delivered the opinion of the Court:
Plaintiffs in error rely upon two grounds to reverse the judgment of the Appellate Court: First, that the claim is. ■barred by section 10 of the Assignment act; and second, that ■the property replevied was leased by Byhiner & Co. to Ellison '■& Son, and was destroyed by fire while in their possession, without the fault or negligence of Byhiner & Co.
Section 2 of the act concerning voluntary assignments provides that the assignee “shall forthwith give notice thereof by publication in some newspaper, which publication shall be continued six weeks, and shall forthwith send a notice thereof by mail to each creditor of whom he or they shall be informed, directed to their usual place of residence. ” Section 10 provides-that “all creditors who shall not exhibit his, her or their claim within the term of three months from the publication of notiee as aforesaid, shall not participate in the dividends until after the payment in full of all claims presented within said time- and allowed by the court.”
It will be observed that at the time the assignment was made and the notice given by the assignees, the defendant in error was not a creditor.. The property which he levied upon by execution had been replevied by Byhiner & Co., but, whether he would ultimately have a debt or claim against that firm depended upon a contingency. If he defeated them in the action, and they failed to return the goods and respond in damages for the taking, then he would become a creditor, otherwise he would not. It was therefore impossible for defendant in error to present his claim within three months after the publication of the notice. If, therefore, his claim is now barred, he will be deprived of sharing with other creditors in the assets of the insolvent, when, at the same time, he has exercised all the diligence which he could exercise to present his claim to the assignees. It is plain that a construction of this character is contrary to the entire scope and spirit of the act,as the act, in express terms, prohibits a preference among creditors, as will be seen by an examination of section 13. That section declares: “Every provision in any assignment hereafter made in this State, providing for the payment of one debt or liability in preference to another, shall be void; and all debts apd liabilities within the provisions of the assignment shall be.paid pro rata from the assets thereof.” The defendant in error, at the time of the assignment, did not have a debt, but there was a liability. True, the liability was a contingent one, but nevertheless it was a liability, and as such, by the language of the section, entitled to a share in the assets.
The section of the statute relied upon by plaintiffs in error no doubt requires all who may be creditors at the time of the assignment to present their claims within three months, whether the claims may be due or not due; but the section of the statute evidently has reference to existing creditors, and not to such persons as may, in a contingency, afterwards become creditors. The act contains no provision barring those who may become creditors after the expiration of the three months’ notice. As to such persons it is silent, and we are not inclined to extend a statute of limitations to eases which do not seem to' fall within its terms—especially when a construction of that character would work a manifest injustice to. a person who has done all in his power that he could do to observe the requirements of the statute in order to protect his claim.
The statute in question is similar to a statute in force in this State requiring claims against the estate of a deceased person to be exhibited to the county court within a specified time, otherwise such claims are barred; and the construction which may be placed on the one statute, may, upon principle, be applied to the other. That statute provides' that all demands against an estate not exhibited to the county court, within two years from the granting of letters of administration shall be forever barred, except as to subsequently discovered estate not inventoried or accounted for by the executor or administrator. The construction of this statute was before us-in Dugger v. Oglesby, 99 Ill. 410, where the claim presented for allowance after the expiration of two years was not an existing claim at the time letters of administration were issued. It is there said: “All the property, both real and personal, belonging to the estate, was inventoried, so that there were no-subsequently discovered assets. The eviction did not take place until in 1874. Thus the cause of action did not in fact, accrue until long, and more than two years, after the death of the ancestor and the granting of letters of administration and the settlement of his estate. The cause of action here is not, a demand which could have been exhibited to the court, proved, or allowed against the estate of Dugger any time within two-years after the granting of administration on his estate, it not accruing until afterwards. We are of the'opinion the limitation of the statute does not apply to the case.”
In other States where statutes exist barring claims against the estates of deceased persons unless presented within a certain time, it has been held that such statutes do not control demands which may accrue after the period of limitation has-expired. Neil v. Cunningham, 2 Porter, (Ala.) 171; Jones v. Lightfoot, 10 Ala. 26; Burton v. Lockerts, 9 Ark. 416; Miller v. Woodward, 8 Mo. 176.
The section" of the statute relied upon can not be regarded-otherwise than as a statute of limitations. Such statutes operate upon the remedy, and it would be a strange doctrine to hold that the remedy was gone before a right of action had arisen. A cause of action must have an existence before it can be barred. Here the defendant in error had an inchoate-right, but that right never ripened into a subsisting cause of action until long after the Statute of Limitations had run against claims existing at the time of the assignment and at the time of the publication of the notice.
Stone v. Clarke’s Admrs. 40 Ill. 412, has been cited as holding a contrary view. What was said in that case, however, was, in effect, overruled in the later case of Dugger v. Oglesby, supra, and the later case must control.
In re Holt, 45 Iowa, 30, McKinley v. Morse, 67 id. 119, Lumber Co. v. Meyer, 74 id. 403, and Loomis v. Griffin, 78 id. 482, have also been cited as authority sustaining the position of plaintiffs in error. These cases all hold, under a statute of Iowa a creditor is bound to file his claim with the assigneewithin three months next after the first publication of notice of the assignment, but in all the cases the debts sought to be presented after the expiration of the time provided by the statute were due and subsisting debts at the time the notice was published, and hence they are distinguishable from the case under consideration.
As to the second point relied upon but little need be said, Eyhiner & Co. took the property under a writ of replevin. They kept the action pending in court several years, and then-dismissed their action, and a writ of retorno habendo was awarded by the judgment of the court. By the judgment of the court the taking and detention of the property was wrongful, and we are aware of no principle under which a wrongful taker of property can shield himself from liability on the-ground that after the wrongful taking the property has been-destroyed by accident. In Suydam v. Jenkins, 3 Sandf. 644, in discussing this question, it is said: “We have seen the defendant in trover or trespass is in all cases responsible for the value of the property when taken or converted, and certainly it has never been supposed that he can- discharge himself from this responsibility, in whole or in part, by showing that the property has been destroyed or injured by inevitable .accident after he had obtained possession. A plaintiff who, without right or title, has seized the property of another by writ of replevin, is as much a wrongdoer as a defendant in trover. No reason can be given why his liability should be less extensive; and, in fact, where the replevin suit is terminated, although he can not be treated as a trespasser, he may be sued in trover, at the election of the defendant!” (See, also, Carroll v. Early, 4 Bibb, 270; Welch v. Stiles, 47 Iowa, 167; Scott v. Hughes, 9 B. Mon. 104; Yates v. Fassett, 5 Denio, 21.) In Scott v. Hughes, supra, it is said: “We are unable to perceive any good reason why a party, who, of his own mere will, avails himself of the authority of law to seize and detain the property of another, should not be held to the same responsibility as a bailee who comes rightfully into possession, but wrongfully detains.”
Plaintiffs in error have cited Babo v. Patton, 6 Heisk. 172, and Mosby v. Baker, 2 Sneed, 367, (decisions of the Supreme -Court of Tennessee,) which seem to hold a contrary doctrine. But these cases are opposed to the current of authority in the •different States, and we are not inclined to follow the rule there •established. Byhiner & Co. took and detained the property without a valid claim, and in doing so they acted at their peril, and the destruction of the property by fire while in the possession of Ellison & Son, to whom it was leased by Byhiner .& Co., does not release them from the liability they assumed to return the property or respond in damages for a failure to do so.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.