Circuit Court a record of a suit wherein the appellees and one. Stevens had recovered the same sum as this bond recited, against the same defendant; that that case was appealed to this court and affirmed, and was taken by writ of error to the Supreme Court, and that the record of it had been taken from this court to that, and was there.

The appellees had put in evidence an execution purporting to be upon the judgment recited in the bond, and that bore the same general number as the suit proved by the appellant, There was, however, no evidence, except the inference from the foregoing, that the judgment of affirmance here, proved by the appellees, was in a case where Stevens was one of the appellees.

The recitals in the bond estopped the appellant to deny that there was such a judgment as therein recited in the Circuit Court, and that from that judgment an appeal was taken to this court. Arnott v. Triel, 50 Ill. 174.

The evidence of the appellees was sufficient, as before said, prima facie, to prove the affirmance of that judgment. The only way to disprove it, probably, was either to present the complete record as it stood here when the judgment was affirmed, or, by application here, have the record of affirmance amended as to the title of the cause, and then it would have been competent to prove, by parol, that there was no other case here in which the appellees and original defendant were parties. Had that been done, the question whether there was a fatal variance, or a case where the proof only went beyond and did not contradict the allegation, would have arisen. There is no such question now in the case. This appellant is only a surety, yet the defense has no equity in it.

After many years of litigation and the judgment of three courts-one of them twice-if the appellees can get one more they will probably get their money.

Judgment affirmed.

Gooding v. King.

D. W. C. GOODING

V.

ANNA KING, ADMINISTRATRIX.

Creditor's Bill-Lien-Assets in Hands of Receiver-Death of Debtor-Widow's Award.

1. The filing of a creditor's bill for the purpose of reaching the equitable interest of one of several copartners, the assets of whose firm are in the hands of a receiver, constitutes a lien against such interest, which survives the death of such copartner as against all claiming under him, although no receiver has then been appointed.

2. Uncertainty as to such interest is no bar to a proceeding by creditor's bill.

3. A widow's award from the estate of her deceased husband does not set aside a lien thereon acquired by the filing of a creditor's bill prior to his death.

[Opinion filed February 13, 1889.]

APPEAL from the Superior Court of Cook County; the Hon. HENRY M. SHEPARD, Judge, presiding.

Messrs. Dow & BURNHAM, for appellant.

The statute of Illinois in relation to creditor's bill is copied from the statute of New York. The Illinois courts. are presumed to follow the decisions of the New York courts in respect to the practice and proceedings under such bills. Singer & Talcott Stone Co. v. Wheeler, 6 Ill. App. 225.

The statute respecting creditor's bills is only declaratory of the chancery practice prior to the statute.

The judgment creditor who first institutes a suit, obtains a priority over the 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., bottom p. 553; Lyons v. Robins, 46 Ill. 276; First Nat. Bk. v. Gage, 93 Ill. 172; McCalmont v. Lawrence, 1 Blatchf. 232; Albany Bank v. Schemerhorn, 1 Clarke, 297; Boynton v. Ransom, 1 Clarke, 584; Gordon v. Lowell, 21 Me. 251; Lucas v. Atwood, 2 Stewart, 37.

30 169 84 609

This lien is obtained, not by the return of the execution unsatisfied, but by the commencement of the suit-filing of a creditor's bill founded upon such return of execution at law. Edmeston v. Hyde, 1 Paige, 637; Wakeman v. Grover, 4 Paige, 23; Burrell v. Leslie, 6 Paige, 445; Commack v. Johnson, 1 Green, 163.

The filing of a creditor's bill operates as an attachment of property, effects and equitable interest, 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 Ch. 568; Milwaukee & Minn. R. R. 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, 637; Craig v. Howe, 2 Edw. Ch. 554; Weed v. Pierce, 9 Cow. 722; Congden v. Lee, 3 Edw. Ch. 304; Thompson v. Nixon, 3 Edw. Ch. 547; Brewster v. Powers, 10 Paige, 562; Benson v. LeRoy, 4 Johns. 651; Cohen v. Carroll, 5 S. & M. 545; Wagner v. Speck, 3 Ham. 294; Platt v. Judson, 3 Blackf. 235; Demaree v. Driskel, 3 Blackf. 115.

Upon a creditor's bill, the complainant may reach the defendant's interest in the effects of a co-partnership, after payment of partnership debts, and satisfying all prior equities in favor of his co-partners. Eager v. Price, 2 Paige 334; Storm v. Waddell, 2 Sandf. 544, decided by Sandford, Vice Chancellor, in a very able and most elaborate opinion, reviewing a great number of decided cases of both State and Federal courts. This opinion holds that the filing of the creditor's bill, and service of process upon the judgment debtor, creates a lien upon all his property, effects and equitable assets; that the issuance of an injunction is not necessary, although prudential, and when served, prevents the debtor from disposing of his effects; that a receiver is a convenient, but not an indispensable part of the proceeding; that the effects locked up in the hands of the debtor may be decreed to be delivered to the

Gooding v. King.

complainant, or sold by a master and applied in satisfaction of the judgment and costs; that a voluntary assignment of the debtor can not impair the complainant's right, nor can any intervening claim of the creditor; that the right thus acquired by the complainant is a charge upon the things in action which the debtor had at the commencement of the suit; that such a lien is more certain and less liable to be defeated than a lien by attachment; that it is as certain and effectual upon effects and equitable interests discovered as the lien of a judgment or execution, or the lien of a mortgage.

In McDermut v. Strong, 4 Johns. Ch. 987, this right was upheld upon equitable interests. Hadden v. Spader, 20 Johns. 554, is to the same effect. The debtor had things in action in the hands of a third party, and equity required the reduction of them to the payment of the judgment creditor. Weed v. Pierce, 9 Cow. 722, by Ch. Walworth; Wakeman v. Grover, 4 Paige, 23; affirmed in 11 Wend. 187. The same doctrine was again reiterated in Farnham v. Campbell, 10 Paige, 601.

In Weed v. Pierce, Ch. Walworth held that the creditor by his bill acquired a specific lien upon the fund by commencement of his suit.

In Beck v. Burdett, 1 Paige, 305, the chancellor decided that the filing of a bill, after the return of an execution at law, gave to the complainant a specific lien on the fund or property not liable to execution at law.

And to the same effect is the case of Eager v. Price, 2 Paige, 333. In Corning v. White, 2 Paige, 567, the chancellor held that the creditor who first files his bill obtains a preference. The filing of the bill, under the provisions of the statute, operates as an attachment of the property which can not be levied on at law. It gives the vigilant creditor priority in payment, and the creditor who next files his bill will have the second lien. An assignment under the insolvent act, after commencement of the suit, only gives the assignee a right to the surplus, after the payment of the complainant's debt.

In Clarkson v. DePeyster, 3 Paige, 320, the chancellor again speaks of the right under a creditor's bill "as an equitable lien."

The same doctrine is held in Ins. Co. v. Power, 3 Paige, 365, and Bloodgood v. Clark, 4 Paige, 574, and again in Ames v. Blunt, 5 Paige, 13. In Burrell v. Leslie, 6 Paige, 445, eight creditor's bills had been filed at different times against the same judgment debtors, and it was held that these bills created a lien in the order of their respective suits.

The object and purpose of the creditor's bill was to reach the interest of King in the assets of the Montello Granite Co., which were in the hands of a receiver and could not be levied on by execution. This was held proper in Eager v. Price, 2 Paige, 334.

First National Bank v. Gage, 93 Ill. 172, decides that the lien which the judgment creditor obtains by filing his creditor's bill," survives the death of the judgment debtor; that the debtor's property then passes to the personal representatives, charged with this lien; that the assets are subject to it, and the debts are to be paid out of them after this lien, like any other legal lien, has been satisfied. As respects equitable interest and things in action, the rule appears to be that the lien is fixed by the commencement of the suit."

The lien upon equitable assets, acquired by 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.

Brown v. Nichols, 42 N. Y. 26, holds that Silvester v. Reed, 3 Edw. Ch. 312, and Matthews v. Neilson, 3 Edw. Ch. 346, were wrongly decided. That the doctrine laid down in these cases would subvert the well established rule that a prior equity will prevail against a subsequent legal title as to all except bona fide purchasers.

Messrs. C. H. and C. B. WOOD and S. B. KING, for appellees.

GARNETT, P. J. This is a creditor's bill filed June 16, 1883, by appellant against Claude B. King, Anna King, his wife, and