This was a feigned issue to determine the right to a fund in court. The general contractors for a school building made a subcontract with plaintiff for part of the work, and gave him an order on the school board which the board accepted. Subsequently the general contractors went into bankruptcy and their trustee demanded the money for plaintiff’s work on the ground that the order was an illegal preference. The board paid the amount into court. The questions of consideration and of a new contract by the board, ultra vires, argued by appellant are not in the case. The board by payment into court declined to raise them and the appellant is not in position to do so. And the evidence as to litigation against the school board was irrelevant for the same reason. At the trial, therefore, there was nothing in issue but the alleged illegal preference. That depended on whether the contractors were insolvent when they gave the order, and whether plaintiff knew it at that time. The jury found these facts in plaintiff’s favor.

Judgment affirmed.