A complainant who sues out

acter, to be made in the original case. a writ of injunction, other than to stay a judgment at law, is liable, under section 127 of the Code, to pay all such costs and damages as shall be awarded against him, in case the injunction shall be modi fied or dissolved in whole or in part. The undertaking in this case was conditional, as follows:

"The said plaintiff shall pay to the said party enjoined such damages, not exceeding the sum of one thousand dollars, as such party may sustain by reason of such injunction and the appointment of said receiver, if the said district court shall finally decide that the said plaintiff was not entitled thereto.”

At the time of the investigation of this subject of damages there was not only no issue under which the testimony was admissible, but the district court had not modified or dissolved the injunction, nor decided that the complainant was not entitled to an injunction and the appointment of a receiver.

The law appears to be pretty well settled, also, that in actions of this character, damages cannot be awarded in the original cause, in the absence of a statute authorizing the same on the dissolution of the injunction, but the party aggrieved must resort to an independent action. An examination of the authorities cited upon the point has satisfied us that no authority exists under our statutes and practice to award damages in the injunction proceeding. The conclusion of Mr. Heigh, in his treatise on the Law of Injunctions, upon the point, is thus expressed:

"But while courts of much respectability have insisted upon the exercise of such a jurisdiction, treating it as a cumulative remedy, entirely independent of and distinct from any action which might be brought upon the bond, the undoubted weight both of authority and principle is against the exercise of such a jurisdiction." Volume 2, § 1657.

He further says that in the absence of express legislation a court of equity, upon dissolving an injunction, has no power to ascertain, by reference or otherwise, the damages sustained. The opinion in some of the reported cases in point were rendered on statutes which have since been modified, as in the case of Phelps v. Foster, 18 Ill. 309. See Taylor v. Brownfield, 41 Iowa, 264; Crescent City, etc., Co. v. Larrieux, 30 La. Ann. 742; Logsden v. Willis, 14 Bush, 183.

We think the evidence taken and reported by the referee fully sustains his findings and conclusions upon the issues presented by the pleadings. These issues relate to the alleged partnership contract, business, and property. The evidence satisfactorily shows that at the date of the hearing the defendant was not indebted to the complainant on account of the business arrangements and transactions mentioned in the complaint, whatever their legal character may be termed, nor had he any property in which the complainant was interested, either in the hands of the receiver or otherwise. To this extent the inquiries of the referee were duly authorized, and his conclusions and findings sustained by the facts reported. Having

the facts before it, the court should have disregarded the erroneous conclusions, and rendered the proper judgment or decree, instead of the judgment so reported. Calderwood v. Pyser, 31 Cal. 337. This may still be done; and to this end the judgment of the district court will be reversed, and the cause remanded, with directions to said court to dissolve the injunction and to dismiss the bill at the costs of the complainant; that the receiver be ordered to report to the court his acts and doings by virtue of his appointment; that he pay into court, subject to the order of defendant, all moneys which have come or which may yet come into his hands as such receiver; that if he retains any of the property taken or received from the defendant, he immediately return the same to said defendant; and that he abide the further order of the court. It is further ordered that said defendant, Jacob Strassheim, pay the costs of this appeal. Judgment reversed.

(8 Colo. 157)

SALSBURY V. ELLISON.

Filed February 20, 1885.

1. ASSIGNMENT FOR BENEFIT OF CREDITORS-GOOD IN PART, VOID AS TO THE REST. According to the authorities on the subject, an assignment for the benefit of creditors may be held void in part and good in part. Such an assignment is good in equity as at law to pass the legal title to the assignee.

2. SAME PREFERRED CREDITORS MUST BE IGNORED.

Assignee must distribute the property ratably among all the creditors, and the preference given to certain specified creditors ignored.

3. SAME-SURVIVING PARTNER AS ASSIGNEE-RECONSTRUCTION OF INSTRUMENT. Surviving partner may make an assignment for the firm, but if the instrument is of a questionable character, it is doubtful whether it is proper even in equity to reconstruct the instrument and make a new arrangement for the parties. 4. SAME-GEN. ST. COLO. § 68-LAW BEFORE ITS ENACTMENT, WHEN THIS ASSIGNMENT WAS MADE.

Section 68, Gen. St. Colo., adopted since this assignment was made, enacts in effect that such an assignment shall be void only in so far as it prefers creditors. In the absence of statute in cases like this the assignment should be held as an entirety by the courts and considered valid as the parties made it, or wholly void.

On rehearing.

Harmon & Ellis, for plaintiff in error.

Hugh Butler, for defendant in error.

HELM, J. At the December term, A. D. 1883, an opinion was filed reversing the judgment in this case. Afterwards, upon petition therefor, a rehearing was granted; but such rehearing was confined to two questions, which were duly stated. See 7 Colo. 303; S. C. 3 PAC. REP. 485. Upon these subjects briefs and arguments have been filed. After examination of such arguments, and the authorities cited, we are satisfied that, so far as the questions submitted are concerned, the conclusion of reversal announced in the first opinion is correct and should be adhered to. Under the circumstances we feel warranted, however, in adding at this time a few suggestions pertinent to the case.

The declaration has been made, and considerable reliance seems to be placed thereon, that no actual fraud appears in this record. It may be answered that in the evidence given before plaintiff rested there are indications of such fraud; and it is not impossible that the assignment relied on may have been tainted therewith. But as a jury had passed upon the question, we preferred to accept their finding, and rest the reversal upon fraud in law deduced from the instrument of assignment itself, and accompanying proofs.

In reviewing the authorities upon this rehearing, two or three decisions have been found which would, it seems, have sustained us had we held the assignment void in part and good as to the remainder, instead of avoiding it altogether. These cases tend to a recognition of the doctrine that such an assignment will be sufficient in equity, as well as at law, to pass the legal title to the assignee; but that in the former forum the preference given therein to certain specified creditors will be ignored, and that in equity the assignee will be required to distribute the property ratably among all the creditors. In the principal opinion we declared that the surviving partner of an insolvent firm might in the first instance "make an equitable and just assignment of the partnership effects and credits for the equal benefit of all the creditors." 7 Colo. 167; S. C. 2 PAC. REP. 906. But where he has made such an assignment as the one before us, a majority of the court entertain grave doubts, notwithstanding the cases above mentioned, as to the propriety, even in equity, of reconstructing the instrument and making a new arrangement for the parties. Section 68 of our General Statutes, adopted since this assignment was made, appears in effect to enact that such an assignment shall be void only in so far as it prefers creditors. In the absence of statute, however, we are inclined to the opinion that in cases like this the courts should treat the instrument as an entirety, and hold it valid as the parties made it, or entirely void. This view is supported by respectable authority. It is perhaps due to counsel that some notice be taken of their repeated suggestion concerning the supposed injustice of allowing the attaching creditor to secure payment and cutting off the creditors preferred in the assignment. We would gladly make or direct such order as would produce a ratable distribution of the assets among all the creditors; but the subject is not before us in such form as to warrant definite action to this end. We are not, however, prepared to say that counsel's fears in this direction need necessarily be realized. It may be that some procedure, based upon statute or otherwise, will suggest itself, through which an equitable apportionment of the firm property can yet be secured. But if there be no such relief attainable, and if some one of the creditors must have an advantage, the same may well be given to the attaching creditor in this instance. The groceries attached were sold by him to the partnership. It is true that this fact did not operate to give him a specific lien thereon for the purchase price; and it is also true that he

possessed thereby no legal superiority over other creditors; but it is a circumstance worthy of mention in response to counsel's speculations as to the inequitable distribution of assets.

The cause will be remanded in accordance with the judgment of reversal heretofore entered.

STONE, J., concurring.

(11 Or. 516)

SUPREME COURT OF Oregon.

SWEEK V. GALBREATH.

Filed February 18, 1885.

PRACTICE IN OREGON-TITLE TO LAND-JUSTICE'S COURT-CIRcuit CourtJURISDICTION.

Prior to the state of Oregon giving the right to parties to remove cases from a justice's court to the circuit court, when title to land comes in question, there was no jurisdiction in either court, upon a case of trespass brought before a justice, in which the question of title arose.

Appeal from Washington county. On motion for rehearing. See 4 PAC. REP. 749.

Thos. H. Tongue and Milton W. Smith, for appellant.

Fenton & Fenton and E. C. & W. L. Bradshaw, for respondent. THAYER, J. When the decision was made in this case, (4 PAC. REP. 749,) in which a rehearing is now sought to be had, I was very strongly impressed with the belief that where a party to an action in justice's court was compelled, in order to maintain the action, or a defense thereto, to prove title to real property, he would, if plaintiff, fail to establish his case, and if defendant, be precluded from proving his defense. The jurisdiction of a justice court does not extend to an action in which the title to real property comes in question; and I believed that the party who would have to give evidence of title in order to sustain a complaint on the one hand, or a defense on the other, would be the unfortunate party in the case. Thus, if A. were to sue B. for a trespass upon land that was unoccupied, or in the possession of a third person, and his complaint were denied by B., he would fail in his action, for the reason that he could not prove his cause of action without introducing evidence of his title to the realty. Upon the other hand, if A. were in possession of the real property in fact, and B., in order to maintain an affirmative defense, were compelled to allege and prove facts that would raise the question of title, he would fail in his defense. That a court of a justice of the peace has jurisdiction of an ordinary trespass to real property there can be no doubt. Injury to the possession of an occupant of land is an ordinary subject of the jurisdiction of that court, and I could discover no other reasonable solution of the question. The case of Cox v. Graham, 3 Iowa, 347, seems to support this view.

But, since the motion for a rehearing has been filed, my attention has been called to the decision of the Indiana courts upon similar statute to ours, which holds that if title comes in question by defense or plea the justice is ousted of his jurisdiction. Parker v. Bussell, 3 Blackf. 411. And as the legislative assembly has, since our first decision, passed an act providing for the transfer of the case from the justice to the circuit court when title to real property shall come in