fully selected and packed; that the natural shrinkage in apples is ten per cent, but the shrinkage in these apples was twenty-five per cent.

An accounting and general relief are prayed for in the petition. Answers and replications were filed and the issues were tried upon the oral testimony of witnesses heard in open court, together with documentary evidence submitted, and the deposition of one witness who was too sick to appear in open court. On February 18, 1905, the court rendered a decree in favor of the appellees for the sum of $3888.34, and made the same a lien upon the warehouse property described in the pleadings. The case was taken to the Appellate Court for the First District under a writ of error, and that court affirmed the decree of the court below. The case now comes here on appeal from the Appellate Court.

OLIVER & MECARTNEY, for appellants:

Equity has no jurisdiction of a tort sounding in damages. Palys v. Jewett, 32 N. J. Eq. 302; Brown v. Railway Co. 96 Ill. 297.

A judgment at law would not run against the receivers personally, but against the fund. McNulta v. Lockridge, 137 Ill. 270; Bartlett v. Light Co. 177 id. 68.

Trial by jury at law differs from trial by jury in chancery, the verdict in the former being controlling and in the latter only advisory. Guild v. Hull, 127 Ill. 523; Biggerstaff v. Biggerstaff, 180 id. 407.

Jurisdiction being the authority to hear and decide a case, (People v. Talmadge, 194 Ill. 67,) and a court of chancery having no authority to award damages, (2 Daniell's Ch. Pr. 1080,) the lower court had no jurisdiction.

It is not discretionary with a chancery court to compel a party claiming rights against its receiver to proceed against him by petition in the receivership action. Beach on Receivers, sec. 659; McNulta v. Lockridge, 137 Ill. 270; Richards

v. Railway Co. 124 id. 516; Brown v. Railway Co. 96 id. 297; Freeman v. Winchester, 10 S. & M. 577; Gluck & Becker on Receivers, (2d ed.) sec. 59.

Every bill or petition in equity must state a case within the appropriate jurisdiction of a court of equity. Story's Eq. Pl. sec. 10; 1 Daniell's Ch. Pr. (4th Am. ed.) 555; 1 Pomeroy's Eq. Jur. sec. 178; Cook County v. Davis, 143 Ill. 151.

The case at bar is one which under no circumstances is cognizable in a court of equity. Richards v. Railway Co. 124 Ill. 516; McClay v. Norris, 4 Gilm. 370; McMannomy v. Walker, 63 Ill. App. 259.

The distinction between law and equity is rigorously maintained in this State. Ide v. Sayer, 129 Ill. 230; Friedman v. Podolski, 185 id. 587; George v. People, 167 id. 447.

Consent does not give jurisdiction. Harris v. People, 128 Ill. 585; Cooley's Const. Law, 398.

Want of jurisdiction of the subject matter is available at any stage of the proceedings. 16 Cyc. 127; Elevator Co. v. People, 174 Ill. 203.

The objection may be raised for the first time on appeal. Fisher v. Chicago, 213 Ill. 268.

Atwood, Pease & Loucks, for appellees:

The lower court had jurisdiction to entertain this petition and to try this cause because this was a petition filed in the very cause in which the receiver was appointed, and was not an independent suit in equity. Brown v. Railway Co. 5 Ill. App. 590; Knickerbocker v. Benes, 195 Ill. 434; 23 Am. & Eng. Ency. of Law, 1125; Kennedy v. Railroad Co. 3 Fed. Rep. 97; Beach on Receivers, par. 654; Bank v. Landauer, 68 Wis. 44.

Appellants made no objection below to the entertainment of the petition and did not in any way question the jurisdiction, nor did they ask for a jury. Palys v. Jewett, 32 N. J. Eq. 300; Phillips v. Hood, 85 Ill. 450; Kennedy v.

Railroad Co. 3 Fed. Rep. 97; Nelson v. Bank, 48 Ill. 36; Stock Exchange v. McClaughry, 148 id. 372; Kimball v. Walker, 30 id. 482; Crawford v. Schmitz, 139 id. 564.

Mr. JUSTICE VICKERS delivered the opinion of the court:

Appellants' first and most serious contention is, that the circuit court of Cook county sitting in chancery had no jurisdiction to try this cause, for the reason that appellees' claim is for alleged damages growing out of a tort and is cognizable only in a court of law. The precise question presented by this assignment of error has not been decided by this court, so far as we have been able to find, and no case is cited by either side which we regard as an authoritative decision of the question. Appellants insist that the case of Brown v. Wabash Railroad Co. 96 Ill. 297, is an authority supporting their contention. We do not so regard it. The Toledo, Wabash and Western Railway Company was being operated by Jacob D. Cox as receiver, appointed by the concurrent orders of the court of common pleas of Lucas county, Ohio, the circuit court of Cass county, Indiana, and the circuit court of Vermilion county, Illinois, and while so operating, Roberts, a fireman, was killed through the alleged negligence of the receiver. Under an order of the court the railroad, and all of its property and equipment, had been sold and passed into the ownership of the Wabash Railway Company. A provision in the decree under which the property was sold required the purchaser to assume and pay all liabilities incurred in respect to said railroad or its business by the receiver during the pendency of the legal proceedings relating to the receivership and the subsequent sale. Assuming that this provision in the decree created a lien upon the property in the hands of the Wabash Railway Company, the administrator of Roberts filed an original bill in equity against the Wabash Railway Company in the Sangamon county circuit court to ascertain and establish his damages resulting from the death of Rob

erts and for an order requiring the Wabash Railway Company to pay it. This court, while conceding the existence of the lien, held that a court of equity would not by an original action take jurisdiction of a case involving a question of unliquidated damages arising from a tort. That case decides the familiar doctrine that a court of chancery is not the forum in which to settle purely legal questions. No question was there presented or decided as to the jurisdiction of a court of chancery, under whose direction a trust fund is being administered by its receiver, to determine any legal matter that may arise ancillary to the due administration of the trust property. A careful examination of that case shows that it has no application to the question involved in the case at bar.

Knickerbocker v. Benes, 195 Ill. 434, relied on by appellees, is a case substantially like the case at bar in its facts, and this court upheld a judgment growing out of a tort against a receiver where the damages had been ascertained and assessed by the chancellor, but no question was there raised or decided in respect to the procedure. It appears to have been conceded by the parties that the circuit court wherein the receivership was being administered properly took jurisdiction to determine the claim for damages. While this case is not a direct authority on the question here involved, it at least shows that a court of chancery did in that case take jurisdiction to hear and determine a matter sounding in damages growing out of a tort, and that its judgment has been affirmed by this court.

Appellants rely with great confidence on Palys v. Jewett, 32 N. J. Eq. 302, as supporting their position. That case was a suit against the receiver of a railway company for damages alleged to have been sustained by the plaintiff by reason of the negligence of the employees of the receiver in the management of a train of cars. The case was heard before the vice-chancellor, who found for the receiver. The report of the case which we have seen does not show how

the case was brought into court. The decision of the vicechancellor is reversed on the merits and the cause is remanded, with directions to enter a judgment in favor of the plaintiff for $3000. From the report of the case it appears that the plaintiff, and not the receiver, was protesting against the trial of the case without a jury. In the course of the opinion, on page 317, it is said: "These observations constitute a pointed re-affirmation of the proper rule of practice as promulgated by Lord Eldon, establishing plainly, as they do, that in this class of cases the chancellor will not undertake to decide a purely legal question against the person who demands from him a trial at law."

From this quotation we infer, though the report does not so show, that the petitioner or plaintiff in that case had applied to the chancellor for leave to bring his action at law, which being denied, he was compelled to submit his case to the vice-chancellor. We reach this conclusion more readily from the fact that in Potter v. Spa Spring Brick Co. 47 N. J. Eq. 442, that court, in commenting on its earlier decision of Palys v. Jewett, said: "Palys v. Jewett was a proceeding by a person who had been injured by a railway train run by a receiver of the court, for redress in damages for such injury, and the opinion of the learned chief justice in the court of errors and appeals was based on the supposed fact (5 Stew. Eq. at pp. 318, 319,) that the petitioner had asked this court for leave to proceed at law, or at least for a trial by jury, and had been refused, and so was forced, against his will, to submit his case, in all its parts, to the determination of this court."

There are other expressions in the Palys case from which it is clear that the learned chief justice had in mind cases where the party was drawn, against his will, to litigate legal questions in a court of chancery. It is stated in that case as a reason why the court would consider the case on its merits, that no appeal had been taken from the order refusing a trial by jury. Further commenting on the Palys