on petition for rehearing.
This petition seems to be prompted by a feeling that the opinion filed “ reflects unwarrantably upon the appellant.”
Then it is said that “ the contention of the appellant now is, and his position when making the affidavit, was, that the mere certificate was of purely nominal value.”
If the certificate had not been taken on the writ, the appellant might have proceeded in trover, or being taken, if the replevin suit had been prosecuted unsuccessfully, and the certificate not returned, the appellee might have maintained trover. Sec. 18, Ch. 119, Replevin; Bruner v. Dyball, 42 Ill. 34.
In either of such events the measure of damages would have been the value of the stock represented by the certificate. Olds v. Chicago Open Board of Trade,. 33 Ill. App. 445.
In contemplation of law, that is the value of the certificate as against a wrongdoer. The replevin suit was upon the assumption that the appellee was a wrongdoer, and the action of trover for non-return would have been on the assumption that the appellant, was a wrongdoer. So in either case the subject-matter of controversy was, in contemplation of law, worth the value of the stock represented by it, and the justice had no jurisdiction. How, that for a debtor to take from, the possession of his creditor, collateral, pledged for the debt by legal process sued out from a court having no jurisdiction, upon an affidavit to be justified only by a casuistry that would whittle away the value of notes of solvent banks, is a proceeding commending itself to a court of equity, can hardly be contended.
The appellant now, in the petition, for the first time attacks the bond filed when the injunction was issued. That attack is too late. West Chicago Park Commissioners v. Kincade, 64 Ill. App. 113.
There is little resemblance between this case and Mexican Asphalt Co. v. Mexican Asphalt Paving Co., 61 Ill. App. 354.
The injunction there was to prevent the execution of legal process sued out by an adversary having no relations with the complainant, and to prevent the removal of the asphalt from the State. The process issued from a court having jurisdiction, and the plaintiff in it was not, therefore, to be restrained in the exercise of his legal right; and as he had never had possession of the asphalt, that part of the injunction which prohibited it from taking the asphalt out of the State had no foundation; the whole injunction was wrong. It is not the want of jurisdiction of the justice which gives the appellee here a standing in equity, but a misuse of means to get possession of the certificate; and the fact that such misuse was under color of legal proceedings, is no palliation and does not shut the door of equity.
The petition for a rehearing is denied.