¶1on petition for rehearing.
¶2The first point made is, that the decision is wrong upon the question of filing the alleged copy of the alleged first answer.
¶3Why the court would not permit it does not appear, nor does it appear that the counsel for the appellee objected to the filing; but before we can reverse, it must affirmatively be shown that the court erred.
¶4How, an affidavit attached to a paper is not proof of a fact which may be contested, viz., whether the supposed' copy was a true copy. As the affidavit was made by the attorney who presented the alleged copy, why was he not sworn as a witness, subject to cross-examination, to the truth of the copy? Then, if he established its truth, whether it should be filed or not, was of no consequence for the purpose for which he wished to use it. With or without filing* it would have been competent evidence for the appellants as a prior statement by their adversary, relating to the subject-matter of the controversy.
¶5The dispute between these parties is over proceeds of property sold to the Griffith & McDermott Construction Company. Between a garnishing creditor and an inter-pleader, any transaction not tainted by fraud, in fact, which gives to the interpleader, as against the original debtor, the fund in question, is good against the garnishment. Gregg v. Savage, 51 Ill. App. 281; affirmed, with names reversed, in 150 Ill. 161.
¶6So also, against an assignee for the benefit of creditors. Schwartz v. Messinger, 64 Ill. App. 495.
¶7To what extent possession had been taken by the inter-pleader of the purchased property, or what dealings with the mortgaged property he had permitted to the mortgagors, would be material only upon the question of whether there was an intent by the parties to commit a fraud upon creditors.
¶8The appellee having shown an original actual indebtedness to himself—if he told the truth—his statement that he thought but “ could not say ” that he had been paid for the wheel-barrows, when the case showed that the purchaser had not paid for them, is not conclusive evidence; though he does say that such payment came from one of the original debtors, who are pretty clearly insolvent.
¶9The only exceptions during the trial are to the action of the court upon that supposed copy, and refusal to peremptorily instruct for the appellants upon the facts—in neither of which matters did the court err.
¶10If less than the total fund in controversy remained due to the appellee, the appellants might have been entitled to the difference, but no such aspect of the case was presented to the court below. Payments upon the debt were affirmative facts to be proved by the party claiming the benefit of such payments.
¶11The burden of proving the negative was not upon the appellee.
¶12As to diligence upon the newly discovered evidence, the affidavit of the appellants’ attorney is, “ that prior to the time of going to trial he inquired diligently among persons doing business with William Harlev & Sons, and others, with the view to ascertain whether any of the balance of the mortgaged property had been sold, but was unable to secure any information that would throw any light upon the subject.”
¶13Such an affidavit gives the court no information as to the efforts made, but only the opinion of the affiant of his diligence.
¶14The affidavit should have gone into a minute detail of the efforts, for it was necessary that it should “ negate every circumstance from which negligence may be inferred.” Crozier v. Cooper, 14 Ill. 139; Champion v. Ulmer, 70 Ill. 322.
¶15The petition for a rehearing is denied.