be required to indemnify appellants for the moneys they were required to pay to other brokers of appellees,—and such was, as we understand, the ruling of the trial court. Proposition No. 2, asked by the defendants, and held by the court to be the law, is as follows:

“Even if it appear that plaintiffs are precluded from recovering in this action, because the transactions on which the alleged balance is sought by plaintiffs were made by plaintiffs in furtherance of their (plaintiffs’) operations in producing what is known as a ‘corner’ in the market for wheat in St. Louis, in June, 1882, if it also appear that defendants were not knowingly parties to such unlawful purpose of plaintiffs, and had no interest in said operations further than the earning of their commissions in the purchases and sales made by them, then defendants are not precluded from recovering, on their counter-claim, such sum as may be proven to be due them for expenses and losses incurred by them, and commissions earned.”

The same principle was substantially held in the third proposition also asked by the defendants. The court, however, refused propositions Nos. 5 and 7, asked by the defendants, as follows:

“5. If it appear, from the evidence, that defendants, in executing plaintiffs’ orders to purchase wheat on the floor of the Merchants’ Exchange of St. Louis, for June delivery, on June 27, 1882, made such contracts of purchase in their own names, under customs of said Exchange, from certain other commission merchants, who were also selling in their own names, but really executing the orders of plaintiffs to sell, and that defendants settled their contracts of purchase with their prior contracts of sale of the same commodity, at lower prices for same delivery, by paying the differences thereon; and if it further appear that such prior contracts of sale had been made to said other commission merchants, for plaintiffs, so that the money paid by defendants in settlement was paid to their (plaintiffs’) agents, for plaintiffs, then the amount so paid, defendants are entitled to charge against plaintiffs in this action.
“7. If it appear, from the evidence, that plaintiffs instructed defendants, as their agents, to buy about 40,000 bushels of No. 2 red winter wheat on the floor of the Merchants’ Exchange of St. Louis, on June 27, 1882, deliverable during the month of June, 1882, at $1.35 per bushel, such purchases to be in defendants’ name, but for account of plaintiffs, and according to the customs, rules and usages then prevailing in said Merchants’ Exchange; and that defendants did, in executing such orders and instructions, on that day make such contract to purchase of such commodity for such delivery at said price of $1.35 per bushel, as follows: from D. B. Francis 10,000 bushels, from E. A. Kent & Co. 10,000 bushels, and from the Culver Commission Company 5000 bushels; and that said D. B. Francis, E. A. Kent & Co., and the Culver Commission Company were also brokers doing business in said Merchants’ Exchange, and, in making such contracts of sale to defendants, were in fact acting as the brokers and agents of plaintiffs, and said contracts of sale were in fact made by them for account of plaintiffs; and that prior to said June 27, 1882, defendants had made contracts for the sale of the like commodity for the same delivery in the same market, and according to the same customs, rules and usages, as follows : to said D. B. Francis 10,000 bushels at $1.24J per bushel, to said E. A. Kent & Co. 5000 bushels at $1.25 and another 5000 bushels at $1.26, and to the said Culver Commission Company 5000 bushels at $1.28 per bushel, all of which contracts to sell were pending and unperformed at the time of the making of said contracts to purchase by defendants, on said June 27,1882; and that shortly after June 27, 1882, and in accordance with the rule's, usages and customs of said Merchants’ Exchange, defendants settled and adjusted with said other brokers their respective purchase and sale contracts aforesaid, by defendants actually paying to said other brokers, respectively, the differences between $1.35 per bushel and the respective prices per bushel at which defendants had so contracted to sell to said brokers, respectively; and that upon the final adjustment of said contracts, defendants sustained losses so growing out of executing such orders and instructions of plaintiffs to make such contracts of purchase at $1.35 per bushel, then the defendants are entitled, in this action, to credit, as-against any claim of plaintiffs sued for in this action, such amount as the evidence shall show that defendants may have so lost.”

From the propositions held by the court, and the facts of the case to which they are applicable, it is evident that propositions Nos. 5 and 7, above quoted, were refused by the court for the reason that they omitted the important consideration, as to whether or not appellants, in settling such differences and making such payments, were not knowingly aiding and assisting appellees in carrying out their scheme of controlling the market. That being so, the trial court must necessarily have found, from the evidence, that appellees were engaged in an unlawful undertaking, and that appellants were aiding and assisting its consummation, with knowledge of the illegal purpose' of their engagement. The Appellate Court affirmed the judgment of the Superior Court, and made no special finding of fact, and it must therefore be held to have found the facts the same as the trial court found them. The finding that appellants were guilty of knowingly aiding appellees in an unlawful transaction, necessarily finds that the principal who employed them, and whose instructions they were carrying out, was also knowingly engaged in an illegal transaction. When the facts are admitted, or are found and established from the evidence, the law determines the result which is to follow. If the fact is found that a certain transaction, together with the means and appliances resorted to to consummate it, is illegal, as against public policy, it will follow that all parties participating therein, with knowledge of its character, whether principals or agents, will be alike guilty, and the result will be, that none of them can legally assert any right growing out of the illegal transaction. To say, in such a case, that the agent employed to aid his principal in an illegal enterprise can not recover of his principal for services or money advanced in execution of the illegal purpose, or under his employment, is a correct statement of the law, but the like rule is equally applicable to th'e principal as to the agent. The court can not say, as a matter of law, that the principal may recover of the agent, and not the agent of the principal. The principal, in such case, can not recover money he has advanced to the agent to be used by him for such illegal purpose. Nor will the law aid the principal to recover of the agent money received by him in pursuance of his employment, or arising out of the illegal transactions.

We are aware of the rule that this court can not determine questions of fact, but must accept the finding of the Appellate Court as final and conclusive. It is undoubtedly the rule that it will be presumed the law was correctly applied to the facts by the court, unless the record affirmatively shows to the contrary. (Tibballs v. Libby, 97 Ill. 552; Montgomery v. Black et al. 124 id. 57.) Here, however, propositions of law were submitted which clearly indicate the finding of the court upon the questions of fact. Under proposition No. 2, it would have been the duty of the court to have found in favor of the defendants, had not the transaction out of which the set-off arose been tainted with the illegal and fraudulent manipulation of the market. We do not decide the facts in this case, but act on the finding of the Appellate Court as to the ultimate fact, which is, that the defendants can not recover such set-off account, because the transaction in which they advanced money for the plaintiffs was illegal and against public policy. It is our duty to pronounce the law applicable to the state of facts thus found. That court having found that the object and purpose of the employment of appellants by appellees, and the transactions in which they were engaged, were illegal, we but apply the law, as that court should have done, and refuse to aid either of the offending parties, and leave them in the position where their illegal acts have placed them.

There is no serious question of the illegal purpose for which appellants were employed. It was to give appellees control of the wheat market. They employed a large number of brokers of the city to co-operate with appellants secretly, and to buy up all the wheat actually in market, and at the same time procure contracts for the sale and future delivery of large quantities of such wheat, which they knew could not be had in the market. The witness J. 0. Ewald, at one time president of the Merchants’' Exchange and a member of it, says: “By ‘cornering the market, ’ I mean when parties have contracts 'on hand for a greater amount than the sellers have cash grain to deliver. There was a greater amount of contracts than cash grain to deliver. The supply of cash wheat at that time in the market was owned entirely by Oliver. * * * I arrived at the conclusion that the market was cornered, as above stated, because I knew that a great many owed wheat, at the time, to Oliver and his brokers, that could not deliver it. It wasn’t for sale on the market, to deliver on the contracts to Oliver. This was occasioned from the fact that Oliver and his brokers had the wheat due them, and also owned the cash wheat at the time, and those who owed the wheat 'could not buy it to deliver it. Wheat could not be had at current prices at that time. I know that Oliver had all the cash wheat, from the fact that I had some for him myself, and from the fact that others held it for him,. and I know it from the fact that he told me so.”

Public policy will not permit appellants to recover for the money advanced by them in the illegal business of appellees, nor will the law give an action to appellees to recover from appellants moneys paid to them by other parties in the prosecution of such illegal enterprise. Ex turpi causa, non oritur actio. The enhancement of the price of an article of prime necessity, such as wheat or other articles necessary for food, for purposes of extortion, is against public policy. (Fuller v. Dane, 18 Pick. 472; DeWitt v. Brisbane, 16 N. Y. 508.) “Combinations whose object is to create what are known as ‘corners’ in the market, or to control the traffic in any staple which is a popular necessity, or to enhance the price thereof, or to withhold the same from the market, are illegal.” (Greenhood on Public Policy, 642; Wright v. Crabb, 78 Ind. 487; Craft v. McConoughy, 79 Ill. 346.) Such a transaction, if had in this State, would be void, as being in contravention of the Criminal Code. Sec. 130, chap. 38; Schneider et al. v. Turner, ante, p. 28.

An agreement to make a corner in stock, by buying it up so as to control the market, and then purchasing for future delivery, is illegal, and a party thereto whose funds have been used, by his consent, in carrying out the agreement, can not recover the same back. (Sampson v. Shaw, 101 Mass. 145.) So it has been held that one who loans or advances money to be used for the purpose of making a corner in wheat, can not recover. (Lehman v. Leavitt, 46 Mich. 447.) So, also, money paid in furtherance of an illegal transaction or purpose can not be recovered by the party advancing the same. Ball v. Gilbert, 12 Metc. 397; Dixon v. Olmstead, 9 Vt. 310; Wheeler v. Russell, 17 Mass. 258; The People v. Fish, 14 Wend. 9.

When the employment of an agent relates to the performance of an immoral or illegal act,—it is said by Wharton in his work on Agency, (sec. 25,)—neither party can make the contract the basis of a suit against the other. Advances for illegal purposes fall within the same rule, and can not be recovered by the principal of the agent, or the agent of the principal. (Id. sec. 319.) It follows, therefore, that if one party can not maintain an action in respect of matters growing out of his employment, on account of its being illegal or contrary to public policy, neither will an action lie against him by one participating in the illegal transaction conducted in pursuance of such employment. It would seem self-evident that if the agent who merely aids the principal in the prosecution of an illegal business can not recover for services or money advanced by him in the conduct of the business, the master or principal should not be permitted to recover against the agent for moneys received by him in the course of such business. •

If there was no question of illegality involved in this transaction, then, on a settlement, the agent clearly should be allowed for his reasonable commissions, and the amount of money necessarily and properly advanced by him for his principal, and should be charged with the moneys received in the course of the business, belonging to the principal. 'In other words, in this ease appellants should charge appellees $2475, being the money actually paid out by them for their principal, and their commission, and credit them with the ledger account $1368.92, and with the sum $923.75 moneys collected for appellees,—which would leave a balance due appellants of $182.83. But the contract of employment, and the transaction in which they were' engaged, being against public policy, the contract, so far as it remains executory, can not be enforced by either party; nor can either party maintain an action against the other for any right growing out of such contract, or of the illegal transaction in which they were engaged. The law simply refuses its assistance to either party.

We are of opinion that the trial court erred in including within its judgment the item of $923.75 for moneys collected by appellants in the course of the business of appellees, and consequently the Appellate Court erred in affirming that judgment.

The judgments of the Appellate Court and Superior Court are reversed, and the cause remanded to the latter court for further proceedings.

Judgment reversed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here.


author: Mr. Justice Baker

text:
    A. D. Juilliard & Co. v. Lewis May, Assignee.

      Filed at Ottawa

      October 31, 1889.

    1. Attachment—interpleader—the statute to be liberally construed. The statutory interpleader to try the title to property seized by attachment, is a substantial and valuable statutory right, and as it tends to prevent multiplicity of suits, the claimant of the property who asserts such right should not be deprived of it on merely technical grounds.
    2. Same—time of filing interpleader—waiver. The statute allowing an interpleader as to the right of property in an attachment suit, does not, in terms, say that it shall be tried, or even interposed, before judgment in the original attachment suit. But the better practice is, first to settle the matter of the interpleader, and then render judgment upon the attachment, or, if such judgment has already been taken, to open it for the purpose of permitting the interpleader.
    3. The remedy by interpleader lies in respect to both personal and real estate, but it must be interposed while the attachment suit is still in fieri, which is before or during the term at which final judgment is entered against the defendant in attachment.
    4. If an interpleader is not filed in apt time in an attachment suit, the plaintiff should move to strike it from the files. If, however, he demur's to the pleading, this will amount to a waiver of the objection that it was filed too late.
    5. Same—interpleader after judgment—rights protected. Where the issue formed upon an interpleader is found for the claimant after judgment against the defendant in the attachment and the issue of special execution, the court will have ample power to see that its process is not abused by making it the means of selling the property of one for the debt of another for which the former is not legally liable. The court can protect the -successful claimant in his rights of property without vacating or changing the judgment rendered at a prior term against the defendant in attachment.
    6. A claimant of property attached is not bound by the judgment against the defendant in the attachment, ordering a sale of the property. He stands in the attitude of a stranger to the record.
    7. Same—what lien enforced—the lien of the judgment or that of the attachment. It is only the judgment lien, and not the attachment lien, that can be enforced against the property attached; but the latter still remains effectual for the purpose of preserving a priority of lien, and may be referred to for the purpose of identification.
    8. Same—continuance. The statute contemplates a speedy trial of an interpleader, and yet it gives either party a right of continuance for good cause shown.
    9. Insolvent debtors—foreign assignment—how far enforceable, here. A voluntary assignment made in another State by a non-resident debtor, executed'in conformity with our laws in respect to the conveyance of property, but which is inconsistent, in substantial respects, with our statute relating to assignments, will not be enforced here to the detriment of our citizens; but for all other purposes, if the assignment is valid by the lex loci, it will be carried fully into effect.
    10. The provision of our statute prohibiting preferences in assignments by debtors, applies only to assignments made in this State, and not to th ose made in other States; and a non-resident debtor may execute a voluntary assignment, with or without preferences, as he may see fit, so long as creditors in this State are not injuriously affected thereby.
    11. Conflict of laws—presumption. In the absence of any allegation or proof of a statute of another State, it must be presumed that the common law obtains there, or else that the laws of such State are similar to the laws of this State.
    Writ of Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Consider H. Willett, for the plaintiffs in error:
    The rule of comity is never extended to real estate. Burrill on Assignments, (4th ed.) sec. 308; Westlake on Private International Law, 177; Wharton on Com. Am. Law, see. 299; Insurance Co. v. Commercial Bank, 68 Ill. 348; Gardner v. Nat. Bank, 95 id. 298; Gross v. Bunn, 10 Neb. 217; Hutcheson v. Peshine, 16 N. J. Eq. 167; Selkrig v. Davies, 2 Dowl. 230; Rogers v. Allen, 3 Ohio, 488; Osborn v. Adam's, 18 Pick. 245; Jenks v. Ludden, 34 Minn. 482; Oakey v. Bennett, 11 How. 33; Story on Conflict of Laws, sec. 448; Wharton on Conflict of Laws, sec. 273.
    Comity never requires one State to enforce, as to personal property, the laws of another that are contrary to its own public policy. Rev. Stat. chap. 72, sec. 49; Wharton on Conflict of Laws, (2d ed.) see. 490, and cases cited; LeChevalier v. Lynch,
      1 Doug. 170; Warner v. Jaffray, 96 N. Y. 246; Guillander v. Howell, 35 id. 657; Faulkner v. Hyman, 142 Mass. 53 ; Heyer v. Alexander, 108 Ill. 385; Rhawn v. Pearce, 110 id. 350.
    Consideration and consent: Faulkner v. Hyman, 142 Mass. 53; Swan v. Crafts, 124 id. 453; O’Hara v. Jones, 46 Ill. 292.
    . Residence: U. S. Const, art. 4, sec. 2, clause 1; Story on Conflict of Laws, (3d ed.) p. 47; 2 Kent’s Com. (13th ed.) p. 461; Paine v. Lester, 44 Conn. 196; Upton v. Hubbard, 28 id. 275; Insurance Co. v. Commercial Bank, 68 Ill. 348; Jenks v. Hadden, 34 Minn. 482; Gardner v. iVai. Bank, 95 Ill. 298; Heyer v. Alexander, 108 id. 385; Bank v. Lascombe, 84 N. Y. 367; Kidder v. Tvfts, 48 N. H. 121.
    The New York statutes not being properly pleaded, can not be considered. Pearce v. Rhawn, 13 Bradw. 637; Railroad Co. v. Shires, 108 Ill. 617; Greenleaf on Evidence, (13th ed.) sec. 489.
    Equity among the creditors of insolvent debtors is the declared legislative policy of Illinois, and the deed of assignment, by attempting to violate and overthrow such policy by giving preferences, is void. Rev. Stat. chap. 72; Maberry v. Shisler, 1 Harr. 349; Zipcey v. Thompson, 1 Gray, 243; Faulkner v. Hyman, 142 Mass. 53; Pierce v. O’Brian, 129 id. 314; Johnson v. Parker, 4 Bush, 149; Richardson v. Rogers, 45 Mich. 592; Claflin v. Iseman, 23 S. C. (N. S.) 416.
    As the assignee gave no bond or inventory, etc., and attempted no compliance with our law concerning insolvent debtors, the deed of assignment was invalid. Rev. Stat. chap. 10, sec. 3; Johnson v. Parker, 4 Bush, 149; Philson v. Barnes, 50 Pa. St. 230; Juliard v. Rathbone, 39 N. Y. 369; Bartlett v. Teah, 1 Fed. Rep. 768.
    The attachment merged in the judgment, and the order of the court quashing it was a nullity. 1 Wade on Attachments, sec. 29, p. 69; Drake on Attachments, (4th ed.) sec. 224 a; Bagley v. Ward, 37 Cal. 121; Lynch v. Crary, 52 N. Y. 181; Waples on Attachments, p. 582.

      After the judgment in attachment was rendered, and after the term of court had expired without vacating the judgment, it was too late to interplead, as to the lands attached, for want of jurisdiction. Rev. Stat. chap. 11, sec. 29; Heyer v. Alexander, 108 Ill. 385; Rhawn v. Pierce, 110 id. 353.
    Mr. J. S. Norton, for the defendant in error:
    It is sufficient for our purpose that this court has, after full examination of the cases in Illinois and elsewhere, reached the following conclusions:
    That a non-resident debtor may, by voluntary deed, assign his land situated in Illinois, for the benefit of his creditors, except as against the claims of attaching creditors resident in Elinois. Heyer v. Alexander, 108 Ill. 385.
    That the case of Rhawn v. Pierce, 110 Ill. 350, is not opposed to this doctrine, being a case of statutory or involuntary assignment.
    That by the common law in this State, a debtor had the right to prefer one creditor over another, if done in good faith. Cooper v. McClun, 16 Ill. 435.
    That the Illinois statute, in prohibiting preferences in assignments, is limited to assignments made in this State, and does not apply to this case, either as a prohibition or as the-expression of the policy of this State. Bentley v. Whittemore, 19 N. J. Eq. 462; Burrill on Assignments, sec. 310, and cases cited, to which we add, Female Academy v. Sullivan, 116 Ill. 375, and Cowell v. Springs Co. 100 U. S. 55.
    That the provision of the Federal constitution, that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” gives to nonresidents the right to resort to our courts as suitors, but does not entitle them to the preference given to residents, because residents. (Heyer v. Alexander, 108 Ill. 385.) This proposition, on which the court did not deem it necessary to cite authorities, is supported by Chaffee v. Fourth Nat. Bank, 71 Me. 514; Connor v. Elliott, 18 How. 591; McCready v. Virginia, 94 U. S. 391; Coryell v. Coryell, 4 Wash. C. Ct. 371.
   Mr. Justice Baker

delivered the opinion of the Court:

The plaintiffs in error, A. D. Juilliard & Co., brought this attachment suit on the 19th of February, 1886, in the Superior Court of Cook county, against Halsted, Haines & Co., upon a judgment for $5536, rendered in the Supreme Court of the city and county of New York. The writ was levied on real estate in the city of Chicago, and was served upon garnishees. The garnishees answered on the 9th day of April, 1886, and denied any indebtedness to the defendants in attachment, and their answer was not traversed or any issue formed thereon. The defendants were, on the 10th day of April, 1886, upon proof of service by publication, defaulted, and a judgment rendered against them for $6034.77 and costs, and it was ordered that they “have execution therefor against the property attached herein.” On the 26th day of April, 1886, and at the same term of court, Lewis May, the defendant in error, filed in the suit his interpleader, in which he alleged that the defendants in the attachment, on July 12,1884, being insolvent, made an assignment to him, which “was "made, executed and acknowledged under and in conformity to the laws of the State of New York relating to general assignments by debtors for the benefit of their creditors,” which conveyed to him, “all and singular, their co-partnership and individual estate, real and personal, goods, chattels, effects, credits, choses in action, and property of every name and kind,” in trust for the uses and purposes set forth in the deed of assignment. The interpleader further alleged, among other things, the deed of assignment was duly recorded in the recorder’s office of Cook county, in the State of Illinois, on July 28, 1884, that plaintiffs in error had actual notice of said deed of assignment and of the terms and provisions thereof prior to the commencement of the attachment suit, and that all the lands levied upon and the debts garnisheed were, by operation of said deed, conveyed • £ . and transferred to and vested in him, the said May, assignee, in trust. The interpleader also averred that all of the plaintiffs and defendants in attachment were, at the time of the assignment, and still are, residents of the State of New York, and that the real estate levied upon, and credits and effects' attached and seized, were the property of him, said May, as assignee. The deed of assignment is referred to in and attached to the interpleader, and it shows preferred creditors to the extent of $425,000. The plaintiffs in error filed a demurrer to the interpleader on the 28th of June, 1886, and on the 7th of February, 1887, the demurrer was overruled, and it was ordered “that all property attached be and is hereby released, and all garnishees discharged.” And on the 18th of February, 1887, a further order was made, directing the sheriff to forthwith return to the clerk of the court the special execution issued upon the judgment in attachment. The present writ of error questions the propriety of the proceedings of the Superior Court subsequent to the entry of the judgment for $6034.77, and the awarding of special execution thereon.

Section 29 of the Attachment act provides: “In all cases of attachment, any person, other than the defendant, claiming the property attached, may interplead, verifying his plea by affidavit, without giving bail; but the property attached shall not thereby be replevied, and the court shall immediately (unless good cause be shown by either party for a continuance) direct a jury to be impaneled, to inquire into the right of property.” The interpleader thus provided for is a purely statutory remedy, and very different from the bill of inter-pleader of a court of equity, where the person asking the in-terpleading has no interest in the subject matter, and occupies the position of a mere stakeholder. At common law, also, there was an interpleader allowed, at his request,-to a defendant in several suits brought for or in respect to the same thing, to ascertain who hath right to his action,—as, where two brought several detinues for one thing, or one brought detinue and the other trover. (3 Jacobs’ Law Die. title “Interpleader.”) In such cases the interpleading was between those who brought the respective suits, and, manifestly, there could, in the nature of things, be no judgments in the principal suits until the result of the interpleading was known. So, at common law, to interplead was to discuss or try, before the principal cause could be determined, a point incidentally happening.

There is not, however, in the statutory interpleader the absolute necessity there is in the common law interpleader that it should be disposed of prior to the determination of the principal suit. The statute does not, in terms, provide it shall be tried, or even interposed, before judgment is entered upon the controversy between the plaintiff and the defendant in the attachment, but it is the usual and better practice to first settle the matter of the interpleader, and then render judgment upon the attachment; or, if such judgment has already been taken, to open it for the purpose of permitting the interpleader. But the statutory interpleader to try the title to the property seized upon attachment, without giving bail or security, is a substantial and valuable statutory right, and it tends to prevent multiplicity of suits, and the claimant of the property who asserts such' right should not be deprived of it on a mere technical ground, and where there is no pressing necessity for so doing. Judgment may be taken at a very early day in a term of court against a defendant in attachment, either hy default or upon his confession, and awarding a sale of the attached property; and it should not be left, in such case, a matter of judicial discretion whether or not the claimant of such property should be allowed the right given him by the statute. The statute contemplates a speedy trial upon an interpleader, and yet it gives to either party a right of continuance for good cause shown. Cases may frequently arise where the plaintiff will be entitled to a personal judgment and general execution against the defendant, or where only a portion of the attached property is claimed by the interpleader, or both, and where it, would be a great hardship and wrong to compel the plaintiff to postpone, and perhaps eventually lose, all benefits he might derive from a general fi.fa., and forego until a future and uncertain day the use and benefit of the proceeds of the attached property not claimed by a third person, or else abandon all claim upon that portion of such property which is so claimed.

There is no legal inconsistency and incongruity that the court should render judgment against an attachment defendant, and order a sale of the property levied upon by the writ, and at a subsequent time or term adjudge such property to belong to a person other than such defendant, and order its release. Such other person would not be bound by the judgment against the defendant in attachment ordering such sale,, and would stand in the attitude of a stranger to the record-In Samuel v. Agnew, Sheriff, etc. 80 Ill. 553, the goods and chattels had been levied upon both by the attachment writ and by a special execution issued on the judgment in the suit,, and it was held that a person whose goods had been improperly seized under a writ of, attachment, and who was not a, defendant to the attachment suit, was not concluded by the-judgment in the attachment, and might replevy the same from the officer at any time while they remained in his possession, and even after the rendition of such judgment and the levy of the special execution based thereon. In the case before us, defendant in error did not intervene in the attachment suit until sixteen days after the judgment against the defendant in attachment, and even if he had filed his interpleader before-such judgment, that act would not have made him a party to-the controversy between the plaintiffs and defendants in the attachment or to the judgment therein,—at least, not to the-extent he would be bound and estopped by the result reached in regard to the matters involved only in such controversy-

The statute giving the remedy by interpleader is applicable alike to lands and to personal property. (Williams v. Van- Meter, 19 Ill. 293; City Ins. Co. v. Commercial Bank, 68 id. 351.) Where the property attached is personal property, a person, other than the defendant, claiming it, has a remedy either by replevin or by interpleader; but where the subject of the levy is real estate, of course replevin does not lie. We think that, in analogy to replevin in respect to personal property, which lies after judgment rendered against the defendant in attachment awarding sale, the remedy by interpleader should be held to lie, in respect to both personal and real property, after such judgment, but that, in the nature of things and from the necessity of the case, it would have to be interposed while the attachment suit was still in fieri, which would be during or before the term at which final judgment is entered against the defendant in the attachment.

We do not regard the suggestion of counsel, that the attachment lien was merged in the judgment lien, as of material importance. It is only the judgment lien, and not the attachment lien, that can be enforced against the property attached, but we understand that the latter not only remains still effectual for the purpose of preserving a priority of lien, but that it may be referred to for purposes of identification. The issue, and only issue, there can be upon the interpleader, is upon the affirmative claim of property alleged' therein, and when that is decided in favor of the claimant, the court has ample power to see that- its own process is not abused by making it the means of selling his property to pay the indebtedness of another for which he is not legally liable. It is fundamental, that no person shall be deprived of property without due process of law, and the court can protect the claimant in the rights of property guaranteed him, without assuming to vacate or change the judgment rendered at a prior term against the defendant in attachment.

Our conclusion, then, is, that the interpleader in this case was presented in apt time, and it is immaterial that the final judgment of the court thereon was not rendered until a subsequent term of the court. Besides this, even if plaintiffs in error had a right to object to the interpleader on the ground it was filed after the rendition of the judgment in attachment, yet they must be considered as having waived that right. The proper course for them to have pursued, in order to raise that question, was to move to strike the interpleader from the files. But they did not do this. They recognized it' as a legitimate pleading, interposed in apt time, by demurring to it, 'and thereby waiving all objection that it came too late, and submitted to the court the merits of the controversy it sought to raise upon an issue of law as to the legal sufficiency of the matter alleged in the plea. This must be regarded as an election to waive any claim such as is here made.

The important and controlling questions that arise in passing upon the sufficiency of the claim of property set forth in the interpleader do not require any discussion on our part, as they were fully settled by the decision of the court in May v. First Nat. Bank, 122 Ill. 551, where the title of this same assignee, and under the same deed of assignment, was under consideration. It was there held, that a voluntary assignment made in another State by a non-resident debtor, executed in conformity with our laws in respect to the conveyance of property, but which is inconsistent, in substantial respects, witji our statute relating to assignments, will not be enforced here to the detriment of our citizens, but that for all other purposes, if the assignment is valid by the lex loci, it will be carried fully into effect. Also, that the provision of our statute prohibiting all preferences in assignments by debtor's, applies only to those made in this State, and not to those made in other States; and that non-resident debtors may execute voluntary assignments, with or without preferences, as they may see fit, so long as creditors in this State are not injuriously affected thereby. See, also, Lipman v. Link, 20 App. Ct. 359.

It is urged that the interplea simply makes the bald assertion the deed of assignment was made in conformity with the laws of New York, and that such allegation is only a conclusion of law, and that it does not set forth, either literally or in substance, the statutory provisions of New York, to show that under the law of that State a deed of assignment with preferences is valid. The interpleader does not purport to base the right of property in defendant in error upon a statute of New York, but upon a deed of assignment sufficient, under our law, to convey and transfer the property. In the absence of any allegation or proof of a statute, we must presume either that the common law obtains in New York, or else that the laws of that" State are similar to the laws which prevail in this State, where the action was tried. If we assume the presumption first suggested, then it is sufficient to say, that in Cooper v. McClun, 16 Ill. 435, and in Howell v. Edgar, 3 Scam. 417, this court held, that, by the common law, a failing debtor, in making an assignment, has a right to prefer one creditor over another, when he does so in good faith. If, on the other hand, we assume the law of New York to be like our own, then the provisions for the payment of some debts and liabilities in preference to others, are void, and the assignment stands as a conveyance of property for the benefit, pro rata, of all the creditors.

It is finally insisted, that in any event the order dismissing the garnishees was erroneous. At the submission of the case to this court, the garnishees who were discharged were not brought before the court by the service of process, and they have not voluntarily submitted to the jurisdiction of the court, and we must therefore decline to pass upon the question of the legality of their discharge and the propriety of the order dismissing them out of court.

We find no error in the orders overruling the demurrer to the interpleader, and releasing the real estate that had been attached, and directing the sheriff to return the special execution, and they are affirmed.

Order affirmed.


author: Mr. Chief Justice Shope

text:
    John Steffy v. The People of the State of Illinois.

      Filed at Mt.Vernon

      October 31, 1889.

    1. Criminal law—“considerable provocation”—in what it may consist. Mere words, however opprobrious, can not be said to constitute the “considerable provocation” contemplated by the statute relating to assaults to murder, and to inflict bodily harm. If, therefore, words used will not reduce a homicide from murder to manslaughter, they will not constitute such a provocation as to destroy the intent necessary to the commission of an assault with intent to murder.
    2. Same—malice—being armed with a deadly weapon—as evidence of malice. On the trial of one for an assault with intent to murder, the prpof showed that there was a dispute between the defendant and the prosecuting witness (the person assaulted) concerning a house, near where the latter resided, and that the defendant came to the house of the prosecutor armed with a deadly weapon, there being no satisfactory reason given for his so going there, and no danger shown to his person or property. The parties got into an angry altercation, when the defendant fired his pistol at the prosecuting witness: Held, that the bare fact, unexplained, that the defendant was, without any excuse therefor, armed with a deadly weapon, was of itself a strong circumstance from which the jury might have found that he was actuated by malice.
    3. Bill of exceptions—when necessary—exceptions. Exceptions to the ruling of the court can not be preserved in the record by the entries and recitals of the clerk. This can be done only by bill of exceptions. When no exception is taken to the order of the court overruling a party’s motion for a new trial, he will be in no position to question the sufficiency of the evidence to sustain the verdict.
    4. If no exceptions are taken, and preserved in a bill of exceptions, to the giving or refusing of instructions, the correctness of the rulings of the court thereon can not be questioned on error or appeal.
    5. New trial—verdict against the evidence—in a criminal case. To justify this court in reversing a judgment of conviction in a. criminal case, on the ground that the evidence was insufficient, it must appear that the finding of the jury is not sustained by the evidence, or that it is palpably contrary to the decided weight of the evidence.
    Wbit of Erbob to the Circuit Court of Crawford county; the Hon. C. C. Boggs, Judge, presiding.

      Messrs. Callahan, Jones & Lowe, and Messrs. Parker & Crowley, for the plaintiff in error.
    Mr. George Hunt, Attorney General, and Mr. E. E. New-lin, State’s Attorney, for the People.
   Mr. Chief Justice Shope

delivered the opinion of the Court t

John Steffy was indicted at the September term, 1888, of the Crawford circuit court, for an assault upon Sylvester Pink-staff with intent to murder. The cause was tried at the March term, 1889, resulting in a verdict finding the defendant guilty as charged, and fixing his punishment at confinement in the penitentiary for one year. Motion for a new trial was overruled, and judgment on the verdict.

It is urged, first, as ground of reversal, that the verdict of the jury is contrary to the evidence. Whether the evidence-warranted the verdict was a question of fact peculiarly within the province of the jury to determine, and great weight is to-be given to their finding. Courts are reluctant to substitute-' their opinion for that of the jury upon controverted questions of fact. To justify this court in reversing on the ground that the evidence was insufficient, it must appear that the finding of the jury is not sustained by the evidence, or that it is palpably contrary to the decided weight of the evidence. (Gainey v. The People, 97 Ill. 270; Hanrahan v. The People, 91 id.. 142; Rogers v. The People, 98 id. 581.) In the first case-cited this court say: “It is only when this court is able to-say, from a careful consideration of the whole of the testimony, that there is clearly reasonable and well-founded doubt of the-guilt of the accused, that it will interfere on the ground the-evidence does not support the verdict,” citing Rafferty v. The People, 72 Ill. 37.

It appears that both Steffy and Pinkstaff claimed possession of a house, and that a dispute had existed- between them for over a year before the alleged assault. On the 18th of August, 1888, Steffy went to the house of Pinkstaff, (not, however, the one in dispute,) and called Pinkstaff out, and informed him that he, Steffy, was going to nail up the house in dispute. After making some inquiries about the sashes to two of the windows, he told Pinkstaff to take his stove out of the house—that he was going to nail it up. The evidence tends to show that he had already nailed up the windows and doors. At the time he was talking to Pinkstaff, the defendant had a hatchet or hammer in his left hand, his coat hanging on his left arm, and his right hand under his coat, in which, he states, he had a revolver. Pinkstaff told the defendant he had better let the stove alone, and ordered him off his premises, for the reason, as he alleges, the defendant was trying to quarrel with him. The defendant at that time was near the gate leading to Pink-staff’s house, but as Pinkstaff came out, “backed out a piece down the lane in front of the house and stopped.” Pinkstaff’s wife came out also, and placed herself between the two men, and said to defendant, “Give up what you have got, John, and fight fair, if you must fight.” The defendant replied, “May be I will.” Witnesses for the People say that the defendant then drew his revolver, which is, however, denied by the defendant; that Pinkstaff stepped a little to one side, and picked up a small stick of stove-wood, and started towards the defendant. When he had got within about twenty-five feet of the defendant, the defendant commanded him to “halt.” Pinkstaff, his wife, and Mrs. Landreth, who are all shown to have been present, testified that Pinkstaff did halt, but that the defendant, notwithstanding, immediately fired his revolver at Pinkstaff. This condition of affairs is denied by the defendant alone, who says that Pinkstaff continued to advance, and had approached within ten feet of him before he fired the shot. The evidence also tends' to show that the defendant again drew up his pistol and pointed it at Pinkstaff, but, for some reason unexplained, did not fire. The testimony of Pinkstaff, in most of its material facts, is corroborated by that of his wife and Mrs. Landreth.

It can not be said that the verdict is clearly against the weight of the evidence. No satisfactory reason is shown why the defendant should go to the house of Pinkstaff armed with a deadly weapon, provoke a quarrel, and refuse to leave when ordered to do so. The bare fact, unexplained, that the defendant, without any excuse therefor, in a time of peace, and when menaced with no danger either to his person or property, was armed with a dangerous and deadly weapon, of itself was a strong circumstance from which the jury might be justified in finding the defendant was actuated by premeditated malice. It looks very much as if his visit was made with the purpose of having a difficulty with Pinkstaff, and that he prepared himself for any emergency that might arise. The evidence was, we think, sufficient to authorize the jury to so believe.

It is said that the jury were not justified in finding there was no considerable provocation for the assault. Mere words can not be said to constitute the considerable'provocation contemplated by the statute. It has been held by this court, that no provocation hy words only, however opprobrious, will.so mitigate intentional killing as to reduce the homicide to manslaughter. (Jackson v. The People, 18 Ill. 269.) If, therefore, in this case, the words used by Pinkstaff would not have reduced the offense, if death had resulted from the assault, from murder to manslaughter, it follows, that such words can not constitute such provocation as would destroy the intent necessary to the commission of the crime charged. But aside from this view, the bill of exceptions fails to show any exception taken by the defendant to the ruling of the circuit court, either in giving, refusing or modifying instructions, or in overruling defendant’s motion for a new trial, or his motion in arrest of judgment. It is true that the clerk recites in the record that exception was taken to the overruling of such motions ; but it has been so repeatedly held that exceptions to the rulings of the court can not be preserved in that way, that the citation of authority would seem unnecessary. Such ex-©options, if taken, must be preserved in a bill of exceptions, if it is desired to have them made parts of the record. 'No exceptions having been taken to the order overruling the motion for a new trial, the plaintiff is in no position to question the sufficiency of the evidence to sustain the verdict.

It is also objected that the court erred in giving certain of the instructions asked on behalf of the People. As we have seen, no exceptions are preserved in this record, if any were taken, to the giving of the instructions complained of, or of any of them, and the defendant can not,, therefore, question their correctness on error. It may, however, properly be said, that we have examined the instructions, and, while some of them are faulty, we are of opinion that when the instructions given are considered together, there is no error of which the defendant can justly complain.«

The judgment of the circuit court must be affirmed.

Judgment affirmed.


author: Per Curiam:

text:
    Anna King, Admx. v. D. W. C. Goodwin.

      Filed at Ottawa

      October 31, 1889.

    Ceeditoe’s Bum— lien upon equitable assets—and herein, of a widow’s award. The general rule is, that the filing of a creditor’s bill, and service of process, create a lien on the equitable assets of the judgment debtor, without an order for an injunction or the appointment of a receiver. This lien can not be impaired by the voluntary assignment ■of the debtor, or by any intervening claim of other creditors.
    2. A judgment creditor filed his bill to reach the debtor’s interest in a co-partnership, or such sum as might, on settlement of the partnership matters, be found coming to him. The debtor died, and his widow was appointed- as administratrix of his estate. The award of the widow was more than the decedent's interest in the partnership, and she claimed a right to have such interest applied on her award : Feld,
      that the creditor’s lien was not divested by the death of his debtor, and that the widow would take only so much as was left after satisfying the lien.
    3. A widow’s claim to her award is against the estate of her deceased husband. If there is no estate, she will have nothing to rely on for its payment, and if the estate is incumbered by a valid lien, the award wiE not set aside the Een.
    4. Receiver—ho Iding in trust. A receiver is a quasi trustee, holding the funds coming to his hands for the benefit of the party who may eventually appear entitled thereto.
    5. Parties—want of parties—-how availed of—in chancery. If the defendant in a creditor’s biU to reach equitable assets in a partnership in the hands of a receiver, wishes to raise the question of the receiver being a necessary party to the biU, it should be raised by demurrer to the biE.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. C. H. & C. B. Wood, and Mr. S. B. King, for the appellant:
    When the court, by its receiver, took charge of the assets of the Montello Granite Company, it held them for the benefit of such parties to the suit found entitled thereto. High on Receivers, sec. 13; Beach on Receivers, sec. 213; Jackson v. Lahee, 114 Ill. 287; Parker v. Browning, 8 Paige, 388; Noe v. Gibson, 7 id. 513; Howell v. Ripley, 10 id. 43.
    We contend that, leaving out of view all of the other defects of appellant’s case, the widow’s award stands superior to his debt. We do not claim that if he had acquired a lien it would have been extinguished by the death of the defendant, but by the allowance of the award. A lien belongs to the remedy, and may be divested at any time. 1 Jones on Liens, secs. 107, 108; Cooley’s Const. Lim. (4th ed.) 351.
    It is the policy of the law to leave the estates of decedents to the probate court. Crain v. Kennedy, 85 Ill. 340 ; Heustis, v. Johnson, 84 id. 61; Freeland v. Dazey, 25 id. 295.

      The Appellate Court holds that the question of diligence does not arise here, because the widow is not a creditor; but this court has held otherwise,—that the widow is a creditor of the estate of her deceased husband in respect to her widow’s award, (Cruce v. Cruce, 21 Ill. 46, Deltzer v. Scheuster, 37 id. 301,) and is entitled to priority over other creditors. Phelps v. Phelps, 72 Ill. 545; Brenner v. Gauch, 85 id. 368.
    The widow’s award is an exemption, (Phelps v. Phelps, supra,) and should be liberally regarded. Recht v. Kelly, 82 Ill. 147.
    The Appellate Court decided that the co-partnership receiver was not a necessary party to the creditor’s suit. This court has held, that even in the ease of a naked trust the trustee must be a party in order that a decree may affect the trust estate, (McGraw v. Bayard, 96 Ill. 146, Bennitt v. Mining Co. 119 id. 9,) and that where a party comes in by amendment, the suit is pending as to him from the date of the amendment, only. Crowl v. Nagle, 86 Ill. 437.
    The Appellate Court, after holding that appellee acquired a lien by the filing of his bill, treats the fund as if it no longer belonged to the King estate, and therefore the widow’s award, being a charge on the estate of the depedent only, does not reach this fund; but it has been settled that a lien is not a title, but a charge, only, and gives no estate. Bispham’s Eq. sec. 354; Gilman v. Brown, 1 Mason, 191; Pomeroy’s Eq. Jur. secs. 165, 166, 1233.
    Mr. S. K. Dow, for the appellee:
    The judgment creditor who first institutes a suit obtains a priority over other creditors, in relation to the property and effects of the defendant, which can not be reached by execution at law. 2 Barb. Ch. Pr. (2d rev. ed.) 553; Lyon v. Robins, 46 Ill. 276; First Nat. Bank v. Gage, 93 id. 172; McCalmont v. Lawrence, 1 Blatchf. 232; Boynton v. Ransom, 1 Clarke, 584; Gordun v. Lowell, 21 Me. 251; Lucas v. Atwood, 2 Stew. 37.

      The lien is not obtained by the return of the execution unsatisfied, but by the commencement of the suit—filing a creditor’s bill, founded upon such return of execution at law. Edmeston v. Hyde, 1 Paige’s Ch. 637; Wakeman v. Groxer, 4 id. 23; Russell v. Leslie, 6 id. 445; Commack v. Johnson, 1 Green’s Ch. 163.
    The filing of a creditor’s bill operates as an attachment of property, effects and equitable interests which can not be levied on at law. It gives to the vigilant creditor a right to priority in payment. The creditor who files the second bill will have the second lien. Corning v. White, 2 Paige’s Ch. 568; Railroad Co. v. Soutter, 13 Wall. 517.
    Upon a creditor’s bill, every species of property belonging to the debtor may be reached and applied to the satisfaction of his debts; and his debts, choses in action and other equitable rights may be assigned or sold under the decree of the court for that purpose. Edmeston v. Hyde, 1 Paige’s Ch. 637; Craig v. Howe, 2 Edw. Ch. 554; Weed v. Pierce, 9 Cow. 722; Congden v. Lee, 3 Edw. Ch. 304; Thompson v. Nixon, id. 547; Brewster v. Powers, 10 Paige’s Ch. 562; Benson v. Leroy, 4 Johns. Ch. 651; Cohen v. Carroll, 5 S. & M. 545; Wagner v. Speck, 3 Ham. 294; Platt v. Judson, 3 Blackf. 235; Demaree v. Driskel, id. 115.
    The lien upon equitable assets, acquired by the bill, is not extinguished by the death of the debtor before the appointment of a receiver, but survives against such assets in the hands of the administrator. Brown v. Nichols, 42 N. Y. 26.
    The receiver’s holding of the co-partnership property of the judgment debtor in this case was a trust. The receiver was the right hand of the court who heard this ease. That court had jurisdiction over its receiver and the co-partnership funds in his hands, at the time of filing this creditor’s bill and final hearing; and we suggest that the receiver, having no personal interest in the co-partnership assets in his hands, was not a necessary party to the suit. Bennitt v. Mining Co. 119 Ill. 9; Willis v. Henderson, 4 Scam. 18.
    Jurisdiction of a court of chancery to apply the property of a defendant," which is beyond the reach of an execution at law, to the satisfaction of the debt due to the judgment creditor, rests upon the ground that the remedy at law is exhausted.
    Upon a creditor’s bill, every species of property belonging to the debtor may be reached and applied to the satisfaction of his debts; and his debts, choses in action and other equitable rights may be assigned or sold under the decree of the court for that purpose. Weed v. Pierce, 9 Cow. 722; Edmes-ton v. Clyde, 1 Paige, 637; Edgall v. Haywood, 3 Atk, 352.
   Per Curiam:

Having duly considered both the oral and printed arguments submitted in this case, and examined the authorities cited in the briefs of counsel, we concur in the conclusion reached by the Appellate Court, the reasons for which are satisfactorily stated in the following opinion by Gabnett, P. J., of that court:

“This is a creditor’s bill, filed June 16,1883, by appellant, against Claude B. King, Anna King, his wife, and Homer N. Hibbard, receiver of the Montello Granite Company, based on a judgment recovered at the April term, 1883, of the Superior Court of Cook county, in favor of appellant and against said Claude B. King, for $1076, and costs. Execution was issued and duly returned unsatisfied.

“The Montello Granite Company was the style of a co-partnership, composed of Claude B. King and James H. Anderson. In a suit to wind up the affairs of that firm, the Superior Court, on the 18th day of October, 1882, appointed H. N. Hibbard receiver of the firm’s assets. At the time the bill in this case was filed, the receiver was proceeding with the duties of his office, and was in possession of the partnership effects. The purpose of the creditor’s bill was to reach King’s interest in the firm’s assets, whatever it might appear to be on final adjustment, and other equitable assets, for the payment of said judgment. The receiver was made a defendant to the creditor’s bill, without leave of the Superior Court. He demurred to the bill, and his demurrer was sustained October 18,1883. King and wife answered, admitting the co-partnership, and stating, among other things, that Claude B. King had no property, or interest in any, except his interest as co-partner in the assets of the Montello Granite Company, in the hands of said receiver. Beplication to the answer was filed October 25, 1883. On November 11, 1884, Claude B. King died, leaving his wife surviving. His death was suggested of record May 25, 1885. His wife, having been appointed ad-ministratrix of his estate by the probate court of Cook county, filed her answer, as administratrix, on July 8, 1885, stating the death of her husband; her appointment and qualification as administratrix; that the deceased left no estate except that involved in the litigation with his partner, Anderson; that all of said property is in the custody of the law, in the hands of a receiver; that it was probable that said estate will be insolvent, and that there would not be more property than enough to pay preferred claims. By her supplemental answer, filed March 12, 1888, she states that the whole personal estate of said Claude B. King had been appraised, and the appraisal approved by the probate court of Cook county, at $277; that the estate is insolvent; that her widow’s award had been fixed at $1975, which she claims should be allowed to her out of any funds in the receiver’s hands coming to the estate, in preference to the claim of appellant. On the 6th of November, 1885, the receiver was made a party defendant to the bill by leave of the court, and filed his answer November 17, 1885, alleging, in substance, that he was unable to determine the amount of King’s interest in the assets of the Montello Granite Company. Beplications were filed to the answers. It appeared, on the hearing, that the amount in the receiver’s hands coming to King’s estate is something over $1500, and that the widow’s award had been fixed at $1975. The court below dismissed the bill for want of equity.

“The general rule is, that the filing of a creditor’s bill, and service of process, creates a lien on the equitable assets of the judgment debtor. It has been aptly termed an ‘equitable levy.’ Wait on Fraud. Con. sec. 68; 2 Wait’s Actions and Defenses, 428; First Nat. Bank v. Gage, 93 Ill. 172; Lynch v. Johnson, 48 N. Y. 27; Miller v. Sherry, 2 Wall. 237; Adist v. Butler, 87 N. Y. 585.

“In the case at bar, no injunction was issued or receiver appointed. Was either necessary to make the ‘equitable levy’ perfect ? In Storm v. Waddell, 2 Sandf. Ch. 494, the court (p. 582) emphasizes the point that ‘the lien was acquired by the commencement of the suit, and not by the order for a receiver, or his appointment.’ And on pages 564, 565, it is said: ‘Without regard to the injunction, the property of the defendant is subjected to the suit, wherever it may be, if the receiver can lay hold of it, or the complainant can reach it by the decree. * * * A receiver is a convenient But not indispensaBle part of the proceeding. No voluntary assignment of the debtor can impair the complainant’s right, nor any intervening claim of other creditors. I speak in this outline, of equitable interests and things in action.’

“In Roberts v. Albany and W. S. R. R. Co. 25 Barb. 662, the court said: ‘As soon as the judgment creditor’s suit was instituted, the plaintiffs in that suit obtained a lien on all the choses in action of Butter. All the title he had was subject to that lien; all that he could pass was subject to it. When the receiver was appointed, (whether Butter assigned to him or not,) he acquired the title to those choses in action which Butter had when the action was commenced. In contemplation of law the title vested in the court when the action was commenced, and passed, as from that date, to the receiver.’

“In Brown v. Nichols, 42 N. Y. 26, it was held that the lien upon equitable assets, acquired by the commencement of an action in the nature of a creditor’s bill, is not extinguished by the death of defendant before the appointment of a receiver, but survives against such assets in the hands of the administrator.

“The Supreme Court of this State, in First Nat. Bank v. Gage, supra, cites the cases of Storm v. Waddell, and Brown v. Nichols, with approval, and states the law to be, that the filing of a creditor’s bill, or at least the service of process, gives the complainant a lien upon the property of the judgment debtor by placing it under the control of the court, which will not suffer it to be withdrawn, so as to defeat the object of the bill by any subsequent act or title. ‘As respects equitable interests and things in action, the rule appears to be, that the lien is fixed by the commencement of the suit.’ (Page 175.)

“Admitting that the receiver must be considered as no party to the suit at or before the death of King, still the situation is not changed. King had an equitable interest in the fund sought to be reached, and as he was a party to the suit, the lien survived his death, and holds good against all claiming under him. . A decree against him would have been valid against his administratrix, although the receiver was not a party. Bennitt v. Star Mining Co. 119 Ill. 9.

“That the interest of King in the firm assets was uncertain at the time the creditor’s bill was filed, is no barrier to complainant’s suit, otherwise any undivided equitable interest, whose amount or value can not be ascertained except upon an accounting, or reduction of the fund to money, is secure against the attack of creditors.

“The widow’s claim to her award is against the estate of her deceased husband. (Secs. 70, 75, chap. 3, Rev. Stat.) If there is no estate, she has nothing to rely on for the payment of the award. If the estate is encumbered by a valid lien, the award does not set aside the lien. She only has a claim on so much as may be left after satisfying the lien. In this case there is no estate to pay the widow’s award until the lien acquired by the creditor’s bill is discharged. The receiver is a quasi trustee, holding the fund for the benefit of whoever may eventually establish title thereto. High on Receivers, sec. 1.

“If, therefore, a creditor’s bill can only be maintained in cases of fraud and trust, as contended by appellee, the facts of this case are such that the jurisdiction attaches. The question of superior diligence only arises between creditors contending for priority oí lien, and has no application here. The publicity with which a debtor’s estate is surrounded by a trust which defies all the assaults of the ordinary process of law, can not be relied on as a protection against the equitable remedy of a creditor’s bill.

“The decree of the Superior Court is reversed, and the cause remanded, with directions to enter a decree in conformity with this opinion.”

If the defendants, Claude B. and Anna King, or Anna King, as administratrix, desired to raise the question as to the receiver being a necessary party to the bill, they should have done so by demurrer. Wait on Fraud. Con. and Creditors’' Bills, sec. 133, and cases cited.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.