Opinion of the Court.

to each, aggregating one hundred and three thousand three hundred dollars, and it is then alleged that upon faith of this, and of representations of the company of their ability to pay losses, complainants and many others insured in the company.

Combination and fraud are alleged, by the officers and members of the company in distributing the assets of the stock department among themselves, showing wherein, and the manner thereof, by which the capital and assets of the stock department were distributed among the members of the company, and the losses left unpaid, etc.

The proceedings to wind up the company instituted by the attorney general are then recited.

This statement sufficiently shows the nature of the proceeding. There is an allegation that complainants had requested defendant to bring suit for the recovery of the assets, etc., or to allow them to use his name for that purpose; the money to be applied to their judgments.

The prayer of the bill is that defendant be compelled to sue for the assets, and to appropriate the proceeds in payment of their judgments.

The court decreed accordingly; and further, that in case defendant failed to bring suit in ninety days, then the master in chancery do the same, and become possessed of the assets of the company, and apply the proceeds to complainants' judgments.

The decree was pro confesso, no answer or plea by defendant having been put in.

To reverse this decree the defendant has appealed, assigning the decree as error.

Appellant makes several important points on this record which require much and careful consideration, but to which appellees have not replied. They have confined their attention in their brief, to one single point, and that is, the effect of a decree pro confesso.

Appellant insists that upon a pro confesso order upon a bill not sworn to, and without any evidence in any form, the court was incapable of passing the decree it did pass.

Opinion of the Court.

A doctrine the opposite of this, is settled by this court in a number of cases. In Smith v. Trimble et al., 27 Ill. 152, it was said, when a bill is taken as confessed, the court trying the cause, may, in its discretion, require proof as to all or any portion of the allegations of the bill, or render a decree on the pro confesso order without evidence. The same was held in Stephens v. Bichnell, id. 444. In Harmon v. Campbell, 30 id. 25, it was said, when a decree pro confesso has been entered after default, the defendant can not make any objection that the proof does not sustain the allegations of the bill. The allegations are taken as true by the default. The court had a right to render the decree without any proof.

And such is the statute. Ch. 21, sec. 19, R. S. 95.

No distinction is made between bills sworn to and not sworn to; but in this case the bill was sworn to.

An objection is made to the scope of the decree, that it is too broad. This, we think, is well taken. The decree should have directed the proceeds of such moneys, as might be collected by the receiver, to be brought into court, that the court might distribute it to the creditors entitled.

There is another objection made to the decree, and that is in appointing the master in chancery of the court the receiver, in the event appellant did not act in ninety days.

As a general rule, the appointment of a receiver is ordinarily a matter of discretion in the court; but there are persons who, owing to their position, are not usually competent to act as such. A party to a suit is not competent, unless by consent of both parties. Nor is a trustee, for he is the person to see that the receiver performs his duty. The two characters are incompatible; but in a special case he might be appointed, he engaging to act as such without emolument. And this rule is extended to others besides trustees. In Taylor v. Oldham, Jacob R. 527, Lord Eldon held that the son of a next friend, suing for an infant, ought not to be receiver. Nor will a man be appointed receiver whose position may cause difficulty in administering justice. A master in chancery was accordingly held disqualified, he being an officer whose duty it was

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Opinion of the Court. Syllabus.

to pass the accounts and check the conduct of a receiver. Kerr on Receivers, ch. 4, pp. 126 to 130.

This court held in Baker v. Backus, Adm'r, 32, Ill. 79, that the solicitor of the complainant could not be receiver.

Without discussing the questions made by appellant under his first, second, and third points, we reverse the decree and remand the cause for reasons above given.

Decree reversed.

JOSEPH H. REYNOLDS

บ.

JAMES F. MCCORMICK.

1. REPLEVIN plea of property in defendant. In replevin, the plea of property in defendant is mere inducement to the formal traverse of the right of property in the plaintiff. It is not even traversable.

2. ISSUE presented by plea of property in defendant. Under such a plea, the issue to be tried is not whether the property is in the defendant, but whether the right of property and the right to immediate possession is in the plaintiff. On such an issue the plaintiff must recover on the strength of his own title, and the burden of proof is on him to establish his right.

3. REPLEVIN effect of verdict on title to property. In replevin, where the defendant pleaded property in himself, and the proof showed that he owned the property jointly with the plaintiff: Held, that a verdict for defendant on such issue did not determine judicially that the property was that of defendant exclusively, and that such finding did not affect plaintiff's right to recover the undivided half.

4. SAME-return of property. Where the plaintiff sought to recover possession of property in an action of replevin, claiming to be the exclusive owner thereof, and the defendant pleaded property in himself, the proof showing that the property was owned in partnership by the plaintiff and defendant: Held, no error for the court to award a return of the property to defendant on a verdict finding such issue in favor of defendant. If the property was, in fact, partnership property, the possession of either was lawful.

Syllabus. Statement of the case.

5. REPLEVIN by one partner against his co-partner. It seems that where property is owned by two persons jointly as partners neither can maintain replevin against the other for the exclusive possession.

6. NEW TRIAL-finding of jury. Where the only witnesses examined upon the point in issue are the two parties to the suit, and their testimony is flatly contradictory, the court will not undertake to say which witness the jury ought to have credited.

7. EVIDENCE-error not prejudicial. Where a plaintiff has already proved a certain fact which is not disputed by the defendant, it is no error to reject other proof to the same effect.

APPEAL from the Circuit Court of Adams County; the Hon. JOSEPH SIBLEY, Judge, presiding.

The facts are sufficiently stated in the opinion of the court, except that the defendant below claimed to have purchased one-half interest in the property replevied of the plaintiff, while they were practicing medicine in partnership. On this point, the only testimony was that of the parties, who expressly contradict each other. The court below refused the third and fifth instructions asked by plaintiff, which are as follows:

3. If the jury believe, from the evidence, that the defendant's only claim of right to the property is by purchase from the plaintiff, they should find the property in question the property of the plaintiff, unless, upon consideration of all the evidence upon the question of such purchase, they believe the same preponderates in favor of such purchase, in fact, having been made.

5. If the jury believe, from the evidence, that the property in question was the property of the plaintiff, and even if they further believe, from the evidence, that the defendant purchased of the plaintiff an undivided half interest therein, and that such purchase is defendant's only claim or right to the same, in such case these facts will not, in law, prove the defendant's plea of property in the defendant.

The court gave the following instructions for defendant, to which plaintiff excepted:

1. If the jury believe, from the evidence, that, at the time the property replevied in this case was replevied, it was owned by both the plaintiff and defendant as partnership property, the jury will find the issues for the defendant.

2. The court further instructs the jury, on behalf of the defendant, that in determining upon their verdict in this case, they should take into consideration all the facts and circumstances in evidence before them, and if, after full consideration of all such facts and circumstances, the jury are of the opinion from the same that the defendant did purchase onehalf interest in the property replevied in this suit as testified to by him, then the jury should find the issues for the defendant.

3. The court instructs the jury, on behalf of the defendant, that in order to entitle the plaintiff to a verdict, it is incumbent on the plaintiff to establish, by evidence in the case, that the goods and property replevied in this suit were in the possession of the defendant, or that he detained the same from the plaintiff at the time the suit was commenced; and unless the jury do believe from the testimony given in this case, that said property was in the possession of the defendant, or that he detained the same when this suit was commenced, then they should find for the defendant upon the issue of detention of such property only.

The jury found the issues for the defendant. Plaintiff moved the court for a new trial, which was denied, and judgment rendered on the verdict, and for a return of the property.

Messrs. SKINNER & MARSH, for the appellant.

Messrs. WARREN, WHEAT & HAMILTON, for the appellee. Mr. JUSTICE SCOTT delivered the opinion of the Court:

The declaration in this case contained two counts: one for the taking, and one for detaining, the property described in the writ.