gave them a chattel mortgage on their stock, due April 1, 1890, for that amount.

Fletcher, Jenks, & Co. are a firm doing a wholesale hardware business at Detroit, and at the time of the assignment of Stevens and Farrar, were their creditors to a large amount. On February 28, 1890, Fletcher, Jenks, & Co. began a suit in the circuit court of Osceola County, by attachment, against Stevens and Farrar, and the appellant, the sheriff of said county, took, by said writ, the goods in controversy from the assignee. This suit in trover was then brought by the assignee against the sheriff.

On the trial, the plaintiff offered in evidence, and relied upon, the assignment and the proceedings subsequent thereto to support his title. Evidence was also offered of the seizure of these goods, while in the hands of the assignee, by the defendant under his writ of attachment against Stevens and Farrar. The defendant offered in evidence the chattel mortgage, dated February 1, 1890, from Stevens and Farrar to Wolf Brothers, claiming that it was really a part of the assignment, was simultaneous with it, and was taken with full knowledge on the part of the assignee of the insolvency of the assignors, and of their intent to make an assignment, and constituted such a preference as to render the assignment void as against the attachment levy. The trial judge excluded the mortgage, holding that, even were the facts as claimed, this preference did not avoid the assignment, and constituted no defense to the action, and that a creditor's only remedy in case of such preference was by proceedings in equity under the statute.

The question here raised is as to whether an assignment, under chapter 303, section 1, Howell's Statutes, which provides "that all assignments commonly called common-law assignments for the benefit of creditors shall be void, unless the same shall be without preferences as between such creditors," can be attacked in a court of law by proof of unlawful preferences. It is conceded by counsel for appellant that the rule was considered as settled in this state against him by Coots v. Radford, 47 Mich. 37, except for the case of Kendall v. Bishop, 76 Mich. 634. But it is claimed that the latter case has shaken the view formerly entertained by the profession, and that many now regard the doctrine of Coots v. Radford, 47 Mich. 37, as essentially modified, if not entirely overruled. We are all agreed that it was not the intention of the court, in

the case of Kendall v. Bishop, 76 Mich. 634, to overrule Coots v. Radford, 47 Mich. 37. The instrument considered in Kendall v. Bishop, 76 Mich. 634, was not intended by the parties to it as an assignment under the statute. It was held to be an assignment by construction merely. No attempt had been made by the parties to comply with the statutory requirements concerning assignments by giving a bond, or in any other respect, and although the decision was not put upon the ground that an attachment would lie against the property because the statutory requirements concerning assignments had not been complied with, still, that fact was in the case, and must have had its weight in determining the result.

It was said in Beard v. Clippert, 63 Mich. 719, that " a creditor of the assignors, after the time given by the statute to file the bond has expired, has two remedies open to him. He may proceed upon the equity side of the court to have the trust carried out through the intervention of a receiver and the supervisory powers of a court of chancery, or he may, if no other creditor invokes the aid of chancery, proceed to enforce his claim against the property of his debtor by levy of attachment or execution, as if the attempted assignment had not been made. He is not obliged, because an attempted assignment has been made, but fails utterly for want of the filing of the required hond, to proceed to enforce the trusts of the assignment in a court of equity."

It is said that the language here used was obiter, but nevertheless it states the doctrine which was applied in the case of Kendall v. Bishop, 76 Mich. 634.

It must be declared as the settled law of this state that an assignment for the benefit of creditors, when fully perfected, cannot be set aside at the suit of an attachment or execution creditor, by proof of unlawful preferences, or of "any fraud in the matter of such assignment." Relief against such a fraud is ample, under sections 6 and 11 of the act, but when given, it will be for the benefit of all concerned as creditors. To declare an assignment void on the ground that it gives a preference to A, so that B may obtain a like preference by attachment, is not what the statute contemplated, if all its provisions be read together. This is not saying that such a construction of the statute is without difficulty. The apparent inconsistencies of the various provisions have been considered in former cases, and the effort has been in each case so to harmonize them as to secure, if possible, the beneficial

results intended to be accomplished, viz., an equal distribution of an insolvent estate among creditors: Fuller v. Hasbrouck, 46 Mich. 78; Munson v. Ellis, 58 Mich. 331.

The judgment must be affirmed, with costs.

ASSIGNMENT FOR THE BENEFIT OF CREDITORS.-As to when an assign. ment for the benefit of creditors is not vitiated by fraud, see note to Hempstead v. Johnston, 65 Am. Dec. 473, 474.

FIX v. SISSUNG.

[83 MICHIGAN, 561.]

JURISDICTION NOT CONTROLLED BY ALLEGATIONS IN COMPLAINT. — A decla ration made in bad faith, alleging an excessive value for the purpose of maintaining a suit in the circuit court which should properly be brought in a justice's court because of the amount involved, is a fraud on the court, and will be dismissed on motion for want of jurisdiction. Gouverneur Morris and I. G. Humphrey, for the appellant. George M. Landon, for the respondent.

CHAMPLIN, C. J. The defendant found a flock of twenty geese belonging to the plaintiff, who was a neighbor, trespass ing upon his field, and shut them up, and sent word to plaintiff that he must pay damages. Plaintiff tendered one dollar for damages, and demanded the geese. Defendant refused to accept one dollar, but wanted five dollars for damages, and twenty-five cents for feeding the geese. Thereupon the plaintiff sued out a writ of replevin in the circuit court for the county of Monroe, stating in his affidavit that the geese had been distrained or impounded, and were unlawfully detained. The sheriff executed the writ, and returned that he had replevied from the defendant four old geese and fifteen young ones, and one young goose was not found. The total lot replevied were appraised at $8.80.

Before pleading, the defendant moved to dismiss the writ and set aside the proceedings, for the reason, among others, that the court had no jurisdiction. Two grounds were asserted as the basis of this motion: 1. That "geese "" were not within the statute authorizing the distraining and impounding of "beasts"; 2. The appraised value of the property showed that the court had no jurisdiction.

The motion was resisted, and the court denied it, for the reason that it was at that time premature. Upon the second

point, he held that the plaintiff was not precluded by the appraisal, but might allege in the declaration, and prove upon the trial, that the value of the property exceeded one hundred dollars. The plaintiff's counsel would not admit the value of the property to be less than one hundred dollars, but exhibited a declaration which he proposed to, and afterwards did, file, alleging the value at two hundred dollars. Upon the first point, the court said he thought it clear that geese did not come within the general statutes regulating distress, impounding, and replevin of "beasts"; but as sections 673 and 2869, Howell's Statutes, provide that villages and townships may make regulations respecting the restraining and impounding of animals, including geese, he would be obliged to await the development of the proofs upon the trial; but if the plaintiff should fail to bring himself within the statute, he should feel it his duty to dismiss the case for want of jurisdiction, and permit the plaintiff to proceed at his peril. Upon the trial, no such proof was attempted, and plaintiff offered no proof as to the value of his geese, and strenuously opposed the introduction of evidence, by the defendant, of their value. Such evidence was admitted by the court, and showed the value of the property replevied to be nine dollars.

It is now claimed that the circuit court had jurisdiction, because the plaintiff alleges the value to be two hundred dollars. The claim is unjustifiable. The facts show that the value alleged in the declaration was made in bad faith, and was a fraud upon the court. Section 18 of article 6 of the constitution confers upon justices of the peace exclusive jurisdiction in civil cases to the amount of one hundred dollars. While values of property depend, in a large measure, upon opinion, and this court, when the value is near the limit, will not declare in all cases a want of jurisdiction, if in good faith the declaration alleges the value within the jurisdiction. of the circuit court, nevertheless it will not hold that jurisdiction is obtained when the fraud upon the court is apparent, as it is in this case. The circuit court had no jurisdiction of the subject-matter nor the process.

The court was right in dismissing the case, with costs, and the judgment is affirmed, with costs.

JURISDICTION AS TO VALUES, HOW DETERMINED. The constitutions or statutes of the different states usually provide that the jurisdiction of certain courts shall extend only to cases where the amount in litigation shall exceed or shall not exceed a certain sum. Generally speaking, it is the

amount of the plaintiff's claim, as shown by his complaint or by the summons, which determines the court's jurisdiction. It is almost universally maintained that the amount claimed by the plaintiff in the ad dumnun clause of his declaration, petition, or complaint, or that named in the summons, determines the question of the jurisdiction of a court to entertain an original proceeding, and not the value of the property involved in the controversy, as established by the evidence at the trial, nor the amount found by the jury of finally recovered. This rule is equally applicable to actions commenced in inferior or superior courts, at law or in equity, in actions ex contractu or ex delicto. From the host of authorities in which this doctrine has been sustained, the following may be cited: Skinner v. Bai'ey, 7 Conn. 496; Peter v. Schlosser, 81 Pa. St. 439; Scott v. Moore, 41 Vt. 205; 98 Am. Dec. 581; Vineyard v. Lynch, 86 Mo. 684; Giles v. Spinks, 64 Ga. 205; Ashuelot Bank v. Pearson, 14 Gray, 521; Inhabitants of Township No. 11 v. Weir, 9 Ind. 224; Pate v. Shafer, 19 Ind. 173; Gaurd v. Circle, 16 Ind. 401; Culley v. Lay'wook. 8 Ind. 285; Lafferty v. Day, 7 Ark. 258; Cole v. Hayes, 78 Me. 539; McVey v. Johnson, 75 Iowa, 165; Cavender v. Ward, 28 S. C. 470; Derby v. Stevens, 64 Cal. 287; Pennybecker v. McDougal, 48 Cal. 160; Solomon v. Reese, 34 Cal. 28; Cilley v. Van Patten, 68 Mich. 80; Miles v. Couchman, 4 J. J. Marsh. 242; Singleton v. Madison, 1 Bibb, 342; Abney, Love, & Co. v. Whitted, 28 La. Ann. 818; Tyler Cotton Press Co. v. Chevalier, 56 Ga. 494; Block v. Fontenot, 35 La. Ann. 965; Zuberbier v. Morse, 36 La. Aun. 970; Little v. State, 75 Tex. 616; McQuade v. O'Neil, 15 Gray, 53; Clay v. Barlow, 123 Mass. 378; Merrill v. Butler, 18 Mich. 294; Stephen v. Eiseman, 54 Miss. 535; Fenn v. Harrington, 54 Miss. 733.

As illustrations of these principles, it may be said that jurisdiction in replevin attaches according to the claim made in the affidavit: Chilson v. Jennison, 60 Mich. 235. Where the plaintiff in his declaration claimed one hundred dollars, the mere fact that the copy note attached to the declaration and the note itself was for more than that amount is no ground for arresting the judgment: Wilhelms v. Noble Brothers & Co., 36 Ga. 599. And a court whose jurisdiction is limited to cases where the debt or damages demanded do not exceed a certain sum has jurisdiction of a case in which the ad damnum is for that sum, although a larger one is alleged in the declaration: Hapgood v. Doherty, 8 Gray, 373. In a suit for damages to personal property, it is the amount of damages laid in the summons, or the declaration attached thereto, that fixes the jurisdiction, and not the verdict or amount of damages proved: Velvin v. Hall, 78 Ga. 136.

In McVey v. Johnson, 75 Iowa, 165, the court said: "The question of jurisdiction depends upon whether the amount in controversy is determined by the allegation as to the sum actually due or that sought to be recovered. We think the latter should determine the question. The amount claimed necessarily limits the amount of the recovery. If one sues in a court of competent jurisdiction to recover damages for the loss of a horse, alleging its value to be $150, but claiming to recover damages only to the amount of $125, he might recover that amount or any sum less than that, but could not recover more. The amount in controversy in that case would be the sum named, and the present case does not differ in principle from that. It is the amount in controversy, and not the items or matters out of which the claim arises, which confers or defeats jurisdiction, and that is to be determined by the sum which may be recovered in the action."

In determining the jurisdiction in an action for trespass to real estate, it is the amount claimed in the summons, and not the damage shown, which must