Prentiss v. Moore.

barn mentioned in the writ on a lot adjacent to the one on which they had been erected. The defendant was in the act of moving the house, and was then in possession of the house; he and his family were living in it. The house had been moved from a stone foundation. I took the house by virtue of the writ, and under the direction of defendant moved it back into the field from which the defendant had taken it, in a different place, but near where it originally stood. I placed the house where the defendant directed me to place it, and left it in the possession of the defendant. He and his family were then residing in the house. The return I made on the writ is exactly and literally true."

It is apparent that the plaintiff never obtained the possession of the property by virtue of the writ of replevin, but that the same was placed by the officer where he was directed by the defendant, and the defendant left in sole charge and possession of it.

Under such circumstances we fail to see how a return of the property to the defendant can be awarded. There is nothing to return; the writ has never been executed, and the object of the suit, which is to obtain possession of the property, has never been accomplished.

In such case we are of the opinion that upon a dismissal or a voluntary discontinuance of the suit in replevin these facts can be shown, and thus prevent the order for a return of the property. Buckmaster v. Beames, 4 Gilm. 443. It cannot be otherwise than improper to award a return of the property where it has never been delivered to the plaintiff upon the writ.

For this reason alone wwe think the court below should have overruled the motion of defendant for an order for the return of the property.

We have, however, looked into all the evidence in the case, and if we were to consider it as determining the rights of the parties to the property, we should have no hesitation in holding that the writ, under all the circumstances in proof, was properly issued. It is not necessary, however, to determine this question.

Paxton v. Schick et al. Clayburg, Einstein & Co. v. Ford et al.

The order awarding the writ de retorno habendo must be reversed.

Order reversed.

J. Н. РАХΤΟΝ

V.

FREDERICK SCHICK ET AL.

REPLEVIN.-This case presents the same questions as the preceding case, and is reversed for the same reasons there given.

APPEAL from the City Court of Aurora; the Hon. FRANK M. ANNIS, Judge, presiding. Opinion filed May 2, 1879.

Mr. A. J. HOPKINS, for appellant.

PILLSBURY, P. J. This case is the same in all respects as the case of Mary E. Prentiss v. Thomas Moore, decided at the present term, and for the reasons therein given the order awarding a return of the property must be reversed.

Order reversed.

CLAYBURG, EINSTEIN & Co.

V.

Clayburg, Einstein & Co. v. Ford et al.

day. The levy of the attachment being prior in time, is stronger in right and must prevail, there being no evidence that plaintiff in attachment had actual or constructive notice of the existence of the deed.

ERROR to the Circuit Court of Peoria county; the Hon. D. MCCULLOCH, Judge, presiding. Opinion filed May 2, 1879.

Messrs. CRATTY BROS. & ULRICH, for plaintiffs in error; that the levy constituted a prior lien, cited Martin v. Dryden, 1 Gilm. 187; Doyle v. Teas, 4 Scam. 202; Kennedy v. Northrup, 15 Ill. 148; Jones v. Jones, 16 Ill. 117; Stribling v. Ross, 16 Ill. 122; McClure v. Englehard, 17 Ill. 47; Reichert v. McClure, 23 Ill. 516; Massey v. Westcott, 40 Ill. 160; McFadden v. Worthington, 45 111. 362; Huebsch v. Scheel, 81 Ill. 281; Cushing v. Hurd, 4 Pick. 252.

Messrs. STEVENS, LEE & GALLAGHER, for defendants in error; that no notice of attachment was mailed, and the court had no jurisdiction, cited Thormeyer v. Sisson, 83 Ill. 188.

It was proper to try the case upon the interpleader of defendant, no defense being made for IH. T. Ford: Williams v. Van Mettre, 19 Ill. 293; City Ins. Co. v. Commercial Bank, 68 Ill. 348.

An attachment can operate only upon the interest of the defendant in attachment existing at the time the writ is levied: Drake on Attachment, § 220; Cox v. Milner, 23 Ill. 476; Samuel v. Agnew, 80 Ill. 555; Seavey v. Browning, 18 Iowa. 246; Reed v. Ownby, 44 Mo. 204.

LELAND, J. Martin Clayburg, Morris Einstein, David Lindauer, and Bernhard Kuppenheimer, using the firm name of Clayburg, Einstein & Co., sued out a writ of attachment against Henry T. Ford, as defendant in attachment. As there was an appearance by the defendant, and a declaration by plaintiffs, in which the full names of the members of the firm were given, the irregularity of proceeding in the firm name may have become unimportant. See, on this subject, Day v. Cushman et al., 1 Scam. 475; 1 Chitty Pl. 7th Ed. p. 256, note 1. We are not disposed to consider the irregularity one which would make

Clayburg, Einstein & Co. v. Ford et al.

the writ void, even though it might have been sufficient to quash it, if not amended, or to reverse an error if there had been a default. There is, however, no cross-error assigned.

The attachment was levied upon some real estate, and appellee, Susan J. Ford, filed an interpleader under section 29, p. 157, Rev. Stat. 1874. She does not state whether she was seized in fee, or for life, but merely says she was the owner when the land was attached. Although the indications are, as stated by Justice Scott, in City Ins. Co. v. Com. Bank, 68 Ill. 348, very strong that this section only applies to personal estate, it was nevertheless held in that case, upon the authority of Williams v. Van Metre, 19 Ill. 293, to include real estate. If under this issue the interpleader should prove that she had a life estate, and defendant in attachment the remainder expectant, it might be somewhat perplexing to know what the verdict and judgment should be, or of what use the trial would be.

There is no dispute about the facts. Defendant in attachment made a deed to appellee in Kansas, which was dated, acknowledged and delivered September 12th, 1876. It was sent to Peoria, and was filed for record there Sept. 14th, 1876, at two o'clock, P. M. The writ of attachment was levied on the same day, and the certificate of levy was filed for record under Sec. 9, p. 154, Rev. Stat. 1874, at eleven o'clock A. M. of that day.

There is no evidence that plaintiffs in attachment had actual or constructive notice of the existence of the deed. It is said that because Cratty, the attorney for plaintiff made affidavit on September 14th, 1876, that defendant had within two years last past fraudulently conveyed or assigned his effects, or a part thereof, so as to hinder and delay his creditors and the plaintiffs, that therefore plaintiffs had notice of a deed which was not fraudulent. We are not disposed to consider that a mere general swearing of this kind, according to the form of the statute in such case made and provided, by an attorney, would indicate that plaintiffs knew of the existence of a deed valid as to creditors if recorded in time. See section 1, p. 152, Rev. 1874. This portion of the affidavit was entirely unnecessary. The first clause, that defendant was a non-resident, was enough. The object of mailing the notice to the

C. B. & Q. R. R. Co. v. Colwell.

defendant, as mentioned in Thormeyer v. Sisson, 83 Ill. 188, being to enable defendant to appear and defend, and as he did do so, the omission is of no moment. Nor is it a question in which appellee has any interest. Conceding that the deed was made for a valuable consideration, to-wit: the discharge of a prior indebtedness, and that there was no motive to hinder and delay creditors-nothing but fair and honest motives-whatever the law may be elsewhere, the levy of the attachment being prior in time, is stronger in right, under the laws of this State in relation to recording instruments concerning real estate. Jones v. Jones, 16 Ill. 117; Martin v. Dryden, 1 Gilm. 187, and many subsequent cases.

It being inaccurately but positively stated in the brief of appellee that the writ was levied after the deed was recorded, there may have been misapprehension as to dates on the trial below. The question seems to us not to be a debatable one, and therefore the judgment is reversed and the cause remanded.

Reversed and remanded.

THE CHICAGO, BURLINGTON & QUINCY RAILROAD

COMPANY

V.

ELEANOR E. COLWELL, Adm'x.

1. NEGLIGENCE-COMPARATIVE - RULE AS TO.-Notwithstanding th party injured may have been guilty of only slight negligence, if that of the defendant, in comparison, amounts to gross carelessness, the plaintiff would not be debarred from recovery; but if the person injured failed at the time to use that care which a man of ordinary prudence would have exercised under like circumstances, then no recovery can be had, unless the negligence of the defendant was so gross as to amount to a wanton or willful wrong. 2.

NEGLIGENCE IN SEEKING UNSAFE POSITION - INSTRUCTION. - An instruction which tells the jury that if the deceased, at the time of the injury was exercising ordinary care and prudence, etc., then he is entitled to recover, is erroneous, because it ignores the fact whether the deceased exercised ordinary care in venturing upon a prohibited and dangerous place in the first instance.

3 5-45 44 180 3 545 51 631