case by defendant to defeat the rights of the plaintiffs. The defendant in this action, then, so far as the pleading or the proof is concerned, was a trespasser without any right whatever, and if plaintiffs had any legal right at all it was a superior right.

It had been decreed by the probate court that the premises described in the complaint escheated to the state. This decision of the probate court was set aside by the superior court of the state. Afterward partition proceedings were instituted in the United States circuit court, the result of which, it seems to us, was to settle this case in favor of the respondents' contention. In that proceeding the respondent Allen, three of the original grantees, D. B. 448 Hannah, administrator of the estate of George Luviney, deceased, and all persons claiming as purchasers from the fourteen grantors were made parties, and even if there was a break in the title of the grantors all the parties in interest were before the United States court, and were bound by the decree which was made whereby the property was partitioned between the tenants in common, and whereby the Luviney interest was set off and decreed to respondent Allen. And we think the contention of the respondents is correct, that, even if all the parties were not before the court, still there were three of them, and the plaintiff Allen became by said decree a tenant in common with said grantees. If this be true, then a tenant in common is, as against every person but his cotenant, entitled to the possession of every part of the common land, and may recover the possession of all such land in an action of ejectment brought against a stranger to the common title: Freeman on Cotenancy and Partition, 2d ed., sec. 343; Touchard v. Crow, 20 Cal. 150; 81 Am. Dec. 108; Williams v. Sutton, 43 Cal. 65.

The proceeding against the state in which the title was de creed to be in the respondent Allen was a proceeding in rem, and the decree, being in rem, was conclusive and binding upon the defendant: Ryan v. Fergusson, 3 Wash. 356.

The judgment will be affirmed.

ANDERS, SCOTT, HOYT, and STILES, JJ., concur.

EJECTMENT THE PLEA OR ANSWER.- In ejectment the defendant need not set up title in himself: it is involved in his denial of plaintiff's right. But, if he wishes to avail himself of facts not amounting to such denial, he must plead them: Nelson v. Brodhack, 44 Mo. 596; 100 Am. Dec. 328. Facts sufticient to compel a conveyance of the patentee's title held in trust for

another, and relied upon as a defense in ejectment, must be set up in the answer: Carman v. Johnson, 20 Mo. 108; 61 Am. Dec. 593. General issue only can be pleaded in ejectment under the Illinois Revised Statutes, but the same matter may be given in evidence thereunder as in the commonlaw action of ejectment, except proofs of certain fictitious matters which are abolished: Warren v. President etc., 15 Ill. 236; 58 Am. Dec. 610. The general issue in ejectment puts plaintiff on proof of a valid legal title; other. wise the defendant's possession is prima facie evidence of title in him: Pratt v. Phillips, 1 Sneed, 543; 60 Am. Dec. 162. In ejectment, where the answer contains a simple denial of the allegations in the complaint, the defendants cannot introduce in evidence the copy of the record of a former recovery: Piercy v. Sabin, 10 Cal. 22; 70 Am. Dec. 692.

COTENANCY.-EJECTMENT BY ONE COTENANT against the holder of an ad. verse title or trespasser, to recover the whole property without joining his cotenants: See King v. Hyatt, 51 Kan. 504; 37 Am. St. Rep. 304, and note, with the cases collected.

MARX V. PARKER.

[9 WASHINGTON, 473.]

GARNISHMENT - INTERVENTION. - Although a bank summoned as a garnishee sets up that it has an account with the judgment debtor as a depositor, but that the money thus on deposit belongs to a city having been collected by the judgment defendant in his official capacity as marshal of such city, and held by the bank as such, it is error for the court, of its own motion, to require the city to appear as an intervenor. Garnishment—WHEN NOT MAINTAINABLE.—A plaintiff in garnishment can obtain no greater beneficial relief against the garnishee than the judgment debtor is entitled to; and, if the debtor's recovery is limited to a mere legal title, without beneficial interest or right of enjoyment in himself, the proceeding must fail. GARNISHMENT OF TRUST FUNDS.-A judgment creditor cannot have his debt satisfied out of property held in trust for another, no matter how completely his debtor may have exercised apparent ownership over it, unless it was upon the faith of such ownership that the credit was given. GARNISHMENT OF TRUST FUNDS.-Moneys belonging in equity to a city, but deposited in bank by one of the city's officers in his individual name, cannot be garnished in a suit against him by his individual creditors.

GARNISHMENT OF TRUST FUNDS. A public officer of a city, though re quired to give bond for the proper payment of moneys coming into his hands officially, is a bailee and not a mere debtor of the city, and, although he deposits such moneys in bank in his individual name, they cannot be garnished at the suit of his individual creditors.

A. Sherman and Kerr & McCord, for the appellants.

Alexander & Alexander, for the respondents.

474 STILES, J. Marx & Jorgenson having obtained a judgment for money against W. S. Parker, summoned the First

AM. ST. REP., VOL. XLIII.-54

National Bank of Fairhaven as a garnishee. The bank answered that it had an account with Parker as a depositor, wherein he was credited with eight hundred and forty-five dollars and fourteen cents; but it alleged that the money deposited was money of the city of Fairhaven, which Parker, as marshal of that city, had collected in his official capacity, and this fact, at the hearing, it established to a moral certainty. The account was kept in the individual name of Parker, but it was understood that none but city money would be deposited in that account, and that none but checks in favor of the city treasurer would be drawn against it. Still, it was in no sense a special deposit, but the money was used by the bank for its own purposes, with the understanding that it would be required at the expiration of each month, when the statute required the marshal to settle with the treasurer: Gen. Stats., sec. 655.

It was error for the court, of its own motion, to require the city of Fairhaven to appear as an intervenor. It would have neither gained nor lost by the result of the proceeding: Horn v. Volcano Water Co., 13 Cal. 62; 73 Am. Dec. 569.

It was a proper case for an interpleader on the motion of the bank under the Code of Procedure, section 152; but no such motion was made. Therefore the city must go out of the case, in any event.

475 The disposition of this case depends upon the settlement of two questions: 1. What were the rights of respondents as plaintiffs in the garnishment proceeding? 2. What relation did Parker, as marshal, bear to the city of Fairhaven touching the money collected by him and deposited with the bank?

1. It is a general rule in garnishment that the plaintiff can obtain no greater beneficial relief against the garnishee thau the judgment debtor would be entitled to, and that, if the debtor's recovery would be limited to a mere legal title, without beneficial interest or right of enjoyment in himself, the proceeding must fail. A judgment creditor cannot have his debt satisfied out of property held in trust for another, no matter how completely his debtor may have exercised apparent ownership over it, unless it was upon the faith of such ownership that the credit was given: Wade on Attachment, sec. 416; Morrill v. Raymond, 28 Kan. 415; 42 Am. Rep. 167; Farmers' etc. Bank v. King, 57 Pa. St. 202; 98 Am. Dec. 215. Therefore, if the deposit in the bank was, in equity, the

property of the city, although it stood in Parker's name, respondents had no right to a judgment against the garnishee.

2. The respondents present several propositions, supported by authority, to the effect that a custodian of public funds,. who is required by law to give a bond for the proper disposi tion of the moneys coming to his hands, is not a mere bailee, but is a debtor; and the argument is drawn therefrom that. the money which he receives is his, and can be applied to the payment of his debts.

The general rule is conceded to be that an agent can, under no circumstances, so deal with his principal's property or money that the former cannot, as against him, follow and recover it or its proceeds, whatever shape he may have caused it to take. And all persons into whose 476 hands the prin cipal's property, or its proceeds, may come, with notice of its character, are likewise responsible to him in a proper action: National Bank v. Insurance Co., 104 U. S. 54; Farmers' etc. Bank v. King, 57 Pa. St. 202; 98 Am. Dec. 215; Van Alen v. American Nat. Bank, 52 N. Y. 1; Overseers of Poor v. Bank of Virginia, 2 Gratt. 544; 44 Am. Dec. 399; Meadowcroft v Agnew, 89 Ill. 472.

Now, a collector or treasurer of a municipal corporation, without bond and without statutory obligations, would at com-mon law be a mere bailee, and the rules governing bailmentswould apply to him the same as any other agent. But it is universal that such officers are required to give bonds, and that statutes govern their liability, and out of this fact have grown many cases which seem at first glance to sustain the view that they are debtors and not bailees, and that the money they receive is their own.

In Inhabitants of Colerain v. Bell, 9 Met. 499, it was said: "The specific money received by a collector, in the collection of taxes, is his money, and not that of the town."

In Inhabitants of Hancock v. Hazzard, 12 Cush. 112, 59 Am. Dec. 171, the court, speaking of a collector of taxes, said: "His obligation is not regulated by the law of bailments, and the cases cited to that effect are not applicable. He is a debtor, an accountant."

In Egremont v. Benjamin, 125 Mass. 15, concerning a town treasurer, the expression was used: "He was not a bailee of the moneys received, but an accountant."

Halbert v. State, 22 Ind. 125, declared it to be well estab

lished that a public officer required to give bond for the proper payment of moneys coming into his hands officially, is not a mere bailee of the money. Rock v. Stinger, 36 Ind. 346, held that the technical legal title to 477 money in the hands of a township trustee was in himself, and that a loan of such money did not constitute an illegal transaction; and so, in Shelton v. State, 53 Ind. 331, 21 Am. Rep. 197, it was ruled that there could be no recovery against a county treasurer for interest received by him on deposits of county funds in a bank, because the money received by him became his own money. This case notes the absence of statutory provisions, which will be spoken of hereafter. Perley v. County of Muskegon, 32 Mich. 132, 20 Am. Rep. 637, contains an elaborate review of the subject in an action for money had and received against third persons alleged to have received and used money furnished by a county treasurer out of county moneys in his hands, and it was held that the officer was not a bailee merely, and that the action brought would not lie; yet the opinion strongly intimates that an action on the case or a bill in equity might be sustained. So far has the argument drawn from these cases been carried, that, in State v. Keim, 8 Neb. 63, it was held that the state could not recover money deposited by its treasurer in a bank, on the ground that it was a loan of money prohibited by statute, and not the result of a conspiracy to obtain public money; and in First Nat. Bank v. Gandy, 11 Neb. 431, a judgment creditor of a county treasurer was awarded judgment against a bank, as garnishee, of funds deposited with it by the officer as treasurer. The statute made it a crime for the treasurer to loan public money, and the bank was held to be estopped to set up the fact that it had assisted in the accomplishment of the forbidden act.

A leading case on this subject is United States v. Prescott, 3 How. 578, where it was said in an action on the bond of a receiver of public moneys: "This is not a case of bailment, and, consequently, the law of bailment does not apply to it. The liability of the defendant arises out of his official bond, and principles which are founded upon public policy."

478 The case last cited was followed in United States v. Morgan, 11 How. 154, and United States v. Dashiel, 4 Wall. 182. But United States v. Thomas, 15 Wall. 337, cleared the atmosphere surrounding the point in discussion to a very great extent. The decision in that case, reviewing the former