Mr. Justice Baker
delivered the opinion of the Court:
The material question in this case is, whether or not the' instrument which, on December 18, 1887, was executed and delivered by Silverman to Cohen, is such a voluntary assignment as will, under the act of May 22, 1877, (Laws of 1877,, p. 116,) confer jurisdiction and authority upon the county court -to supervise the execution of the trusts created by or; growing out of such instrument, and the administration of th» property thereby conveyed.
By the act its provisions are made applicable “in all eases of voluntary assignments hereafter made for the benefit of creditor or creditors.” In the late case of Farwell et al. v Nilsson etal. 133 Ill. 45, it was said: “The word ‘assignment’ had, at the time this statute was adopted, a well defined meaning, understood by all the people, and it has no different meaning in said act. According to the common acceptation of the term it is a transfer, without compulsion of law, by a debtor, of his property to an assignee, in trust, to apply the same, or the proceeds thereof, to the payment of his debts, and to return the surplus, if any, to the debtor.” And in the same case it was said: “The mere form of the instrument is, no doubt, immaterial, provided the operation of it is to create a trust in the property conveyed, for the benefit of creditors, and if such is the purpose and design of the instrument, then any preference in it, or which, by construction of law, forms a part of it, is in fraud of the statute, and void.” In Preston et al. v. Spaulding et al. 120 Ill. 217, it was said: “The statute is silent as to the form of the instrument or instruments by which an insolvent debtor may effect an assignment.” And in one of the earlier cases that arose under the statute, (Hanchett v. Waterbury, 115 Ill. 220,) it was said “that the right and power of a failing debtor to pass the title of his effects to an assignee remain as they did before the statute.” In the ease of Weber v. Mick et al. 131 Ill. 520, in speaking of the subject of a voluntary assignment for the benefit of creditors, we said that such an assignment was and had “always been understood to be an instrument voluntarily executed by a failing debtor, by which he assigns to some third person, as assignee or trustee, the whole, or sometimes the bulk, of his property, to be by such trustee distributed among the assignor’s creditors in satisfaction of their demands.” In Schroeder v. Walsh, 120 Ill. 403, this court, in speaking of such assignments and of the statute of 1877, said: “That act applies only to conveyances of property to an assignee or trustee, in trust, to convert the same into money for the benefit of creditors of the assignor.” And to this statement was added this further clause: “Which can now only be made under that law.”
: Since the right and power of the failing debtor to pass title to an assignee remain as they did before the statute, and since ’the mere form of the instrument is immaterial provided it op•erates to create a trust for the benefit of creditors, and since •the word “assignments” found in the act has no different meaning than that which it had at the time the statute was adopted, and prior thereto, it would seem that the expression, “which ■can now only be made under that law, ” signifies, merely, that . all voluntary assignments for the benefit of creditors must he carried into execution in conformity with the principles and rights established by that act, and that administration of the .trusts may be enforced by the court to which the act gives jurisdiction over the particular subject matter of such voluntary assignments.
Waiving, for the present, the question of the capacity of Silverman to make a voluntary assignment, and the fact that the instrument executed purported to assign certain specified property and contained no general terms that would include other property, and waiving, also, various matters of supposed non-compliance with statutory requirements, we think it man-' ifest, as well from the citations made above from former decisions of this court as from the doctrine laid down in the books and in cases adjudicated in other courts, that said instrument was an assignment for the benefit of creditors, and not a mere mortgage, security or pledge. By it, Silverman sells, assigns, transfers and sets over unto Daniel Cohen the goods and chattels therein mentioned, and it provides that said Cohen shall take, hold and receive the goods and chattels thereby conveyed, in trust, to sell the same at public sale, in such quantities as he may see fit, and out of the proceeds pay expenses and certain debts in a specified order of payment, and it contains a proviso that the trustee shall not sell any more of said goods, and property than is sufficient to pay said indebtedness and expenses. Some of the specified debts were due and some were not due. The instrument, on its face, was an absolute trans-. fer of the whole interest, legal and equitable, in the property. In express terms it created a trust in favor of certain creditors of Silverman other than Cohen. The fact that a debt due Cohen was also provided for, did not take from the instrument its character of an assignment for the benefit of creditors. A creditor of the assignor may be the assignee in such an assignment. There is no condition of defeasance, providing for the return of the property upon the payment of the debts mentioned. At most there was an express provision for a resulting trust for any excess of assets over liabilities, and that much the law itself implied. A correct definition of an assignment for the benefit of creditors, as we understand the law, is given in the American and English Encyclopaedia of Law, and it is this: “A voluntary transfer by a debtor of all or a part of his property to an assignee or assignees, in trust, to apply the same, or the proceeds thereof, to the payment of some or all of the assignor’s debts, and to return the surplus, if any, to him.” See vol. 1, pp. 845, 846, and authorities cited.
Since appellee claims title under the instrument of December 14, 1887, and appellants have no ease in court except as based thereon, it would seem that the capacity of Silverman to execute the same must necessarily be admitted by both parties, and that the only issue between "them in regard thereto can be in respect to its legal effect. The Assignment act of 1877 is not, in express terms, confined to debtors who either are in fact insolvent or contemplate insolvency. The expression, “assignment for the benefit of creditors,” implies insolvency, and an inability on the part of the debtor to provide for the claims of his creditors in the usual way. It is to be presumed that a debtor who is or thinks he is solvent will not transfer his estate, and yield up all dominion over it, for the purpose of having it administered upon under the supervision of a court; and it is unreasonable to suppose that the legislature contemplated or intended that the provisions of the act should be applicable to a solvent debtor. In Hanchett v. Waterbury, 115 Ill. 220, this court held that said act was, in its framework and detail, essentially a general insolvent law, and' that it was so intended by the legislature. In Gardner et al. v. Commercial Nat. Bank, 95 Ill. 298, it was held that a solvent debtor could not make a valid deed of assignment for the benefit of creditors. It follows that the allegation of the assignor’s insolvency contained in the petition is material to the case made by the petition, but we think that the statements of the answer, they being taken most strongly against the pleader, sufficiently admit such insolvency.
The questions whether a parol assignment of property, or a constructive voluntary assignment of property for the benefit of creditors, are voluntary assignments for the benefit of creditors within the contemplation of the Assignment act, are discussed at great length in the briefs and arguments; but since here the assignment was by deed, though not in the usual form, duly signed, sealed and delivered, and a trust for the benefit of creditors was created therein in direct and express language, no such questions are involved in the record, and we must decline to consider them.
The instrument here in question transferred to the assignee certain specified goods and chattels, and it contained no general terms that would embrace other property. A general assignment of all property is the most usual species of voluntary assignments. From the fact that the act of 1877 provides that the debtor shall annex to the assignment “an inventory, under oath or affirmation, of his, her or their estate, real and personal,” an implication, more or less strong, arises.that the statute contemplates general assignments, only. This assignment is not, upon its face, a general assignment. If, from the implication above noted, and from any implication that might arise from the use of the term “voluntary assignments,” or otherwise from the provisions of the act, it were deducible that general assignments, alone, are within the statute, yet the absence of general terms in the deed could be holpen by .-averment and proof. In United States v. Howland, 4 Wheat. *108, Chief Justice Marshall said: “The deed then conveys •only the property contained in the schedule, and the schedule does not purport to contain all the property of the parties who made it. In such a case, the presumption must be that there is property not contained in the deed, unless the contrary appears. The onus probandi is thrown on the United States. * * * The depositions do not aid the deed. The .■question whether the whole property is assigned is still left to conjecture, and this being the fact on which the preference of -the United States is founded, ought to be proved. Not being proved, the court is of opinion that it is not a case in which it can be claimed. ” In United States v. Dayton, 5 Mason, 280,, •Justice Story said: “I agree at once to the reasoning at the -bar, that if the assignment be in fact of all the debtor’s property, although it does not so appear upon the face of the in-. strument, the priority of the United States attaches. The same rule applies if a small part be left out for the purpose -of fraudulent evasion of that priority.”
In the case at bar the petition avers that the stock of goods sold, assigned and transferred to Daniel Cohen composed all ■the property and estate of any value belonging to George Sil- « verman. The answer neither admitted nor denied this allegation, but stated that the defendant, Cohen, was not “able to say whether said stock constituted all of Silverman’s property.” Without the statute itself operated to convert the partial assignment into a general assignment, the chancery rule which is applicable to the case made it incumbent upon the •petitioner to prove said averment before it could make in his favor, and he did not do so.
Is a voluntary assignment which upon its face is but a partial assignment, so enlarged by the statute as to make it a -general assignment ? It would be entirely competent for the .legislature to provide that every voluntary assignment for the ^benefit of creditors, whether a general assignment on its face or purporting to be a partial assignment merely, should be deemed and taken to include all the property and estate of the assignor not exempt by law. This statute does not so provide in express terms, and the question arises whether or not it so provides by implication. There are several provisions of the act which seem to be somewhat indicative of such an intention; but these and all other provisions of the statute must be so interpreted, if it is reasonably possible, as that due effect shall be given to all the provisions of the act. Section 1 provides that “in all cases of voluntary assignments”' the debtor or debtors “shall annex to such assignment an inventory, under oath or affirmation, of his, her or their estate, real and personal, according to the best of his, her or thenr knowledge; * * * but such inventory shall not be conclusive as to the amount of the debtor’s estate.” Since the statute uses the words “all eases, ” and predicates of “all cases” the annexing of “an inventory, under oath or affirmation, of' his, her or their estate, real and personal,” it affords plausible-ground for the claim, that by force of the statute all voluntary assignments are general assignments, and cover all property of the assignor or assignors that is not exempt by law. But it is to be noted that section 8 of the act provides “that no-assignment shall be declared fraudulent or void for want of' any list or inventory as provided in the first section of this-aet.” This latter provision, and the omission of any negative "words in the clause of section 1 under consideration, indicate-that the provision in said clause for a sworn inventory, “in all" cases,” of “his, her or their estate, real and personal,” is directory, only. What is, however, of much more moment, is that section 1, and in the last clause of the same sentence in which is found the provision for such inventory “in all cases,”' it is expressly stated that “such assignment shall vest in the assignee or assignees the title to any other property, not exempt by law, belonging to the debtor or debtors at the time of making the assignment, and comprehended within the general' terms of the same.” This is a legislative declaration of the legal effect of, and of the limitation to be placed upon, a voluntary assignment. The expression of one thing is the exclusion of another. It is very manifest that a deed of assignment passes the title of all property specified in the deed, or in the inventory annexed thereto. What other, if any, property or estate does it transfer? Said last clause answers this question by saying, “any other property, not exempt by law, belonging to the debtor or debtors at the time of making the assignment, that is comprehended within the general terms of the assignment.” It must be presumed that if it had been the legislative intention that by force of the act the title to all property of the assignor or assignors, not exempt by law, should vest in the assignee or assignees, such intention would either have been expressed in plain and apt words, or that, at the very least, language would have been used which by a liberal interpretation could be construed to include all such property. Here, after the legislature had said, “such inventory shall not be conclusive as to the amount of the debtor’s estate, but such assignment shall vest in the assignee or assignees the title to any other property, not exempt by law, belonging to the debtor or debtors at the time of making the assignment,” it was not satisfied with the language employed, and added these words of limitation: “and comprehended within the general terms of the same. ” These words of restriction can not be ignored. It must be presumed that they were used intentionally, and for a purpose. Their natural and necessary effect is to limit the scope of every voluntary assignment to the property that is either named in the deed, or mentioned in the inventory, or comprehended within the-general terms of description found in the assignment.
An argument that the act makes every voluntary assignment, though partial on its face, a general assignment of all property, is deducible from the provisions in section 8 that the county court may compel the debtor or debtors “to answer, under oath, such matters as may * * * be inquired of him, her or them,” and that “such debtor or debtors may * * * be fully examined, under oath, as to the amount and situation of his, her or their estate.” But a few suggestions will effectually dispose of such argument. Said provisions are merely permissive, and simply give to the county court a •discretionary power, to be exercised only in a ease wherein the circumstances of such particular case demand or call for its exercise. When property covered by the particular descriptions found in the deed or the inventory, or comprehended ■ within the general terms of the assignment, is not discovered •or delivered to the assignee, the authority delegated in this ■section 8 may properly be invoked. That under this section the county court is not authorized, in the case of a partial •assignment and in the absence from the terms of the assignment of general descriptions of or calls for property, to hold the assignment to be a general assignment of all property not exempt by law, is plainly indicated by the concluding clause •of the section, that the county court “may compel the delivery to the assignee or assignees of any property or estate embraced in the assignment.”
Upon a careful consideration of all the various provisions of the act of 1877, we are of opinion that a voluntary assignment which is upon its face a partial assignment, and which does not in fact purport to transfer substantially all the property of the debtor, and which contains no general terms descriptive of property, is not, by force of the act, converted into a general assignment of all the property of the debtor that is not exempt by law.
It not appearing that the assignment at bar is a general •assignment, the question necessarily arises, is a partial assignment an assignment within the purview of the Voluntary Assignment act? In Weber v. Mick et al. 131 Ill. 520, in discussing said act, we quoted from Burrill on Assignments This language: “Assignments may be made either to the "whole body of the creditors or to particular creditors, or they may be of all or a part of the debtor’s property; but unless a trust is thereby created by the assignor, in favor of creditors, such conveyances are not within the class of instruments known as assignments for creditors.” In section 1 of the act •are found these expressions : “In all cases of voluntary assignments,” arid “any other property * * * comprehended "within the general terms of the same,”—i. e., the assignment. In section 8 occurs this expression: “And may compel the delivery to the assignee or assignees of any property or estate ■embraced in the assignment.” Section 9 provides for an additional inventory of property “under said assignment.” Section 11 gives authority to the assignee or assignees “to dispose of all estate, real and personal, assigned.” The power delegated by section 12 to the new assignee who succeeds to the trust, is “to execute the trust embraced in such assignment.” By section 14 all debts and liabilities are required to be paid pro rata, “from the assets 'thereof,”—i. e., of the assignment. These and like expressions in the act, taken in connection with the context in which they are found, indicate that the General Assembly recognized the fact that in some cases of assign- • ment an assignor would have “other property” which was not comprehended within the terms of the assignment.
It is conceded by counsel upon both sides that almost all of the sections of our Assignment act are literal copies of sections in the general assignment law of Iowa. In the Iowa statute, however, the words found in the first section are these: “General assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors.” In our statute, in lieu of said language, these words were substituted: “In all cases of voluntary assignments hereafter made for the benefit of creditor or creditors.” It must be presumed that these changes in phraseology were for a purpose, and indicative of the legislative will. The Iowa act operates upon general assignments, and makes every general assignment void. that is not for the benefit of all creditors in proportion to their claims. Our statute regulates “all cases of ‘voluntary assignments,” whether such assignments purport to be made for the benefit of all creditors or only some of them, or merely “one” creditor, and it operates upon the estate, real and personal, that is designated in the instrument of assignment, or in the inventory annexed thereto, or that belongs to the debtor, is. not exempt and is “comprehended within the general terms” of the instrument, and upon such property only; and instead of rendering the assignment void for preferences, it avoids the preferences, and distributes the assets assigned, pro rata, upon all debts and liabilities of the assignor.
Since the act of 1877 regulates “all cases of voluntary assignments, ” the assignment now at bar, even if but a partial assignment, is, if otherwise a valid voluntary assignment, to be governed by and administered under the provisions of that act. This conclusion seems to necessarily follow from a consideration of the provisions of the act. There is reason and justice and equity in the rule thus established by the statute., To illustrate:—If A is in failing circumstances, and insolvent, and is owner of a store house and fixtures, and a stock of merchandise therein, and of notes and accounts growing out of the business carried on there, and is also the owner of a farm, and of the live stock and agricultural implements and machinery connected therewith, and of the crops growing thereon, no reason is perceived why he may not be permitted to assign the estate and property first mentioned, and have it converted into money and the proceeds distributed under the supervision of the county court, pro rata upon his indebtedness, and he still retain title to the farm and property connected therewith, and continue his business of farming. Of course, the property retained, so far as not exempt by law, would still be liable to sale on execution, if his creditors, or any of them, saw fit to avail themselves of their legal rights in that behalf. An arrangement such as suggested might in very' many instances, where there was trust and confidence, be for the pecuniary advantage of both the debtor and his creditors. The disposition made of that portion of the property assigned would, in such case, be eminently just and equitable, and in exact conformity with the substantial principles established by the Voluntary Assignment law,—i. e., that the administration should be under the supervision of a court, and the distribution pro rata upon all debts and liabilities. It is difficult to see how the execution of such an assignment is in fraud of the statute, or in derogation of its substantial requirements; and if an insolvent debtor, in fraud of the act and for the purpose of creating illegal preferences, assigns a portion of his property to a trustee, he is bound to know that under the law the assignment will work for the benefit, pro rata, of all his creditors.
That the county court has jurisdiction and authority to administer in case of a partial assignment, is consistent with prior announcements of this court that the right and power of a failing debtor to pass the title of his effects to an assignee remain as they did before the statute, but that the power to control the distribution and beneficial enjoyment of his property upon such a transfer of the title is essentially different from what it was before the statute, and other like announcements of the law, is in conflict with no former decision of the court, and is also consistent with and justified by the language of the act itself, and tends to advance the remedy provided by that act and effectuate the legislative intention. On the other liand, if a partial assignment to a trustee for creditors is not within the purview of the act, then an insolvent and failing debtor may, prior to his retirement from business, transfer a moiety or some substantial part of his property to a trustee, and for the benefit of only one or a few of his creditors, and leave the other moiety or part of his assets subject to process of the courts at the instance of his other creditors, and thus in reality make an assignment with preferences, and successfully and with impunity evade and defraud the statute.
Our conclusion, then, is, that the mere fact that it does not affirmatively appear that the assignment embraced all the-property of Silverman, does not prevent the jurisdiction of the county court from attaching, or prevent the estate assigned being distributed in that court in conformity with the rule of equality established by the statute.
It is urged that section 1 of the act provides, in express-terms, that “every assignment shall be duly acknowledged and recorded,” etc., and that this, assignment was not acknowledged and was not recorded, and that by reason of such failure to record and want of acknowledgment the instrument did not become a voluntary assignment under the statute, and the jurisdiction of the county court to compel the due execution of the trusts supposed to be created by the instrument and by force of the statute did not attach. It is to be noted that no-negative words are used in the act declaring the invalidity of assignments not acknowledged and recorded: The general rule applicable where no negative words are employed in the statute is thus stated in Cooley’s Constitutional Limitations, (* 78): “Those directions which are not of the essence of the thing to be done, but which are given with a view merely to-the proper, orderly and prompt conduct of the business, and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory ; and if the act is performed, but not in the time or in the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial purpose of the statute.”
The Iowa statute, from which our act was largely taken, is much more definite than ours in respect to the matters of acknowledgment and recording, and prior to the adoption of our statute the Supreme Court of that State held that it was not. necessary that a deed of assignment conveying personal property should be acknowledged and recorded, where possession accompanied such conveyance. (Meeker v. Saunders, 6 Iowa, 61.) In Zimmerman v. Willard et al. 114 Ill. 364, the assignment was in fact acknowledged, and the question here at issue was not in the case, and it was merely held that the certificate of acknowledgment then before the court was in substantial compliance with the act relating to voluntary assignments. In Myer v. Fales’ Sons & Co. 12 Bradw. 351, it was held that an assignment of personal property takes effect at the time of the delivery to the assignee of the deed of assignment and the property, and it was there said by Casey, J.: “When the insolvent debtor makes and acknowledges the deed of assignment, and delivers it, with the property, to the assignee, what more can he do or is he required to do ? He does not retain the deed of assignment in his possession. He has no control over it, and he could not have it recorded. That duty devolves upon the assignee. If the latter is guilty of misconduct or bad faith, or is tardy in the performance of his duty, it should not be said that the rights of the insolvent debtor or the creditor are thereby changed or prejudiced.”
The Assignment act was intended mainly for the benefit of the creditors of the insolvent. The creditors of Silverman are not here objecting to the want of a certificate of acknowledgment, or because the deed was not recorded. On the contrary,' they are seeking to obtain, under the deed, the beneficial interests that the legislature intended should be conferred upon them by the statute. The petitioners are creditors of Silver-man to a considerable amount, and the record shows that some twenty-one different firms and individuals, also creditors of Silverman, joined in a supplemental petition, in which they * prayed as in the petition of John Y. Far well & Co.” Silver-man and Cohen are the defendants to the petition. Silverman executed the deed of assignment to Cohen, as assignee, and delivered it to him, and with it delivered possession of the assigned property, and Cohen took and retained the property, by virtue of the deed, and is even now claiming title under it. They have affirmed and are affirming the validity of the deed as against the creditors. They can not be allowed to blow both hot and cold with one breath. They are equitably es-topped from now saying the instrument is not the deed of Silverman, or from objecting to it because it was not acknowledged and recorded. No matter what they call the instrument, the law makes it a voluntary assignment. Nor is it a matter of any moment that they supposed it was an instrument for the benefit of a few chosen creditors, for the statute enlarged the trust and made it inure to the benefit of all the creditors. It was the statutory duty, then, of Silverman to acknowledge it, and the statutory duty of Cohen, before accepting it and taking possession of the property, and assuming the trust created thereby, to see that it was properly acknowledged and have it recorded. Having failed in the performance of their bounden and statutory duties in that behalf, tlry should not now be allowed to plead their own shortcomings to the detriment of the rights and equities of the beneficiaries in the trust. The deed made appellee a trustee, and he accepted the trust, and reduced the trust property to his own possession. Under the statute, the creditors were the beneficiaries in that trust. It is manifest that the trustee can not now set up his own ■culpable negligence, or willful disregard of dirty, for the purpose of despoiling his cestuis que trust of their interest in the trust estate.
Suppose the provisions of the statute in respect to the execution, acknowledgment, recording, etc., of the deed of assignment have not been complied with, what then ? The creditors are not complaining on that account. The claims of no execution creditor or attaching creditor or stranger to the deed, are involved. Who, then, is authorized to take advantage of the acts of omission of the insolvent and his assignee? Im Farwell et al. v. Crandall, 120 Ill. 70, this court said: “It is: an error to suppose that the jurisdiction of the county court; depends upon the validity of the deed of assignment. For the-purpose of jurisdiction, it is sufficient that there has been an assignment in fact for the benefit of creditors. This is conclusively shown by the well recognized doctrine that a fraudulent assignment is voidable at the election of the creditors, only. Hence, if the latter do not object, the court may nevertheless go on and administer the assets. ” Like doctrine should be held in the case now at bar.
An assignment already made is a preliminary requisite to the exercise of any jurisdiction whatever by the county court. The sole power of the court is to supervise and regulate the administration of a trust previously created by the act of the assignor. In Hanchett v. Waterbary, 115 Ill. 220, it was held by this court that upon the making, filing and recording of the assignment, with the lists and schedules annexed, the county court wherein such assignment is filed and recorded, by operation of law, at once acquires jurisdiction over and becomes possessed of all the property and estate embraced within the assignment. The duty of filing and recording the assignment, and an inventory and valuation of the estate assigned, is imposed upon the assignee. But suppose he fails or refuses to perform any or all these duties, does the assignment fall stillborn on that account ? We think not. The assignee is not the only party interested in the assignment. The assignor has an interest that the property assigned- should be paid in satisfaction of his debts. All the creditors of the assignor are interested in the matter of the assignment, and have a legal right to receive their proportionate shares of the assets.
Section 14 of the act confers upon the county court “full authority and jurisdiction to execute and carry out the provisions” of the act; section 7 provides that the assignee, in the execution of assignments, shall at all times be subject to the order and supervision of the county court, and that said court may, by citation and attachment, compel the assignee to file reports- of his proceedings, and of the situation and condition of the trust, “and to proceed in the faithful execution of the duties required by this act;” and section 12 provides, that in case any assignee shall fail and neglect, for the period of twenty days after the making of any assignment, to file an inventory and valuation, and give bond, as ¿required by the act, it shall be the duty of the county judge of the county where such assignment may be recorded, on the application of any person interested, as creditor or otherwise, to appoint one or more discreet and qualified person or persons to execute the trust embraced in such assignment, etc.
The provision of section 1 of the act is, that “the assignment shall be recorded in the county where the person or persons making the same reside, or where the business in respect of which the same is made has been carried on.” The expression in section 12, “where such assignment may be recorded,” means the county where it is recorded, or if not recorded, then the county where'it is legally permissible to record it. The county court referred to in the act, and the county judge referred to in section 12, are the county court and the county judge of the county in which the assignor resides or in which the business in respect of which the assignment is made has been carried on; and if the residence happens to be in one county and the situs of the business in another, then the jurisdiction attaches to such one of said county courts and to such one of said county judges as first obtains jurisdiction of the subject1 matter. It may be said in answer to suggestions made, that there is no intimation in the record, or otherwise, that the circuit court or chancery court, or any court other than the Vermilion county court, had or claimed jurisdiction of the subject matter of the assignment here under consideration, either before or since the institution of this proceeding, except upon the appeal prosecuted herein to the circuit court from the judgment of the county court, and therefore no question of a conflict of jurisdiction arises, and it will be time enough to dispose of that matter when it does arise.
It may also be said, that courts are not accustomed to take jurisdiction or to act of their own motion, and it is not to be presumed that the county court or county judge will act in a matter which is not properly brought before it or him. No reason is perceived why the presentation of a petition, such as that found in this record, made by a creditor of the insolvent debtor, or by some other party in interest, is not a proper and competent way in which to call upon the court to act in the premises. That an assignment, in fact, for the benefit of creditors has been made, that a period of twenty days has elapsed since the making of such assignment, and' all other facts deémed essential to put the court in motion, may properly enough be shown, prima facie, by such petition verified by affidavit. Assuming that the assignee named in the deed of assignment is a necessary party to any proceeding instituted for the purpose of. establishing the trust, and removing him from office, and appointing another assignee in his place and stead, we think a citation may properly issue against him. If, as appears in this record, he has entered upon the execution of the trust to the extent of accepting the deed of assignment and taking and holding possession of the assigned property, and assuming to exercise the power of selling and disposing of it, he may, although he has not become an assignee de jure under the statute, by complying with its requirements, nevertheless be regarded as an assignee de facto or assignee de son tort, and brought into court by citation or attachment, under the provisions of section 7 of the act.
The act, as we have frequently held, is remedial, and should be liberally construed, and so as to remedy the evils intended to be cured and advance the remedy. When a voluntary assignment is made, and the property assigned has passed into the possession of the assignee, such property is thereby brought within the jurisdiction and under the administrative control of the county court. '(Preston v. Spaulding et al. 120 Ill. 208.) It is true, the making of the assignment must precede the exercise of jurisdiction; but when & prima facie case of a voluntary assignment is exhibited to the court, it then devolves upon such court to judicially investigate such case, and determine whether or not a voluntary assignment has in fact been made, whether or not the particular instrument in question is such an assignment, and whether or not it was executed by the supposed assignor, and in the event it is judicially ascertained that it is such an assignment, then the duty is imposed upon the court to execute and carry out the provisions of the Voluntary Assignment act in respect thereto. In the very nature of all judicial proceedings, the court in which any such proceeding is instituted must, at the very threshold, meet and i determine, either expressly or by necessary implication, this question of jurisdiction.
Our conclusions upon the whole matter are, that in the findings, judgments and orders made and entered by the county and circuit courts there was no substantial error, and that, they should be affirmed. Inasmuch as the Appellate Court reversed the.same, such judgment of reversal is erroneous, and; should be and is reversed, and the cause is remanded to the county court for further proceedings.
Judgment reversed.