majority">Mr. Justice Breese

delivered the opinion of the Court:

This was an action of replevin, in the Peoria Circuit Court, for a sorrel mare and one bay horse, brought by James S. Upton and company, against Samuel Craig, a constable, who justified under a writ of attachment, issued at the suit of one Tracy, against William H. Ely.

There was a trial by jury, and a verdict and judgment for the defendant, to reverse which plaintiffs appeal.

The only questions of importance in the case are, the validity of the chattel mortgage, under which the plaintiff claimed the property, and the legality of the levy of the writ, of attachment.

The objection taken to the mortgage is, that a fictitious note was included in it.

It appears the mortgage was taken by one Coe, an agent of plaintiffs, manufacturers of threshing machines, living in the State of Michigan. Ely had purchased of Coe one of these machines, and executed three several notes for the price, being §635, and in making the mortgage he, for some purpose not clearly explained, induced the agent to specify in the mortgage another note, payable to the plaintiffs, for §200, and this without the knowledge of his principals, which note, after holding a few months, the agent, Coe, re-delivered to Ely, his principals never, at any time, having had any knowledge of the matter.

It is insisted, this fact avoids the mortgage. It might possibly have that effect, if a then subsisting creditor had been prejudiced by it, or it had operated so as to delay or hinder him in the collection of his debt. As to such, it might be regarded as evidence of fraud, or, under the authority of the case of Wooley v. Frye, 30 Ill. 158, fraudulent per se and void.

But in this case, there was no subsisting creditor of Ely at the time of the execution of the mortgage, other than these mortgagees, and it was held in Ward v. Enders et al. 29 Ill. 519, in regard to conveyances, that it was settled by a long course of decisions in this country and in Great Britain, that however fraudulent the deed may be as against creditors, it is valid and binding between the parties, and the chattel mortgage act in no way changes this principle.

The mortgage in this case gave to the mortgagees the right to take possession of the property on default of payment of any of the notes,, at maturity. Ely was a resident of Mason county, a renter of land from Milton Lawrence, and on Tuesday the 2d of December, 1868, a short time before the last note became due, he absconded, leaving the horses in question, informing Lawrence they were under mortgage to Upton & Co. When he said to Lawrence he was going to take them away, Lawrence forbid him, and told him he would notify the parties holding the mortgage; Lawrence went to Elmwood, in Peoria county, the residence of Coe, agent of appellants, on the next Friday, and told Coe of the fact. The horses were then on the place Ely had rented and abandoned. Lawrence sent his son there when Ely left, who brought the horses to Lawrence’s stable, where they remained about one week, until Craig took them. Lawrence told Coe he had taken the horses, and had them in his barn for him, and intended they should go to the mortgagee.

There is no proof other than this going to show that Lawrence ,was the agent of Coe to keep these horses for him, but we think it sufficient to establish an agency of that nature. At any rate, it is sufficient to show that Lawrence was, under the circumstances, in the lawful possession of the property, and with the knowledge and approval of Coe, the agent of mortgagees.

The remaining point is, the legality of the attachment levy.

This property was in Knox county; thither Craig and Kighttinger proceeded—went to Lawrence’s house and asked his boy, or his wife, in Lawrence’s absence, if Ely left any horses, and being told he did, Craig asked the boy if his father had any claim on them, and the boy replying in the negative, Craig and his assistant went to the barn, untied the horses and took them to Elmwood, in Peoria county, where Craig served the attachment upon them, at the suit of Tracy.

In so taking this property, the appellee can be regarded in no other light than as a trespasser, and can not be allowed to justify his act under the writ of attachment levied within his jurisdiction. It is vain to deny that Craig went into Knox county and took the horses by virtue of' the fact that he had this writ of attachment—took the property without the leave of the party in whose custody it was, and transported it to Peoria, and there levied upon it. No law of which we are apprised, justifies this conduct. It was only at the last term of this court, we set aside the proceedings against a debtor who had been decoyed from Wisconsin to Chicago, in order that process might be served on him there.

The mischief which would result from a sanction given by this court to such proceedings are inconceivable; such a trespasser as this appellee is shown to have been, can not challenge the right of appellants to the possession of this property under their mortgage, and, without going into a particular examination of the instructions given or refused, we will say, in general terms, that all such as disregard the principles herein stated are wrong. On another trial, the court will frame the instructions in conformity to this opinion.

The judgment of the circuit court is reversed and the cause remanded.

Judgment reversed.

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