delivered the opinion of the Court.
On the 1st of, April, 1896, a man by the name of Conroy Gorman and two others robbed an express car near Lebanon, Mo., and, after blowing open an iron safe, took from the possession of the agent of Wells, Fargo & Company $800. He came to Litchfield, Ill., a few days afterward, and while the city marshal of that place was attempting to arrest him for some minor offense he dropped $693 of the money, which he had in a tobacco pouch, by the side of a rail fence. There it was found by a boy two days afterward and was taken by the boy’s father to the First National Bank of Litchfield, where it was left as a special deposit. Notice of the finding of the money was published at once in a Litchfield paper. On the 11th of April Gorman made an affidavit claiming- to be the owner of the money and delivered to George L. Zink and David B. Kinder, his attorneys, an order on the bank to deliver it to Zink and Kinder, to whom he had made an assignment of the money for legal services to be performed. On a presentation of the affidavit and order the bank delivered the pouch and money to Zink, who placed them in his private lock box in the bank.
The agents of Wells, Fargo & Company, after becoming satisfied that the money was part of that taken by the robbers, and that Gorman was one of them, made demand on Zink for the money, and on his refusal to deliver it, sued out a writ of replevin. On the 21st of April, when the sheriff was about to break open the private box of Zink, Zink unlocked it, showed that the money was not there, and stated that he had taken it out some three days before. The writ was returned to the next term of court, showing service on the defendants, but a failure to get the money. The declaration was in replevin, with a count in trover, and the First National Bank was included as a defendant. After dismissing as to the bank, the plaintiff obtained leave of the court to change the form of action from replevin to assumpsit and filed a declaration in assumpsit. To that declaration the defendants filed the general issue and a special plea, setting up that as the plaintiff had proceeded first in replevin it could not change its form of -action and proceed in assumpsit. To the special plea a demurrer was sustained and the cause was tried by the court without a jury upon the issue raised by the plea of non-assumpsit. The court rendered judgment in favor of the plaintiff for $693.
To the contention of the appellants that the Circuit Court erred in allowing the amendment changing the form of action, and in sustaining the demurrer to defendant’s special plea, it is sufficient to say that ample authority to allow such amendment is given by the statute. (Sec. 1, Chap. 7 (Amendments and Jeofails) and Sec. 23, Chap. 110 (Practice), Rev. Stat.) There is no more reason in denying a party, who has sued in replevin and been unable to find the property, the right to change his action to assumpsit than there is in refusing to allow him to change from assumpsit to debt or from assumpsit to case.
At the ¡November term, 1896, appellants moved to suppress the deposition of Conroy Gorman, taken in St. Louis before Harry L. Christie, a commissioner appointed for that purpose. The motion was supported by the affidavit of one of appellants, showing that at the time of the taking of the deposition they were denied a private interview with Gorman, and that after the examination of the witness had closed and counsel for appellee had held a whispered conversation with the witness and then re-examined him they were denied the right to cross-examine. The witness was at the time a prisoner in the St. Louis jail. He was being held by the authorities of Missouri to answer to the charge of train robbery, and a private interview with him was denied appellants by the guard having him in charge unless it could be had at the jail. The proofs show that at the conclusion of the examination in chief appellants declined to cross-examine, that counsel for appellee did hold a whispered conversation with the witness afterward and then re-examined him, and that when appellants asked leave to cross-examine it was denied to them. We can not, of course, sanction that action of the commissioner. Neither did the Circuit Court. He did not suppress the deposition, however, but ordered a new commission to issue so that appellants could have an opportunity to cross-examine Gorman. We think such action rested within the sound discretion of the court. By it appellants were given full opportunity to exercise the right which had been denied them by the commissioner at St. Louis. Having failed to avail themselves of that opportunity there was no just ground for objecting to the deposition on the trial.
The facts in this case show a clear right in appellee to recover. Appellants can not be regarded in the light of innocent holders of the money. Before the money was removed from the bank they were notified that it was the property of appellee, and had been stolen from it by Gorman, the party through whom they now claim title. They had paid nothing for it and at that time .had performed no service for Gorman that would entitle them to any part of it. A thief can not by written order assign stolen money in consideration of services to be performed in the future and thereby give to the assignee a title that will prevail over that of the true owner. That he can is the head and front of appellant’s contention in this case.
Embodied in various propositions of law submitted to the court, and refused, was the idea that where a party who has been deprived of his property by theft waives the tort and sues in assumpsit he so far confirms the wrong-doer’s acts that he can not deny that he came rightfully into possession of the property. In other words, although Gorman stole the money and appellee could have maintained replevin or trover to recover it, yet having elected to sue in assumpsit, at the instant of exercising such election it ratified the act of taking and acknowledged that the theft was lawful.
Without going into a detailed discussion of the propositions of law which were refused by the court we will say that the court could not have done otherwise than refuse them if he entertained the view that assumpsit may be maintained to recover the value of money that has been stolen. It is a well recognized doctrine in this State that assumpsit will lie for money had and received wherever one has obtained the money of another which it is inequitable or unjust for him to retain. The latest expression of our Supreme Court upon this line is as follows:
“ An action for money had and received will lie whenever one person has received money which in justice belongs to another, and which in justice and right should be returned. The scope of the action has been enlarged until it embraces a great variety of cases, the usual test being, does the money in justice belong to the plaintiff, and has the defendant received the money and should he in justice and right return it to the plaintiff 1 ” Wilson v. Turner, 164 Ill. 398.
We see no reason for reversing the judgment. Judgment affirmed.