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EEPOETS
OF
CASES AT LAW AND IK CHANCERY
ARGUED AND DETERMINED IN THE
SUPREME COURT OF ILLINOIS.
NORMAN L. FREEMAN,
REPORTER.
YOLUME 94.
i
Containing the remaining Cases submitted at the September Term,
1879, the Cases submitted at the January Term. 1880,
the Cases submitted at the March Term, 1880,
and a portion of the cases submitted
at the Mat Term, 1880.
PRINTED FOR THE REPORTER.
SPRINGFIELD:
1880.
Entered according to Act of Congress, in the year 1880, by
NORMAN L. FREEMAN,
In the office of the Librarian of Congress at Washington.
JNO. C. HUGHES,
Stereotypes.,
Spi'ingfield, Illinois.
JUSTICES OF THE SUPREME COURT
DURING THE TIME OF THESE REPORTS.
PINKNEY H. WALKER, Chief Justice
T. LYLE DICKEY,
JOHN M. SCOTT, *
BENJAMIN R. SHELDON,
ALFRED M. CRAIG,
JOHN SCHOLFIELD,
JOHN H. MULKEY,
Justices.
ATTORNEY GENERAL,
JAMES K. EDSALL.
REPORTER,
NORMAN L. FREEMAN.
CLERK IN THE SOUTHERN GRAND DIVISION,
J. O. CHANCE, Mt. Yernon.
CLERK IN THE CENTRAL GRAND DIVISION,
ETHAN A. SNIYELY, Springfield.
CLERK IN THE NORTHERN GRAND DIVISION,
E. F. DUTTON, Ottawa.
JUDGES OF THE APPELLATE COURTS
DURING THE TIME OF THESE REPORTS *
For the First District — Chicago :
joseph m. bailey,
william k. McAllister,
isaac g. wilson.
For the Second District — Ottawa:
NATHANIEL J. PILLSBURY,
GEORGE W. PLEASANTS,
LYMAN LACEY.
For the Third District — Springfield :
OLIVER L. DAVIS,
CHAUNCEY L. HIGBEE,
DAVID McCULLOCH.
For the Fourth District — Mt. Vernon
DAVID J. BAKER,
GEORGE W. WALL,
THOMAS S. CASEY.
*In cases of appeals from or writs of error to any of the Appellate Courts'
which may be reported in this volume, where the names of the judges of those
courts are not given in the report, it will be understood the judges constitu-
ting the court in the particular District named, were as above stated.
RULE OF PRACTICE IN THE SUPREME COURT.
v
Adopted at Ottawa, September 21, 1880.
REHEARING — DOCKETING — TIME OF FILING BRIEFS, ETC.
Rule 59. When, in any case, a rehearing is granted, it
shall be placed for hearing at the foot of the docket.
The petition for rehearing shall stand as the printed argu-
ment, on the hearing, of the party in whose favor it is granted.
The opposite party shall, in all such cases, have ten days
from the time of granting the rehearing to reply to the peti-
tion, and the petitioner shall have five days to file his closing
argument, which shall end the argument of the case, and it
shall then stand for final decision.
Where an oral argument is allowed, if the party against
whom the rehearing is granted wishes to avail himself of the
permission to argue orally, his reply brief must be filed on
or before the calling of the cause.
Oral argument on both sides, when allowed, shall close the
arguments in the case.
TABLE OF CASES
REPORTED IN THIS VOLUME.
A PAGE.
Andrews v. Campbell 577
B
Bank of Commerce of St. Louis
ads. Union National Bank of
Chicago 271
Beaver v. Slanker, Admr 175
Bell ads. Driggers 223
etal. v. The People, etc.... 230
Belleville Savings Bank ads.
Welsch 191
Bennett et al. v. The People 581
Berry ads. Kingery 515
Beveridge et al. ads. Curyea 424
Binkert v. Jansen etal 283
Bloomimgton, City of, The People
ex rel. ads. White 604
Borden et al. ads. Village of Hyde
Park 26
Bradbury ads. DeWitt 446
Bray ton ads. The People ex rel 341
Brittenham ads. Smith 624
Brown et al. v. Riggin et al 560
Buchanan ads. Low, use, etc 76
Buckley ads. Enos et al 458
Busse et al. ads. Gage 590
C PAGE.
Campbell ads. Andrews 577
Cassady v. Trustees of Schools... 589
Chamberlain ads. Garrick et al... 588
Cheney ads. Worcester National
Bank 430
Chicago and Alton Railroad Co.
ads. Holmes , 439
Chicago and Alton Railroad Co.
v. Pennell 448
Chicago, Burlington and Quincy
R. R. Co. ads. City of Quincy... 537
Cobb ads. Illinois and St. Louis
Railroad and Coal Co 55
Cox etal. ads. Kirkland 400
Craig et al. v. Smith 469
Crawford ads. Schroder 357
et al. ads. Richeson et al... 165
Cullom, Governor v. Dolloff et al. 330
Cummings, Kenney & Co. v.
Mugge 186
Curyea v. Beveridge etal 424
B
Defries ads. Eagle Packet Co 598
Dennison, Receiver, etc. ads.
Smith et al. Admrs 582
DeWitt v. Bradbury 446
Dolloff et al. ads. Cullom, Governor. 330
VIII
TABLE OF CASES REPORTED.
PAGE.
Driggers v. Bell 223
Dunne v. The People 120
E
Eagle Packet Co. v. Defries 598
East St. Louis, City of, ads. Martel. 67
Eisenmeyer ads. Slate 96
Emory v. Keighan et al 543
English v. The People 580
Enos et al. v. Buckley 458
F
Fairfield et al. v. The People
ex rel 244
Fanning et al. v. Russell et al 386
Fisher v. Milmine et al 328
Forbes et al. v. Snyder, Admx 374
Gage v. Busse et al 590
Gahl ads. Preston et al 586
Garrick et al. v. Chamberlain 588
Germania Fire Ins. Co. v. McKee. 494
Goodhue v. The People 37
Goodwin, Collector, etc. ads. Illi-
nois Central Railroad Co 262
Goucher v. Patterson 525
Grand Tower Mining, Manufac.
and Trans. Co. v. Hall... 152
Greenwood ads. Hickox 266
H
Hall ads. Grand Tower Mining,
Manufac. and Trans. Co 152
Hardin v. Osborne 571
Hatch v. Jacobson, Receiver, etc.. 584
Hauser ads. Mester 433
Hayward v. Merrill 349
Healy et al. ads. Joliet and Chi-
cago Railroad Co. et al 416
Hewitt v. Board of Education of
Normal School District 528
Hickox v. Greenwood..... 266
PAGE.
Holland et al. v. Swain 154
Holmes v. Chicago & Alton Rail-
road Co 439
Hovey et ux. ads. Trustees of
Schools 394
Hyde Park, Village of, v. Borden
et al 26
I
Illinois Central Railroad Co. v.
County of Union 70
Illinois Central Railroad Co. v.
Goodwin, Collector, etc 262
Illinois Central Railroad Co. ads.
Phelps 548
Illinois and St. Louis Railroad
and Coal Co. v. Cobb 55
Indianapolis and St. Louis Rail-
road Co. ads. McCollom et al.... 534
Ingraham v. The People 428
Irvin v. New Orleans, St. Louis
and Chicago Railroad Co 105
J
Jacobson, Receiver, etc. ads. Hatch 584
Jansen et al, ads. Binkert 283
Jarrett ads. Ruff et al 475
Jarvis et al. v. Riggin 164
Jefferson County ads. Perry
County 214
Jess ads. Wilms 464
Jessop et al. ads. Murfitt et al 158
Johnson v. The People 505
Joliet and Chicago Railroad Co.
et al. v. Healy et al 416
K
Kirkland v. Cox et al 400
Kirchner, The People ex rel. v.
Loomis 587
Kern ads. Noyes et al 521
Keighan et al. ads. Emoi-y 543
Kingery v. Berry , 515
TABLE OF CASES REPORTED.
IX
li PAGE.
Lamkin et al. v. The People 501
Linegar v. Rittenhouse 208
Loomis ads. The People ezrel 587
Low, use, etc. v. Buchanan 76
M
Malin & Co. ads. Walker et ux 596
Mapes et al. v. Scott et al 379
Martel v. City of East St. Louis.. 67
Mathis et al. v. Stufflebeam 481
McCollom et al. v. Indianapolis
and St. Louis Railroad Co 534
McConnell v. McConuell 295
McCrea, The People ex rel. ads.
Fairfield et al :. 244
Mclrvin ads. Taylor 488
McKee ads. Germania Fire Ins.
Co 494
Meacham v. Steele et al 593
Merrill ads. Hayward 349
Mester v. Hauser 433
Milmine et al. ads. Fisher 328
Mt. Vernon, Town of, v. Patton... 65
Mueller v. Rebhan 142
Mugge ads. Cummings, Kenney
& Co 186
Murfitt et al. v. Jessop et al 158
N
New Orleans, St. Louis and Chi-
cago Railroad Co. ads. Irvin... 105
Normal School District, Board of
Education of, ads. Hewitt 528
Noyes et al. v. Kern 521
O
Ohio and Mississippi Railway
Company ads. Wiggins Ferry
Company 83
Orrell v. The People 456
Osborne ads. Hardin 571
Osterhage ads. Stumpf. 115
P PAGE.
Patterson ads. Goucher • 525
Pattomatfc. Town of Mt. Vernon.. 65
Penn Township ads. Wragg et al.. • 11
Pennell ads. Chicago and Alton
Railroad Co 448
People, etc. ads. Bell et al 230
ads. Bennett et al 581
ezrel. v. Brayton 341 .
ads. Dunne 120
ads. English 580
ex rel. ads. Fairfield et al.. 244
ads. Goodhue 37
ads. Ingraham 428
ads. Johnson %05
ads. Lamkin et al 501
ex rel. v. Loomis 587
ads. Orrell 456
v. Smith 226
. ex rel. ads. White 604
ads. Wilson... 299
ads. Wilson et al 426
Perry County v. Jefferson County. 214
Phelps v. Illinois Central Rail-
road Co 548
Preston et al. v. Gahl 586
Q
Quincy, City of, v. Chicago, Bur-
lington and Quincy R. R. Co... 537
R
Rebhan ads. Mueller 142
Reece et al. v. Smith 362
Richeson et al. v. Crawford et al... 165
Riggin ads. Jarvis et al 164
et al. ads. Brown et al 560
Rittenhouse ads. Linegar 208
Ruff et al. v. Jarrett 475
Russell et al. ads. Fanning et al... 386
S
Schack, The People ex rel. v.
B ray t on 341
Schroder v. Crawford 357
TABLE OF CASES REPORTED.
PAGE.
Scott et al. ads. Mapes et al 379
Slanker, Admr. ads. Beaver 175
Slate v. Eisenmeyer 96
Smith et al. Admrs. v. Dennison,
Receiver, etc 582
v. Brittenham 624
ads. Craig et al 469
■ ads. Reece et al..... 362
ads. The People 226
Snyder, Admx. ads. Forbes et al... 374
Springfield, City of. ads. Walker. 364
Steele et al. ads. Meacham 593
Stufflebeam ads Mathis et al 481
Stumpf v. Osterhage 115
Swain ads. Holland et al 154
T
Taylor v. Mclrvin 488
Trustees of Schools ads. Cassady. 589
v. Hovey et ux 394
U PAGE.
Union County ads. Illinois Cent.
Railroad Co 70
Union National Bank of Chicago
v. Bank of Commerce of St.
Louis 271
W
Walkers City of Springfield 364
et uz.v. Malin & Co 596
Welsch v. Belleville Savings
Bank 191
White v. The People ex rel 604
Wiggins Ferry Co. v. Ohio and
Mississippi Railway Co 83
Wilms v. Jess 464
Wilson v. The People 299
et al. v. The People 426
Worcester National Bank v.
Cheney 430
Wragg et al. v. Penn Township... 11
CASES
SUPREME COURT OF ILLINOIS,
NORTHERN GRAND DIVISION.
SEPTEMBER TERM, 1879.
Samuel Wragg et aL
v.
Penn Township.
1. Statute — repeal by implication. The repeal of statutes by implication
is not favored by the courts, and unless the two statutes can not be reconciled
they must be allowed to stand.
2. Same — as to penalty for obstructing highway — whether repealed. Section
68 of chapter 121, Revised Statutes of 1874, entitled "Roads," and which
provides for a penalty for obstructing a road, etc., in favor of the town
in which the offence is committed, is not repealed by section 221 of the Criminal
Code, subsequently enacted, which provides a different punishment for the same
offence by indictment, and a party obstructing a public highway may be pun-
ished under both statutes.
3. Criminal law — double punishment for same act. While a man may not
be put in jeopardy twice for the same offence, yet when his act constitutes
two separate offences, one against the laws of the United States, and the other
against the laws of the State, or against the State law and also against an
ordinance of a city or town, he may be tried, convicted and punished under
both laws, and the legislature may make the same act, as, the obstruction of a
highway, punishable as an offence against the town in which the act is com-
mitted, and also as an offence against the public generally, by indictment for
12 Wragg et al. v. Penn Township. [Sept. T.
Brief for the Appellants.
a nuisance, and the accused will not be in jeopardy twice for the same
offence, but only once for each offence.
4. Highway — evidence of dedication. In order to constitute a dedication of
land for a public highway, it is not essential that the intention be evidenced
by words, either written or spoken. If the acts of the party indicate an
intention to dedicate the land to the public use, it is sufficient, and if the
dedication is accepted by the public, as by use and travel, it is complete. It
is true the acts may be explained by an agreement or other circumstances
rebutting the intent to dedicate, but if the acts are unexplained they will
prove a dedication.
5. Same — vacated if not ope?ied in five years. Unless a public highway is
opened for its entire length within five years from the date of its establish-
ment, it is vacated by operation of the statute, and where there is evidence
tending to show that a part of a highway laid out had not been opened within
five years, in a suit for obstructing the same the defendant has a right to
have the jury instructed that unless they believe from the evidence the entire
road was opened within five years after its establishment it was vacated.
6. Same — obstructing highway — effect thereof— and right of removal. Where
a highway after its establishment has once been opened for travel, no subse-
quent obstruction can be considered in determining whether the entire road
has been opened within the five years, and such obstruction can be removed,
without notice, by the officer or any person whose travel is interrupted by it.
Appeal from the Circuit Court of Henry county ; the
Hon. J. W. Cochran, Judge, presiding.
Mr. J. E. Bush, Mr. John E. Decker, and Mr. C. C.
Wilson, for the appellants, insisted that section 58 of chapter
121, Rev. Stat. 1874, was repealed by section 221 of the Crim-
inal Code, passed subsequently, each section making the same
act an offence, providing different modes of prosecution and
affixing a different punishment.
If two statutes are clearly repugnant to each other the one
last enacted operates as a repeal of the other. Illinois and
Michigan Canal v. City of Chicago, 14 111. 334.
A statute may be repealed without an express clause for
that purpose; and where two statutes are repugnant to each
other in their provisions, the latest expression of the will of
the legislature must prevail. Mullin v. The People, 31 111. 444.
Again, it is a well known rule of construction that when
1879.] Wragg et al. v. Penn Township. 13
Brief for the Appellee.
1 £
our statute changes or imposes a new penalty, it repeals the
prior statute on the same subject. Dingman v. The People,
51 111, 278.
Statute penalties are in the nature of punishments, whether
enforced by civil or criminal proceedings. Bowers v. Green,
1 Scam. 42.
Where a public highway is laid out it must be opened for
public travel its entire length within five years from the date
of the order laying out the same, or it is vacated by operation
of law. Green et al. v. Green, 34 111. 320; Kev. Stat 1874,
p. 932.
Mr. Miles A. Fuller, for the appellee :
Repeals by implication are never favored, and only take
place where the two acts are so repugnant that both can not
exist together, and when a reasonable construction can be
given by which both acts may stand, that construction will be
adopted. City of Chicago v. Quimby, 38 111. 274; Humes v.
Gossett, 43 id. 297; The People v. Barr, 44 id. 198; Perteet v.
The People, 65 id. 230 ; Harding v. PocJcford, Pock Island
and St. Louis Railroad Co. 65 id. 90; Pawson v. Bawson, 52
id. 62.
There is no repugnancy between the two acts. In the first
case the legislature, in providing for the location and main-
tenance of highways and bridges, provides a civil remedy in
favor of the town against obstructing or continuing an ob-
struction upon a highway. In the next they are legislating
upon crimes, an entirely different subject, and provide that
obstructing a highway may be punished criminally by indict-
ment for a public nuisance. It is only, cumulative — not re-
pugnant.
While it is true that no man can be punished or put in
jeopardy twice for the same offence, yet it is equally true that
a single act may and often does constitute more than one
offence, for which the party may be tried and convicted upon
separate indictments or complaints. Freeland v. The People,
14 Wkagg et al. v. Penn Township. [Sept. T.
Opinion of the Court.
16 111. 380; Sevirin v. The People, 37 id. 415; Gardner v.
The People, 20 id. 430.
A temporary deviation from the line of a road to avoid an
obstruction (as the pond in this case) will not change the road
itself, even where the right to a highway is claimed by pre-
scription. Gentleman v. Soule, 32 111. 271.
An obstruction, such as a gate or bars, may be permitted
to remain across a road without vacating it, if no one is hin-
dered passing through. Wiley v. Town of Brimfield, 59 111. 356.
Mr. Justice Dickey delivered the opinion of the Court :
This action was originally brought before a justice of the
peace, by the Town of Penn, in Stark county, against Samuel
Wragg and Edwin Holmes, to recover a penalty for the
obstruction of a public highway, and was taken by appeal to
the circuit court of that county.
! Judgment was rendered by the court against the defendants,
to reverse which an appeal was taken to this court.
The penalty is sought to be recovered under section 58,
chapter 121, Revised Statutes of 1874, which is as follows:
" If any person shall injure or obstruct a public road by
felling a tree or trees in, upon or across the same, or by
placing or leaving any other obstruction thereon, or by en-
croaching upon the same with any fence, or by plowing or
digging any ditch or other opening thereon, or by turning a
current of water so as to saturate or wash the same, or shall
leave the cuttings of any hedge thereon for more than five
days, shall forfeit for every such offence a sum not less than
$3 nor more than $10; and in case of placing any obstruc-
tion on the highway, an additional sum of not exceeding
$3 per day for every day he shall suffer such obstruction to
remain after he has been ordered to remove the same by any
of the commissioners of highways, complaint to be made by
any person feeling himself aggrieved : Provided, this section
shall not apply to any person who shall lawfully fell any tree
for use and will immediately remove the same out of the road,
1879.] Wragg et al. v. Penn Township. 15
Opinion of the Court;
nor to any person through whose land a public road may pass
who shall desire to drain his land and shall give due notice to
the commissioners of such intention : And, provided further,
that any commissioners or overseers of highways, after having
given reasonable notice (to the owners) of the obstruction, or
person so obstructing or plowing or digging ditches upon
such road, may remove any such fence or other obstruction,
fill up any such ditch or excavation, and recover the neces-
sary cost of such removal from such owner or other person
obstructing such road aforesaid, to be collected by said com-
missioners before any justice of the peace having jurisdiction,"
Section 60 of the same chapter provides that the suit shall
be in the name of the town in which the offence is committed,
and section 61 of the same chapter provides that all fines
recovered shall be paid to the commissioners of highways of
the town, to be expended upon the roads and bridges in the
town.
It appears from the record that the road or public highway
in question was established by the commissioners of highways
of the town of Penn on June 4th, 1866; that the road as thus
established covered certain parts of the lands of each of the
appellants; that near the land of the appellant Wragg a pond
or slough was situated in the road, which was impassable,
except when the pond was frozen in winter or dried up in a
dry season; and that at other times persons going along on
the road were compelled to leave the line of the road and
make a circuit of about twenty rods on the land of another
party in order to get around the pond and back again on the
road.
It further appears that the appellant Holmes, at the time
the road was established, had a fence across the line of the
road at the south line of his land, which was supplied with
bars, through which persons traveling along the road passed.
This fence was not removed immediately after the establish-
ment of the highway, but, according to the testimony of the
majority of the witnesses testifying to that point, was re-
16 Wr agg et al. v. Penn Township. [Sept. T.
Opinion of the Court.
moved before 1869, bat not by the commissioners of highways.
No fence was erected in its place until about the 20th of
September, 1876, when a four-board fence was erected by the
appellants at that point across the entire width of the road,
with the avowed purpose on their part of obstructing the
road and preventing the use thereof.
It further appears, that in 1869 the appellant Wragg built
two fences on his land down to and upon and across the road,
which remained there until May 29, 1871, when they were
removed by the commissioners of highways after having given
him more than sixty days' notice to remove the same.
While these fences were standing travel was impeded but
not wholly prevented on the road, for persons wishing to pass
went around the fences on the land of another party and re-
gained the road beyond. When the fences were removed there
was no obstruction to travel for the entire length of the road
as established by the commissioners of highways, except the
inconvenience of getting around the pond near Wragg's land ;
and the road had been used for travel before his fences were
erected in 1869.
It further appears that the appellants, after the road was
established in 1866, set back their hedges along the road so
as to conform to the line of the road as established.
On October 23, 1876, notices in writing were served on
appellants by the commissioners of highways to remove the ob-
struction which they had erected in the highway at the south
line of Holmes' land, which they refused to do. The evi-
dence shows that the fence is still standing. Summons was
issued on Nov. 3, 1876.
The appellants contend that section 58 of chapter 121,
under which the suit is brought, has been repealed by section
221 of the Criminal Code (chapter 38, Eev. Stat, of 1874),
which was subsequently enacted, and which provides that it is
a public nuisance to obstruct or encroach upon public high-
ways, private ways, streets, alleys, commons, landing places
and ways to burying places. Section 222 of the same chapter
1879.] Wkagg et al. v. Penn Township. 17
"~" ~ ~~ "~ ~~ — ~ ~ "~ """ " ————*— - p
Opinion of the Court.
provides, that " whoever causes, erects or continues any-
such nuisance shall, for the first offence, be fined not exceeding
$100, and for a subsequent offence shall be fined in a like
amount and confined in the county jail not exceeding three
months. Every such nuisance, when a conviction therefor is
had in a court of record, may, by order of the court before
which the conviction is had, be abated by the sheriff or other
proper officer, at the expense of the defendant; and it shall be
no defence to any proceeding under this section that the
nuisance is erected or continued by virtue or permission of
any law of this State."
The act of obstructing a highway is declared by the Crimi-
nal Code to be a nuisance punishable by indictment, and the
same act, under section 58 of chapter 121, is made punishable
by suit in the name of the town to recover a penalty. The
two statutes apply to the same act, and affix different penal-
ties, and provide different modes of procedure for the punish-
ment of their violation.
The appellants contend that inasmuch as the act prohibited
in each statute is the same, the offence is single, and only one
penalty or punishment can be attached to one offence. And
that the act declaring the obstructing of a highway a nuisance
punishable by indictment having been enacted after the one
which made the obstructing of a highway punishable by suit
to recover a penalty, the former law has been repealed by im-
plication as being repugnant to and inconsistent with the last
expression of the law-making power.
Repeals by implication are not favored by the courts, and
unless the two statutes can not be reconciled they must be
allowed to stand.
The question presented for decision is not free from diffi-
culty. The theory of appellants' counsel is, that a criminal
act is necessarily but one offence and may be punished in one
way only, and that the party can not twice be put in jeopardy
for the same act. But this is clearly not the law.
In the case of Fox v. State of Ohio, 5 How. 432, the Supreme
2—94 III.
18 Wragg et al. v. Penn Township. [Sept. T.
Opinion of the Court.
Court of the United States held, that passing a counterfeit
coin which was punishable under Federal law, might also be
punished by the State as a crime; that the same act was an
offense against the Federal government and against the State
government, and that the State law prescribing a punishment
for the crime was not repugnant to the constitution, and that
although the party might be convicted for violating both
statutes, still he would not be twice put in jeopardy for the
same offence.
Mr. Justice McLean, in delivering a dissenting opinion,
used the following language: "Nothing can be more repug-
nant or contradictory than two punishments for the same act.
It would be a mockery of justice and a reproach to civiliza-
tion." But he stood alone in his dissent from the opinion of
the court. The doctrine was afterwards held sound in the case
of Moore v. The People of the State of Illinois, 14 How. 13.
In delivering the opinion in this last mentioned case, Mr.
Justice Grier says: "An offence, in its legal signification,
means the transgression of a law. A man may be compelled
to make reparation in damages to the injured party and be
liable also to punishment for a breach of the peace in conse-
quence of the same act, and may be said, in common parlance,
to be twice punished for the same offence. Every citizen of
the United States is also a citizen of a State or Territory. He
may be said to owe allegiance to two sovereigns, and may be
liable to punishment for an infraction of the laws of both.
That either or both may, if they see fit, punish such an offender
can not be doubted. Yet it can not be truly averred that
the offender has been twice punished for the same offence, but
only that by one act he has committed two offences, for each
of which he is justly punishable. He could not plead the
punishment by one in bar to a conviction by the other." And
this is the settled law as laid down by the Supreme Court of
the United States.
The rule prevails where the act is punished in two or more
ways by the same sovereign. An assault committed in the
1879.] Wragg et at v. Penn Township. 19
, — . — , 0
Opinion of the Court.
presence of a court may be punished in two ways, — first, for
contempt of the court, and again in a criminal prosecution
for the assault.
In Freeland v. The People, 16 111. 383, this court say : " It is
not enough that the act is the same, for by the same act the
party may commit several offences in law. In the same act
of feloneously taking a quantity of goods, the party may, hi
law, be guilty of as many crimes as there are separate owners
of the goods stolen, and may be punished as for so many dis-
tinct larcenies."
In Gardner v. The People, 20 111. 434, this court say: aAn
act may at the same time be an offence against the United
States government and also against a State government. The
same act may also constitute several crimes or misdemeanors,
and the trial and punishment for one will be no bar to a prose-
cution of another growing out of the same act."
The question in this State has frequently arisen in prosecu-
tions under the ordinances of cities and under the general
criminal law of the State, both of which, in some instances,
prohibit and punish the same act. The general law and the
ordinance are, in effect, both acts of the legislature. City
ordinances passed under the delegated power conferred in the
city charter have the force, as to persons bound thereby, of
laws passed by the legislature of the State.
" A city council is a miniature general assembly, and their
authorized ordinances have the force of laws passed by the
legislature of the State." Taylor v. Carondelet, 22 Mo. 105.
The legislative power of cities is but a part of the legislative
power of the State, and whatever law the legislature may
enact through the intervention or agency of a municipal cor-
poration, it can enact by itself without such intervention.
The legislature can not authorize a city to declare an act a
crime which the legislature is prohibited from declaring a
crime. And if the legislature has power to make an act pun-
ishable in one way under the general laws of the State, and
the same act also punishable in a different way under the
20 Wragg et al. v. Penn Township. [Sept. T.
Opinion of the Court.
authorized ordinances of a municipal corporation, the legisla-
ture may, if such is its intent, make the same act punishable
in different ways under general laws of the State.
There does not appear to be any prohibition on the power
of the legislature to declare that the commission of a particular
act shall constitute two or more offences, each of a different
grade of criminality and punishable in a different manner.
The question most frequently raised is, whether the legisla-
ture intended to make an act a double offence, and not as to
the existence of the power.
Cooley on Constitutional Limitations, 199, avers that the
same act may constitute an offence both against the State and
the municipal corporation, and both may punish it without
violation of any constitutional principle. Grant on Corpora-
tions, 82, states that the same rule prevails in England.
Bishop on Statutory Crimes, book 1, chapter 2, section 23,
lays down the rule thus: "If the statute so authorizes, it is
not apparent why a city corporation may not impose a special
penalty for an act done against it, while the State imposes
also a penalty for the same act done against the State."
The decisions on this subject by the courts of the several
States are apparently in hopeless conflict with each other.
Dillon on Municipal Corporations, section 301, says: "Hence
the same act comes to be forbidden by general statute and by
the ordinance of a municipal corporation, each providing a
separate and different punishment. * * * But can the
same act be twice punished, — once under the ordinance and
once under the statute? The cases on this subject can not be
reconciled. Some hold that the same act may be a double
offence, one against the State and one against the corporation.
Others regard the same act as constituting a single offence,
and hold that it can be punished but once, and may be thus
punished by whichever party first acquires jurisdiction."
In Georgia and Louisiana it is held that a municipal cor-
poration has no power to enact an ordinance touching an
1879.] Wkagg et al. v. Penn Township. 21
Opinion of the Court.
offence punishable under the general law of the State. 21
Georgia, 80.
In 3 Kansas, 141, Rice v. The State, the court say: "It
is not necessary in this case to decide whether both the State
and the city can punish for the same act; but we have no
doubt that the one which shall first obtain jurisdiction t>f the.
person of the accused may punish to the extent of its power/7
In Missouri the rule is clearly announced that the same act
can be punished but once, and that a conviction under a city
ordinance may be pleaded in bar to an indictment under the
State law. The State v. Cowan, 29 Mo. 330.
In Alabama the rule is the other way, and it is held that
the same act may be punished under a city ordinance, and at
the same time under the general law. 14 Ala. 400.
In Indiana the rule used to be the same as it is now in
Missouri, but in Ambrose v. The State, 6 Ind. 351, it was mod-
ified, and the court there held that a single act might consti-
tute two offences, one against the State and one against the
municipal government. And in Waldo v. Wallace, 12 Ind.
582, it was held "that each might punish in its own mode by
its own officers the same act as an offence against each."
In Illinois this court, in the case of Bennett v. The People,
30 111. 389, held that the legislature might grant to a muni-
cipal corporation the exclusive authority of regulating the
sale of liquor within its limits, and that where such munici-
pality had exercised such authority by passing restraining and
regulating ordinances, a person could not be convicted under
an indictment for violating the State law on that subject, but
was amenable only to the ordinances.
The case of Gardner v. The People, 20 111. 430, was an
indictment under the State law, for selling liquor without a
license, and it was argued that because the legislature had
conferred upon the city of Monmouth power to license, regu-
late and prohibit the sale of liquors in the city limits, the
State law on that subject was repealed by implication. But
the court held that the power conferred upon the city was not
22 Wragg et al. v. Penn Township. [Sept, T.
Opinion of the Court.
exclusive, and that the legislature did not, by merely giving
the city the right to act, repeal the general law of the State
on the subject; and the court expressly declined to decide
whether the law and the ordinance could both be enforced by
a punishment under each.
In fthe case of Berry v. The People, 36 111. 423, this court
went farther, and held that where the charter of the city of
Belleville conferred authority, but not exclusive authority, on
the city to suppress and restrain gambling, the city ordinance
passed on that subject and the State law were concurrent, and
that a judgment recovered under the ordinance would bar a
recovery by the State for the same cause.
But later, in the case of Fant v. The People, 45 111. 259,
the court recedes from the position assumed in Berry v. The
People, and expressly declines to decide that the jurisdiction
is concurrent, and whether both the ordinance and the State
law can be enforced together: " Even if the jurisdiction
should be held to be concurrent, and that the exercise of the
power by the city was cumulative, the State first acquired
jurisdiction, and there being no pretence that plaintiff in
error had been proceeded against under the city ordinance, it
can therefore be no defence that he had been liable to prose-
cution under the ordinances. Had he been convicted under
the ordinance for this offence, then a very different question
would have been presented. But that question is not now
before us for determination, and we deem it unnecessary to
discuss it."
The court, in that case, left the question in about the atti-
tude in which it was placed by Gardner v. The People, 20 111.
434, and it can not be said that the law is settled by this court,
for the fair construction of the opinion in Fant v. The People
is, that a city ordinance on the same subject as a general law,
both imposing penalties for the same act, neither repeals the
law nor is it repugnant thereto; but that the ordinance and
the law are either separate provisions, (both capable of being
enforced,) or concurrent remedies, (only one of which may be
1879.] Wragg et at v. Penn Township. 23
Opinion of the Court.
enforced,) and the court fails to determine whether they are
separate or concurrent.
We think there is no doubt but that it is within the power
of the legislature to create two or more offences which may
be committed by a single act, each of which is punishable by
itself. A conviction or acquittal in such case under either
statute would be no bar to a conviction under the other, for
the accused would not be twice in jeopardy for one offence,
but only once in jeopardy for each offence.
Assuming the power of the legislature to be as above stated,
in what light do the two sections under consideration stand to
each other? Section 58, chapter 121, Revised Statutes of
1874, was intended to furnish to every town of the State a
remedy for obstructing the highways in the town. It is a
matter of importance to the town to have its highways free
from obstructions, and a damage to it and its inhabitants in
case its highways are obstructed, entailing upon the town
expense and inconvenience. But the town and its inhabitants
are not alone interested in* its highways: the people of the
State are also interested in the highways, although that interest
is not of a directly pecuniary character.
Can it be said that the legislature may not protect the rights
of the public in the highways of the State, by punishing in-
fringements of those rights by individuals, without repealing
the remedy for the injury sustained by the town in which the.
act is committed? The laws, as they stand, give to the town
a right of action to recover by suit a penalty or fine in the
nature of compensation for an obstruction of a highway in
the town, — the pe-nalty, when collected, to be expended upon
the roads and bridges in the town where the offence was
committed; and for an obstruction of a highway an indict-
ment for a nuisance may be had to punish the injury to the
State and the public at large, by fine for the first offence, and
for a subsequent offence by fine and imprisonment. The two
laws are passed, in fact, upon different subjects and distinct
injuries, — one is intended to deal with the consequences of the
24 Wragg et al. v. Penn Township. [Sept. T.
Opinion of the Court.
act upon the town, and the other with the consequences of the
same act upon the State. The injury is double, and the pun-
ishment may be double. There is no repugnance or incon-
sistency between the two provisions, and, in our opinion, both
may stand and be enforced independently and without inter-
ference with each other.
For the reasons above stated, we hold the action was prop-
erly brought under section 58 of chapter 121, Rev. Stat, of
1874, and that the motion to dismiss for want of jurisdiction
was properly denied.
The exceptions to the rulings of the court in giving, refus-
ing and modifying instructions to the jury, are not important
except in two instances, which counsel for appellants lay
especial stress upon, — the fifth instruction given at the request
of the appellee, and the modification of the first instruction
asked by the appellants.
Appellee's fifth instruction is as follows :
"The jury are instructed that highways may be acquired
by dedication. And in this case, if the jury believe, from the
evidence, that after the highway in controversy was located,
defendants set their hedges back, leaving room for the highway,
and removed their fence from said highway and permitted the
public to use the same for a highway, these facts, if proven,
may be considered by the jury in determining whether the
defendants had dedicated this land to the public for a high-
way."
Counsel for appellants claim that there were no facts in
evidence to warrant such instruction, and that in order to
constitute a dedication the evidence must show that the appel-
lants, by some act or word, intended to make the dedication
to the public.
The evidence warrants the instruction, for it shows that
after the highway was established, the appellant Holmes re-
moved his fence from the road and that he and Wragg set
back their hedges to conform to the lines of the road as estab-
1879.] Wkagg et ah v. Penn Township. 25
Opinion of the Court.
lished, and that the road was used by the public as a highway
with the knowledge of the appellants. The appellants, at-
tempting an explanation of these acts on their part, testify
that the hedges were set back in anticipation that a road might
be opened at that place at some time in the future.
In order to constitute a dedication it is not essential that
the intention be evidenced by words either written or spoken.
If the acts of the party indicate an intention to dedicate the
land to the public use, it is sufficient, and if the dedication is
accepted by the public, as by use and travel, it is complete.
It is true such acts may be done without the intention to
dedicate ; and the mere acting so as to lead persons to the sup-
position that the way is dedicated, will not amount to a dedi-
cation if there be any agreement or any other circumstance
which explains the transaction ; but otherwise, if unexplained.
Marcy v. Taylor, 19 111. 636.
The instruction is substantially correct and presented the
law fairly to the jury.
The modification of the first instruction asked by appel-
lants, and to which they excepted, is as follows :
"The jury are instructed, that unless they believe from the
evidence that the road in question was open to the public for
travel the entire length of the same within five years after the
same was laid out and established, then said road is vacated
and is not a public highway and can not be opened by the
officers of said town of Penn after the expiration of said five
years." The court modified the instruction by striking out
the words "the entire length of the same," and gave the
instruction thus modified.
The case of Green et al. v. Green, 34 111. 320, holds, that
unless a public highway is opened for its entire length within
five years from the date of its establishment, it is vacated by
operation of the statute. The evidence, by a preponderance
thereof, seems to show that the road was in fact opened and
traveled for its entire length within five years from the date
of its establishment, June 4, 1866; but there is conflicting
26 Village of Hyde Pakk v. Borden et al. [Sept. T.
Syllabus.
testimony on the point. Part of the evidence tends to show
that at the point of obstruction complained of this road had
never been opened to the public by the commissioners. The
appellants were clearly entitled to have the law correctly given
to the jury in the instructions. The instructions given by
the court nowhere state the rule as laid down in Green et al.
v. Green, supra, and for this reason the modification made by
the court in the appellants' first instruction was error, which
entitles appellants to a new trial.
But the fences which appellant Wragg erected across the
road in 1869, three years after the road was established, are
not to be' regarded in the same light as though they had
existed at the time the road was established by the commis-
sioners of highways. The opening of a highway for travel,
under the statute, is accomplished by removing obstructions
existing at the time the highway is established, and it is not
essential to the opening of a highway that unlawful obstruc-
tions subsequently erected thereon should be removed. Wragg
was not entitled to sixty days' notice to remove the fences built
in 1869. They were subject to removal as an encroachment
on or obstruction of a highway, at any time, by any person
whose travel was interrupted by them. Marcy v. Taylor, 19
111. 635.
The judgment is reversed, and the cause remanded for a
new trial.
Judgment reversed.
The Village of Hyde Park
v.
John Borden et al.
1. Special assessments — sufficiency of ordinance in describing sewer. An
ordinance for the construction of a sewer which names three several curve?
between two given points without giving the radius, as, for instance, after
naming a point saying " thence curve until it intersects with a point" named,
1879.] Village of Hyde Park v. Borden et at 27
Syllabus. *
where the curves are for very short distances and adapted to the purposes of
the sewer, and can be properly located in one way only from the whole ordi-
nance taken together, is not void for uncertainty.
2. Same — ordinance for sewer across private properly. If a sewer is con-'
structed over private property with the knowledge of the owner, under an
ordinance, and he makes no objection thereto and takes no steps to prevent
the same, he will be thereafter estopped from making any claim to compensa-
tion, and the ordinance will not be void because the sewer is over private
ground, and the collection of special assessments for its construction can not
be defeated on this ground.
3. Same — requisites of ordinance in providing for compensation. The statute
does not require that an ordinance for the construction of a sewer by a
municipal corporation shall make any provision for acquh'ing the right
to make the improvement upon the property of others, but it provides
that after the passage of an ordinance for an improvement, the making of
which will require that private property be taken or damaged, then the city
or village shall file a petition for the ascertainment of the compensation to be
paid, if it can not be agreed upon by the parties.
4. Same — may be made before compensation is provided for property to be
taken. A city or village may make special assessments for a public improve-
ment before the compensation to be paid for private property to be taken or
damaged is ascertained
5. Same — may be made before right of way is acquired. The collection of special
assessments for the construction of a sewer can not be resisted on the ground
that at the time of the adoption of the ordinance for the proposed improve-
ment and of the making of the assessments, permission was not obtained to
make the improvement over or through the lands of other corporate bodies,
and permission from such bodies may be obtained afterwards and it will be
good.
6. Street — on vacation land reverts to original owner. Where a public street
or avenue is vacated by competent authority, the land embraced within its
limits will revert to the original owner who dedicated the same.
7. Estoppel — by acquiescence without objection. Where the owner of land
has full knowledge of the location of a street over the same, or of the con-
struction of a sewer through the same by municipal authorities, and inter-
poses no objection to the same, and takes no steps to prevent it, after the con-
struction of the improvement he will be estopped from making any claim for
compensation.
Appeal from the Appellate Court of the First District ;
the Hon. Theodore D. Murphy, presiding Justice, and
Hon. Geo. W. Pleasants and Hon. Joseph M. Bailey,
Justices.
28 Village of Hyde Park v. Borden et al. [Sept. T.
Statement of the case.
This was an application made originally to the county
court of Cook county, for confirmation of a special assessment
made by the village of Hyde Park, for the cost of construct-
ing a brick sewer in Forty-first street, from State street to
Lake Michigan. The portion of the ordinance of the village
of Hyde Park for the construction of said sewer, in dispute
in the case, is as follows :
" Be it ordained by the President and Board of Trustees of
the Village of Hyde Park :
" Section 1. That a brick sewer be constructed from Lake
Michigan to a point seventeen feet east of the center line of
State street, in the village of Hyde Park, the center line of
which shall coincide with the center line of Forty-first street
from said point seventeen feet east of the center line of State
street to a point ten feet west of the center line of the east half
of the north-west quarter of section 3, township 38 north, range
14 east of the third principal meridian; there curve until it
intersects with said center line of the east half of said north-
west quarter section 3, at a point four feet south of the center
line of Forty-first street; thence east and parallel with the
center line of said Forty-first street to a point in the west
line of Grand boulevard ; thence north-easterly until it inter-
sects with the center line of Forty-first street at the east line of
Grand boulevard; thence running along center line of Forty-
first street to a point seven feet east of the center line of
Langley avenue to south, if extended; thence north-easterly
to a point on the west line of Cottage Grove avenue ten feet
north of the center line of Forty-first street; thence north-
easterly to a point on the east line of Cottage Grove avenue,
and ten feet south of the center line of Forty-first street, east
of said Cottage Grove avenue; running thence east and par-
allel to the center line of said Forty-first street to the west
line of the west roadway of Drexel boulevard; thence curve
until it intersects with a point twenty feet south of the south
line of Forty-first street and fifty feet east of the west line of
the west roadwav of said boulevard; thence south-easterly
1879.] Village of Hyde Park v. Borden et aL 29
Brief for the Appellant.
and parallel to said west line of west roadway of Drexel
boulevard to a point thirty feet north of the north line of the
Union Stock Yards railroad right of way ; thence curve
until it intersects with a point seventy feet east of the west
roadway of Drexel boulevard, and nine and one-half feet
north of the north line of the Union Stock Yards railroad
right of way ; running thence east and parallel to the south
line of Cleaverville, being a subdivision of part of the north-
west fractional quarter section 2, township 38 north, range
14 east of the third principal meridian, to a point thirty-five
feet west of the west line of Michigan terrace; thence along
a line at a right angle to the lines of the Illinois Central
railroad right of way to the water's edge of Lake Michigan."
Mr. Henry V. Freeman, for the appellant :
1. There is no such uncertainty in the ordinance in the
use of the word " curve," without defining the nature or
character of the curve, or its radius or location on the ground,
as will operate against its validity. There is no discretion
given in regard to the extent of the work, or the manner of
its execution, so as to bring the case within the ruling in
Foss v. City of Chicago, 56 111. 359. The curve must be
adapted to the purpose prescribed in the ordinance — the pur-
pose of a sewer. Constructed in any other way it would not
meet the requirements of the ordinance. There can be but
one proper way to construct the curve, and evidence was
offered to show that it had been so constructed.
The objection to the ordinance may be considered as properly
classified with that referred to in a late decision of this court:
"The objection the ordinance does not direct how the pipe
shall be laid, whether on top of the earth or under, nor how
deep, is simply hypercritical, and needs no consideration."
The People v. Sherman, 83 111. 167.
An engineer locating the sewer described in the ordinance
would locate this curve in one way, and only one, and have
no difficulty in so doing.
30 Village of Hyde Park v. Borden et at. [Sept.T.
Brief for the Appellant.
2. If a party suffer a street to be opened through his land
without objection, he can not afterwards interpose a claim for
compensation. He should insist upon his claim in due time,
so that the corporation may vacate the ordinance, if it regards
the assessment of damages as unreasonable. Curry v. Mt.
Sterling, 15 111. 320.
Here the owner, Cleaver, suffered the sewer to be built
through his property without taking any steps to prevent it.
He is estopped from making any claims against the construc-
tion of this sewer through Michigan terrace.
It needs no argument more than the mere statement to
maintain that if Cleaver was estopped from making any
defence by his own conduct, no other objector could urge
Cleaver's trouble as his defence.
3. It is no proper objection to the ordinance that it omits
to make provision to ascertain the compensation to be made
for private property which might be taken or damaged in the
construction of the proposed improvement. Nor was it
essential to the validity of the ordinance that, at the time of
its passage, the right should have been acquired to pass over
the lands of third persons. The matter of compensation
could be fixed and the right to use private property acquired,
after the adoption of the ordinance, and without reference to
the prior want of action in that regard.
Mr. Consider H. Willett, also for the appellant :
The ordinance is valid, and the use of the word "curve" does
not make it void. The practical language of ordinary con-
tracts will satisfy the requirements of ordinances. The People
v. Sherman, 83 111. 165; Rickets v. Village of Hyde Park, 85
id. 110.
Cases upon which objectors rely, and which appellants
claim are not obnoxious to the ordinance : Fox v. Chicago,
56 111. 354 ; JenJcs v. City of Chicago, id. 397 ; Lake Shore and
Michigan Southern Railroad Co. v. Chicago, id. 454; Bowenv.
Chicago, 61 id. 268; Workman v. Chicago, id. 463.
1879.] Village of Hyde Park v. Borden et at 31
Opinion of the Court. *
In law no permission was necessary from the Illinois Cen-
tral Railroad Company in order to construct a sewer across
their right of way. Rev. Stat. 1874, page 222.
Mr. L. D. Condee, also for the appellant.
Messrs. Mattocks & Mason, Mr. John P. Wilson, and
Mr. Charles E. Pope, representing different objectors, the
appellees, insisted the ordinance was void by reason of its un-
certainty in the proper location or description of the "curve"
to be made in the construction of the proposed sewer; — and
urged various other grounds of objection to the assessment.
Mr. Justice Sheldon delivered the opinion of the Court :
This is an appeal from a judgment of the Appellate Court
for the First District affirming the decision of the Superior
Court of Cook County, dismissing an application by the vil-
lage of Hyde Park, which had been originally made to the
county court of Cook county, for confirmation of a special
assessment for the cost of constructing a brick sewer in Forty-
first street, in said village, from State street to Lake Michigan.
The ordinance of the village of Hyde Park for the con-
struction of the sewer, adopted Nov. 2, 1876, in its descrip-
tion of the course of the sewer names three several curves
between two given points, without giving the radius of the
curves, — as, for instance, after naming a point the description
says, "thence curve until it intersects with a point," (naming
it,) — such description occurring three times.
The course of the sewer as defined by the ordinance was
through Michigan terrace, forty feet, a former public street
in the subdivision of Cleaverville, in Cook county, made by
Charles Cleaver, who made a plat of the subdivision accord-
ing to the general statute in force on the first day of January,
1852, upon which plat Michigan terrace was shown as a
public street. Michigan terrace had been vacated by a pri-
vate act of the legislature passed Feb. 16, 1865. Private
Laws, 1865, vol. 2, page 659.
32 Village of Hyde Park v. Borden et al. [Sept. T.
Opinion of the Court.
The course of the sewer was also across the right of way
of the Illinois Central Railroad Company, and also across
Drexel and Grand boulevards. Said boulevards are in the
possession of the South Park Commissioners, and are three
hundred feet wide; there being in the center of the boule-
vards North and South streets, being streets of the village of
Hyde Park, which were taken and widened by the South
Park Commissioners under the South Park acts.
A license was oifered in evidence from the Illinois Central
Railroad Company for the construction of the sewer across
its right of way, and also a resolution from the South Park
Commissioners granting permission to construct the sewer
across Drexel and Grand boulevards.
The Appellate Court found :
That the ordinance was void for uncertainty in using the
word "curve" without fixing the radius.
That Michigan terrace had been vacated and was private
property, and that the construction of the sewer through forty
feet of private property rendered the ordinance void.
That the Board of Trustees of Hyde Park had no power to
order the construction of a sewer across the land occupied by
the Illinois Central railroad, and that the license oifered in
evidence from the railroad company did not render the ordi-
nance and the proceedings under it valid.
That the South Park Commission and its territory form
a distinct municipal corporation from Hyde Park, and as the
ordinance directed that the sewer should run through its
property it was void, and that the objection was not cured by
the resolution offered in evidence from the South Park Com-
missioners granting permission.
The exception taken by the objectors to the confirmation of
the assessment because of the use of the word curve without
fixing its radius, is on account of its uncertainty. It is said
that two given points can be connected by an indefinite number
of curves, and hence that there is an indefiniteness as -to the
extent of the work in this particular which, it is claimed, ren-
1879.] Tillage of Hyde Park v. Borden et al. 33
Opinion of the Court.
ders the ordinance void, under the decisions of this court in
Foss v. TJie City of Chicago, 56 111. 354, and other like cases.
Ordinances there, of the common council of Chicago, were held
void because they left it to the discretion of the Board of
Public Works to determine as to the mode, manner and extent
of the improvement to be made, when the law on the subject
of special assessments in the city of Chicago for public im-
provements had placed the responsibility of prescribing what
improvements should be made, and the mode and extent of
them, with the common council. It was said in Jenks v. The
City of Chicago, 56 111. 398, that clothing the board with such
a discretionary power the law did not warrant, and this court
Avould not tolerate, because it opened the door to fraud and
favoritism.
We can not think that such objection fairly lies with suffi-
cient force to the ordinance in question here to affect its
validity. The curves here are only for very short distances.
The whole ordinance must be taken together. The curve
described must be one adapted to the general purpose of such
a sewer, and favorable to the ready passage of the sewer's
contents. Constructed in any other way, it would not meet
the requirements of the ordinance. We have reason to believe
that an engineer, properly locating the sewer described in the
ordinance, would locate the curves in only one way, and that
without difficulty. In The People ex rel. v. Sherman, 83 111.
165, in respect to an ordinance for laying water-pipes, it was
said : "The objection, the ordinance does not direct how the
pipe shall be laid, ' whether on top of the earth, or under,
nor how deep/ is simply hypercritical, and needs no consid-
eration. " And yet there was in that case a degree of uncer-
tainty in the respects named.
Giving the radius of the curve in the present case would
have been proper, and rendered the description more certain.
But we do not view the omission of it, in the connection as
described in the ordinance, as creating enough of indefinite*
ness in respect of the curves to bring the case within the prin-
-94 III.
34 Village of Hyde Park v. Borden et aU [Sept. T.
Opinion of the Court.
ciple of the decisions first above cited, and invalidate the
ordinance.
If Michigan terrace had been vacated, the land within its
limits reverted to Charles Cleaver, the original owner, who
dedicated the street. Gebhart v. Reeves, 75 111. 301. The
sewer had been constructed the greater portion of its extent.
Cleaver had full knowledge of the construction of the sewer
through Michigan terrace, and took no steps to prevent it,
and made no objection thereto, to the authorities of Hyde
Park. In Curry v. Mount Sterling, 15 111. 320, in relation to
a town ordinance for the extension of a street through private
property, it was said: "If he (the owner) claimed damages
because of the extension of the street, it was incumbent on
him to make known his claim. If a party suffers a street to be
opened through his land without objection, he can not after-
wards interpose a claim for compensation. He should insist
upon his claim in due time, so that the corporation may vacate
the ordinance, if it regards the assessment of damages as
unreasonable;" citing Ferns v. Ward, 4 Gilm. 499; County
of Sangamon v. Brown, 13 111. 207. Under these authorities,
Cleaver would be estopped from making any claim for com-
pensation because of the construction of the sewer through
Michigan terrace.
As respects the construction of the sewer across the right of
way of the Illinois Central Railroad Company, it is a provision
of the general statute here applying that "the city council shall
have power, by condemnation or otherwise, to extend any street,
alley or highway over or across, or to construct any sewer
under or through any railroad track, right of way, or land of
any railroad company (within the corporate limits); but where
no compensation is made to such railroad company, the city
shall restore such railroad track, right of way or land to its
former state, or in a sufficient manner not to have impaired
its usefulness." Rev. Stat. 1874, p. 222, eighty-ninth power.
The railroad company, by a formal instrument in writing,
executed under the seal of the company, of the date of March
1879.] Village of Hyde Park v. Borden et at. 35
Opinion of the Court.
3, 1877, granted permission to construct the sewer across the
company's right of way; it suffered and permitted such con-
struction to be made without objection; the superintendent of
the railroad had charge of the construction of the sewer under
the railroad tracks, and the railroad company had been assessed
for the improvement, and had paid the assessment.
As to the construction of the seAver across Drexel and Grand
boulevards of the South Park, permission was granted therefor
by a formal resolution of the Board of South Park Commis-
sioners, or there was the offer in evidence of such a resolu-
tion.
It is objected to these licenses granted by the Illinois Cen-
tral Railroad Company and the Board of South Park Com-
missioners, that they were granted subsequent to the passage
of the present ordinance and the making of .the present assess-
ment,— that the ordinance was void because it required the
sewer to be constructed upon private property, and across
boulevards of the South Park, without making any provision
for acquiring the right to make the improvement upon such
property, — and that the validity of the ordinance and assess-
ment must be determined by the power of the village and the
state of facts existing at the date of the passage of the ordi-
nance, and the making of the assessment.
The statute does not require that the ordinance itself shall,
when providing for an improvement, make any provision for
acquiring the right to make the improvement upon the prop-
erty of others. But it provides that after the passage of an
ordinance for an improvement, the making of which will
require that private property be taken or damaged, then the
city or village shall file a petition praying that the just com-
pensation for such taking or damage shall be ascertained by a
jury. And the Eminent Domain act, which is to be taken in
connection with this statute, provides that such proceedings
for the ascertainment of compensation shall be instituted only
in case the compensation can not be agreed upon by the parties
36 Village of Hyde Park v. Borden et ah [Sept. T.
Opinion of the Court.
interested, or in case the owner of the property is incapable
of consenting.
In the present case the consent of the railroad company and
the South Park commissioners was secured before instituting
any compensation proceedings, and rendering such proceedings
unnecessary.
We do not understand that because private property can not
be taken or damaged for public use without just compensation,
that this compensation must first be ascertained before any
assessment can be made for an improvement which may require
such taking or damaging. This is not an assessment under sec-
tion 53, article 9 of the statute, for the purpose of raising the
amount necessary to pay the compensation or damages which
might be awarded for private property taken or damaged.
But it is an assessment for an improvement for which it was
not certain that compensation would be required for the taking
or damaging of private property, and, as the event shows,
none was required.
The assessment then was for the cost of the improvement
and the special benefit thereof to the property concerned ; there
has been the full enjoyment of the benefit, at least so far as
pertains to the particular objections considered, and we per-
ceive no sufficient reason why the assessment should not be
enforced.
The permission granted for the construction of the sewer
across the parcels of property of the railroad company and
of the South Park we regard as entirely obviating the objections
made on that account ; and this, although the permission was
not obtained until after the passage of the ordinance and the
making of the assessment. That such permission did not go to
the power to pass the ordinance or make the assessment.
Some of the facts which have been stated may only appear
from the offer of evidence to prove them which was rejected.
But we consider that all the evidence offered in the Superior
Court should have been admitted, and have treated the evi-
dence as in and making proof of the facts.
1879.] Goodhue v. The People. 37
Syllabus. >.
The judgment of the Appellate Court will be reversed, and
the cause remanded to that court for further proceedings in
conformity with this opinion.
Judgment reversed.
Charles F. Goodhue
v.
The People of the State of Illinois.
1. Change of venue — jurisdiction in court to which the case is ordered to be
sent. Upon the making of an order changing the venue of a criminal case, the
jurisdiction of the court wherein such order is made ceases, and that of the
court to which the cause is sent attaches, by operation of law, and the juris-
diction of the latter court does not "depend upon the ministerial act of the clerk
of the court awarding the change, and it is not defeated by his neglect to
transmit the original indictment or papers.
2. Same — what court may compel transmission of papers. Where a change
of venue is awarded, if the clerk of the court fails or refuses to transmit the
papers, with an authenticated transcript of the record, the court to which the
venue is changed, and not the court awarding the change, is the forum to which
application must be made to compel a performance of that duty.
3. Same — trial without original papers. While a party indicted for crime,
upon a change of venue has a right to demand that he shall not be put upon
trial until the original indictment is placed on file in the court to which the
venue is changed, yet the failure to transmit the same is but an irregularity,
which he waives by going to trial without objection on that account. The
failure to transmit the original papers is only cause for a postponement of the
trial, but no ground for a dismissal for want of jurisdiction.
4. Criminal law — indictment for embezzlement. An indictment against a
county treasurer for embezzlement, which charges that the defendant, on, etc.,
then and there being county treasurer of said county, duly elected in pursu-
ance of law to said office of public trust in said State, did feloniously and
fraudulently embezzle a large sum of money, to-wit, the sum of $4508.37, then
and there in possession of such officer by virtue of his said office, contrary,
etc., is sufficient even on motion to quash.
5. Same — variance in proof. On an indictment charging the defendant with
the embezzlement of money only, the admission of evidence showing the larceny
or embezzlement of county orders is error.
38 Goodhue v. The People. [Sept. T.
Syllabus.
6. Same — when prosecution may be limited to one offence and compelled to elect.
If two or more offences form part of one transaction, and are such in their
nature that defendant may be guilty of both, the prosecutor will not, as a
general rule, be put to an election, but may proceed under one indictment for
the several offences, though they be felonies. The right of demanding an elec-
tion, and the limitation of the prosecution to one offence, is confined to charges
which are actually distinct from each other and do not form parts of one and
the same transaction.
7. In misdemeanors, within the discretion of the court, the prosecutor may
be required to confine the evidence to one offence; or, when evidence is given
of two or more offences, may be required to elect one charge to be submitted
to the jury; but in cases of felony it is the right of the accused if he demand
it, except where the offences charged are all parts of the same transaction, that
he be not put upon trial at the same time for more than one offence.
8. On the trial of an indictment of a county treasurer for the embezzlement
of money in his hands as an officer, proof was given tending to charge the de-
fendant as to at least three different transactions occurring at different times.
On the close of the evidence for the people, the defendant moved the court to
put the prosecution to their election as to which act of embezzlement they
would claim a conviction, and further moved the court to limit the prosecution
to some one act of embezzlement; which the court refused to do: Held, that
the court erred in overruling such motions.
9. Same — of an intent to do a thing not alleged. Where an indictment charges
that an officer did actually embezzle, but does not charge that he took or
secreted with intent to embezzle, which is made a distinct offence, it is error
to instruct the jury to convict, if it be sufficiently shown that the accused did
certain fraudulent acts with intent to embezzle.
10. Same — as to furnishing list of jurors. Where it is made to appear that a
defendant has been put to disadvantage from a failure to deliver to him in due
time a correct list of the jurors composing the panel, as by statute required, or
to give him a fair opportunity to prepare for trial, his conviction ought to be
set aside; but a new trial should not be granted for every little inaccuracy
that may occur in this regard, which works no injury to the accused.
11. Evidence in criminal cases. On the trial of a county treasurer for em-
bezzlement, the recitals of misconduct on the part of the accused, in connection
with the order of removal of the accused from office and the appointment of
his successor, contained in the record of the proceedings of the county board,
ought not to be given to the jury. Such recitals prove nothing.
12. On such trial the tax warrant for the collection of taxes is not proper
evidence for the purpose of showing the amount of taxes to be charged against
him, and is calculated to mislead the jury.
1879.] , Goodhue v. The People. 39
Statement of the case.
Writ of Error to the Circuit Court of Winnebago county j
the Hon. John V. Eustace, Judge, presiding.
This was an indictment against Charles F. Goodhue, for.
the crime of embezzlement, found under section 80 of the
Criminal Code, which is as follows : " If any State, county,
township, city, town, village, or other officer elected or ap-
pointed under the constitution or laws of this State, or any
clerk, agent, servant or employee of any such officer, embezzles
or fraudulently converts to his own use, or fraudulently takes
or secretes with intent so to do, any money, bonds, mortgages,
coupons, bank bills, notes, warrants, orders, funds or securities,
books of record or of accounts, or other property belonging
to or in the possession of the State, or such county, township,
city, town or village, or in possession of such officer by virtue
of his office, he shall be imprisoned in the penitentiary not
less than one nor more than fifteen years." Rev. Stat. 1874,
363.
The following is the substance of the charging part of the
several counts :
1. That Charles F. Goodhue, late of the county of Stephen-
son, on the 16th day of October, in the year of our Lord one
thousand eight hundred and seventy-eight, in said county of
Stephenson, in the State of Illinois aforesaid, then and there
being county treasurer of said county of Stephenson, duly
elected in pursuance of the laws of said State of Illinois to
said office of public trust in said State, did feloniously and
fraudulently embezzle a large sum of money, to-wit, the sum
of $4508.37, then and there in possession of such officer by
virtue of his said office, contrary, etc.
2. That the said Charles F. Goodhue, late of the county
of Stephenson, aforesaid, on the said 16th day of October, in
the year of our Lord one thousand eight hundred and seventy-
eight, in the county of Stephenson and State of Illinois, afore-
said, then and there being county treasurer of said county of
Stephenson, duly elected in pursuance of the laws of said State
40 Goodhue v. The People. [Sept. T.
Statement of the
of Illinois to said office of public trust in said State, did feloni-
ously and fraudulently embezzle a large sum of money, to-wit,
the sum of $4508.37, of the value of $4508.37, then and there
in the possession of such officer, him, the said Charles F.
Goodhue, by virtue of his said, the said Charles F. Goodhue's
office, contrary, etc.
3. That the said Charles F. Goodhue was duly elected to
the office of county treasurer of the said Stephenson county in
November, in the year of our Lord one thousand eight hun-
dred and seventy-seven, for the term of two years, com-
mencing on the first Monday in December, in the year of our
Lord one thousand eight hundred and seventy-seven. That
the said Charles F. Goodhue afterwards, to- wit, on the said first
Monday in December, in the year of our Lord one thousand
eight hundred and seventy-seven, the same being the third
day of December, in the year of our Lord one thousand eight
hundred and seventy-seven, duly qualified and entered upon the
discharge of the duties of his said office as county treasurer of
said Stephenson county, and continued to hold and occupy said
office, and discharge the duties thereof, from the said third day
of December, in the year of our Lord one thousand eight hun-
dred and seventy-seven, until the 16th day of October, in the
year of our Lord one thousand eight hundred and seventy-
eight, when he was removed from said office by the board of
supervisors of said Stephenson county, the said board then
and there having lawful power so to do, and said Charles F.
Goodhue, as such officer as aforesaid, was then and there suc-
ceeded in said office by one William W. Hutchinson, who
was then and there duly appointed and qualified to fill the
vacancy thereof. That while said Charles F. Goodhue was
acting as the county treasurer of said Stephenson county, as
aforesaid, he, the said Charles F. Goodhue, then and there
received, collected and took into his possession as such officer,
by virtue of his said office, a large sum of money, to-wit,
the sum of $41,199.35, of the value of $41,199.35, and that
the said Charles F. Goodhue, of the moneys by him so col-
1879.] Goodhue v. The People. 41
Brief for Plaintiff in Error.
lected by virtue of his said office, then and there in his
possession as such officer, did, at the county of Stephenson
aforesaid, on the said 16th day of October, in the year of our
Lord one thousand eight hundred and seventy-eight, feloni-
ously and fraudulently embezzle the sum of $4508.37, con-
trary, etc.
The defendant moved to quash the indictment, on the fol-
lowing grounds: Irregularity in forming grand jury; vague-
ness of the indictment; that the several counts purport to be
for the same offence; that the several counts plead the evi-
dence; that the several counts charge no offence; — which mo-
tion the court overruled.
Mr. J. A. Crain, and Mr. E. B. Sumner, for the plaintiff
in error :
1. The indictment is insufficient. The averment that the
defendant did embezzle, is the averment of a legal conclusion.
As is stated in Kibs v. The People, 81 111. 600, the indict-
ment must set out the acts of embezzlement. Embezzlement
may be consummated by a variety of acts. The pleader is
not allowed to give construction to acts, or aver a conclusion,
but must set out the acts themselves, so that the court can
judicially see that those acts constitute a crime. Arch. C. P. P.
p. 85, Waterman's ed., note 1 ; Hale P. C. vol. 2, pp. 183, 184 ;
Hawkins P. C. p. 310, § 37; Archibald P. P. p. 86, note 1.
" The indictment must contain a complete description of
such facts and circumstances as will constitute a crime. " The
indictment should have averred some manner of the embezzle-
ment, as, that he converted the money to his own use. "Did
embezzle," is like the averment, " did unlawfully resist,"
which, in Lamberton v. The People, 11 Ohio, 282, was held to
be the averment of a legal conclusion, and not of an act; or,
like the averment "did attempt to maim," which was held to
be a statement of a legal conclusion, because maiming could
be effected by a variety of acts, and this general averment did
not name any one act. Corn. v. Clark, 6 Grattan, 675.
42 Goodhue v. The People. [Sept. T.
Brief for Plaintiff in Error.
Section 82, Rev. Stat. 1874, p. 360, does not help the pleader
in this case, for, while that section does provide that where
the property of "any person, bank, incorporated company or
co-partnership " shall have been embezzled, it shall be suffi-
cient to allege generally " an embezzlement," — it is only in
such case where the property is laid in some one of these
specified owners, if properly even then, that the conclusion
of law can be substituted for the acts themselves.
2. The indictment does not name any person as the party
injured, or state that the property embezzled belonged to any
one.
"The prosecutor or party injured, or any other person
named in the indictment, if known, must be described with
certainty ; if an individual, he must be described by his
christian or surname ; if a corporation, by their name of in-
corporation." Pomeroy's Archibald, 245.
"The object of setting out the name of the party injured is
to identify the particular fact or transaction on which the in-
dictment has been founded, so that the accused may have the
benefic on acquittal or conviction, if accused a second time."
Pomeroy's Archibald, 245, note 2; ibid. 250, note 1; Willis
v. The People, 1 Scam. 399 ; State v. Irwin, 5 Blackf. 343.
Section 74, Rev. Stat. 1874, p. 360, provides that any per-
son may be guilty of embezzlement and larceny if he shall
fraudulently appropriate any "property delivered to him." An
indictment would not be good averring this fact and no more ;
it should aver that such property delivered to him belonged
to some | erson, and that there was, in reference to it, "some
person injured.
In an indictment for embezzlement, " unless the pleader is
relieved from this exactness by a special statute, the goods
and ownership must be set out with the same completeness as
in larceny." 2 Wharton on Crim. Law, (7th ed.) § 1941.
See, also, Thompson v. The People, 24 111. 60, as to an in-
dictment under the statute in respect to obtaining goods, etc.,
under false pretences.
1879.] Goodhue v. The People. 43
Brief for Plaintiff in Ei-ror.
3. The property alleged to have been embezzled is not
sufficiently described.
Section 82, Rev. Stat. 1874, p. 360, provides that property
embezzled need not be particularly described, provided it be
the property of " any person, bank, incorporated company or
co-partnership." Now, in this indictment the property em-
bezzled is not averred as belonging to any such person, bank,
corporation or co-partnership; therefore, as the property em-
bezzled is not embraced in this section by the terms of the
averment, it must be described as required in an indictment
for embezzlement without such a section. This principle is
expressly decided in Com. v. Wyman, 8 Mete. 254.
4. As to the evidence: In one of the counts of the in-
dictment there is an averment that the defendant was county
treasurer, and embezzled funds, and, besides, the unnecessary
averment that he was removed from his office by the board of
supervisors because he was found to be a defaulter. This was
purely surplusage. No averment upon that subject was neces-
sary. The offence was complete without it. There are two
ways in which defendant might take advantage of this: first,
by moving, before trial, to strike it out, and second, by object-
ing to evidence to sustain it.
Defendant did object, but, notwithstanding, the prosecution
was permitted to introduce the records of the board of super-
visors, not under oath, and res inter alias acta, which, in sub-
stance, declared the defendant guilty. This testimony under
no circumstances could have been lawful testimony, and under
such circumstances it is the duty of the court to grant a new
trial. Corbley v. Wilson, 71 111. 211; WhitaJcer v. WJieeler,
44 id. 441; Marshall v. Adams, 11 id. 41; Louisville and
Nashville Railroad Co. v. Burns, 13 Bush (Ky.) 479.
Properly speaking, says Waterman in his New Trials, p.
613, the reception of illegal evidence should vitiate the ver-
dict without inquiry as to its probable effect in any given case;
its inevitable tendency is to mislead, and the extent of the
mischief it may have done can not always be calculated or
44 Goodhue v. The People. [Sept. T.
Brief for Plaintiff in Error.
guessed at. * * * When illegal testimony is such as to
be in gross violation of well settled principles, which govern
proof, clearly giving the party who offered it an unlawful
advantage, its admission has been held per se a ground for a
new trial, whether the jury were directed to disregard it or
not. Wicks v. Lowerre, 8 Barb. 53.5.
5. The prosecution should have been put to their election
as to which count of the indictment they would claim convic-
tion upon.
The several counts of the indictment purported to be for
one and the same transaction, to-wit: embezzling $4508.37,
in defendant's possession as county treasurer. Nothing on its
face apprised defendant that he was to be tried for distinct
felonies.
In Warnock v. State, 7 Cold. 508, where distinct offences
were sought to be proved, and evidence offered of the same
without objection, and the court refused to put the prosecution
to its election, the Supreme Court reversed the judgment for
that reason. 1 Wharton on Crim. Law (7 ed.) 423.
If it be not proper to include separate and distinct felonies
in different counts of the same indictment, certainly when the
several counts of an indictment purport to be for the same
offence, to permit the prosecution, under such indictment, to
give proof of, and insist on a conviction for several and dis-
tinct offences, violates the very principle laid down by this
court. Lyons v. People, 68 111. 275.
6. The Winnebago circuit court did not have jurisdiction.
The certificate of the clerk of Stephenson county is wholly
insufficient, and no better than none. It not only does not
certify what was contained in the record during the pendency
of proceedings in Stephenson county, but it fails to identify
the indictment or transcript of record, or any of the other
papers, as the originals, or as those sent to Winnebago county.
It is no better than no certificate; yet it imports verity, and
the court can not make another certificate for the clerk.
The section of the statute which provides that objection to
1879.] Goodhue v. The People. 45
Brief for Defendant in Error.
proceedings in obtaining changes of venue, or the right of
the court to which the change is made to try the case and pro-
nounce judgment, shall be considered as waived after trial and
verdict, has no application.
Mr. James S. Cochran, State's Attorney, for the People:
1. At common law, an indictment for embezzlement was
required to set out each specific act of embezzlement, and the
same rule applies under our statute which makes embezzle-
ment larceny. Kibs v. People, 81 111. 600. But the statute
under which this indictment was drawn does not declare that
the person guilty of embezzlement shall be deemed guilty of
a larceny.
2. Every indictment shall be deemed sufficiently technical
and correct which states the offence in the language of the
statute, or so plainly that the nature of the offence may be
easily understood by the jury. Rev. Stat. 1874, p. 408, sec.
408; Canady v. People, 17 111. 158; Morton v. People, 47 id.
468; Mapes v. People, 69 id. 523; McCutcheon v. People, id.
601; People v. McKinney, 10 Mich. 54.
3. It is also objected that the indictment does not state the
name of any party injured or to whom the money belonged.
The statute makes it criminal for any officer to embezzle
money " in the possession of such officer by virtue of his office."
See State v. Mason, 62 Maine, 106; State v. Orwlg, 24 Iowa,
102; Brown v. State, 18 Ohio St. 506; People v. McKinney,
10 Mich. 54; State v. Smith, 13 Kan. 274.
4. If copies, and not originals, are sent on change of
venue, objection must be made at the earliest period, or the
irregularity will be waived. Holliday v. People, 4 Gilm. Ill ;
Granger v. Warrington, 3 id. 299; McK^inney v. People, 2
id. 556.
All objections to the jurisdiction arising from a defective
certificate of the proceedings are waived by going to trial
without objection. Hitt v. Allen, 13 111. 592 ; Flagg v. Rob-
erts, 67 id. 485 ; McBain v. Enlos, 13 id. 79 ; Perteet v. People,
46 Goodhue v. The People. [Sept. T.
Opinion of the Court.
70 id. 172; Gardner v. People, 3 Scam. 87; Loper v. State, 3
How. (Miss.) 429.
5. As to the right of the defendant to compel the prose-
cution to elect as to what charge it would urge for a convic-
tion, counsel cited 1 Whart. Crim. Law, sec. 423; People v.
MoKinney, 10 Mich. 95 ; Leonard et al. v. People, 81 111. 308;
People v. Davis, 56 N. Y. 100; George v. State, 39 Miss. 590;
Gravattv. State, 25 Ohio St. 162; Bish. Crim. Proced. 425,
454 and 459.
Mr. Justice Dickey delivered the opinion of the Court :
This is an indictment against plaintiff in error, under sec-
tion 80 of the Criminal Code, found by a grand jury of the
county of Stephenson at the December term, 1878. The
indictment consists of three counts, in each of which plaintiff
in error was charged with the embezzlement of $4508.37,
of money in his possession by virtue of his office as county
treasurer.
The circuit court of Stephenson county overruled a motion
to quash this indictment, and, a plea of not guilty being inter-
posed, the venue was changed to the county of Winnebago by
order of the court, on the application of the accused.
A transcript of the record of the proceeding in the circuit
court of Stephenson county, embracing a copy of the indict-
ment, was transmitted by the clerk of that court to the clerk
of the circuit court of Winnebago county, and duly filed in
his office on the 2d day of January, 1879. This transcript
was authenticated by the certificate of the clerk of the cir-
cuit court of Stephenson county, under the seal of that court,
as "a true, perfect and complete copy of the record in a
certain cause lately pending in the circuit court of the county
of Stephenson, wherein the People is plaintiff and Charles
F. Goodhue is defendant."
At the January term of the circuit court of Winnebago
county a trial was had, resulting in a verdict of guilty, fixing
the term of imprisonment in the penitentiary at four years;
1879.] Goodhue v. The People. 47
Opinion of the Court.
_
and in a further finding of the jury (as the verdict reads)
"from the evidence in our hands," that defendant embezzled
the sum of $3812.
Motions for new trial and in arrest were made and over-
ruled, and sentence and judgment were entered upon the ver-
dict.
It is insisted by plaintiff in error that the circuit court of
Winnebago county did not acquire and did not have juris-
diction to try this case, because the original indictment was
not before that court, as required by law.
We can not sustain this position. On the making of the
order changing the venue by the circuit court of the county
of Stephenson the jurisdiction of that court ceased, and that
of the circuit court of Winnebago attached, by operation of
law. Had the clerk of the court in Stephenson county refused
to transmit the papers with an authenticated transcript of the
record, the circuit court of the county of Winnebago, and not
that of Stephenson county, would have been the forum to
which application could be mad<e to compel the performance
of that duty. The jurisdiction of the court in the county of
Winnebago in no sense or degree depended upon the ministe-
rial act of the clerk of the circuit court of Stephenson county.
The failure of that clerk to transmit the original papers form-
ing part of the record in the case was a grave irregularity.
The accused had a right to demand that he should not be put
upon trial until such original papers were placed on file in
the circuit court of Winnebago. It is, however, such an
irregularity as may be waived by the accused. In this case
it was waived. The accused, when put upon trial, did not
object on that ground to going on with the trial. It is true
he objected to going to trial upon the ground of the absence
of a witness, but did not call the attention of the court to the
absence of the original indictment. Had he so done it would
have shown good ground for postponing the trial, but not
ground for dismissing the cause for want of jurisdiction. Not
having presented that ground upon his application for a con-
48 Goodhue v. The People. [Sept. T.
Opinion of the Court.
tinuance, he could not, after trial, be heard to complain of the
irregularity.
It is objected that the indictment, on its face, is bad. A
majority of the court are of opinion that the indictment is
sufficient.
In the course of the trial evidence was produced tending to
prove that certain county orders were ordered to be issued,
and that the county clerk, having prepared and signed the
orders (which were prepared on blanks for that purpose, con-
tained in a book), left the book containing the orders, so
signed by the clerk, in the treasurer's office, for the purpose
of having the treasurer countersign the orders; and that plain-
tiff in error, having countersigned these orders as treasurer,
cut a part of them out of the book, amounting to some $2200,
and took them to a bank and sold them for about that amount
of money, and failed to charge himself with that amount in
his official accounts, but fraudulently converted the same to
his own use.
This evidence was admitted by the court against the objec-
tion of the accused, and after all the evidence on that subject
was given a motion was made to exclude the same as inadmis-
sible under this indictment, and this motion was denied.
This, we hold, was error. The indictment charged the embez-
zlement of money, and did not charge the embezzlement of
county orders. If this disposition of the county orders was
made criminally, it constituted either the larceny or the em-
bezzlement of county orders, and not of money. The county
treasurer as such had no authority to sell these orders for the
county and receive the proceeds as the money of the county.
The issuing and sale of county orders is, neither of them, em-
braced among the official duties of the county treasurer, nor is
there any proof whatever tending to show that the county
board made him in any way the agent of the county to issue
or sell these orders for the county. The order of the county
board authorized the county clerk to issue them, and the law
required the orders to be countersigned by the treasurer.
1879.] Goodhue v. The People. 49
Opinion of the Court. ^
It is plain that if crime was committed by the accused in
this transaction in relation to what are called the "jail orders,"
as presented by the proofs, it was not the embezzlement of
the proceeds of the orders, but the embezzlement or larceny
of the orders themselves. If a man steal a horse and sell
him to a stranger, he may be convicted of stealing the horse,
but not of stealing the money received as the price of the
stolen horse.
These county orders were in the lawful possession of the
county clerk, although placed for the purpose of being coun-
tersigned in the room where the county treasurer kept his
office. They were in process of preparation for issue, but
seem never to have been issued by the clerk.
Upon the proofs, this transaction did not fall within the
description in the indictment. The evidence relating thereto
ought to have been excluded from the jury, — and the 16th
instruction on that subject ought not to have been given.
In the course of the trial evidence was given tending to
charge the plaintiff as to at least three different transactions,
each of which the court charged the jury was, if established,
a complete crime, for which they must convict. One related
to the withholding some $540.31 from the city treasurer of
the city of Freeport, and occurred in the month of July,
1878. Another transaction had relation to a false receipt given
in the month of May, 1878, to one Potter, saying defendant
had paid him $383 for printing, when in fact but $283 was
paid, and to the entry of credit on the collector's books of a
credit for the former amount. And another transaction re-
lated to the improper conversion or use of certain county
orders, called jail orders, which is said to have occurred in
the month of September, 1878.
By one instruction (the 9th) the jury were told that they
must convict defendant if he held in his hands, as such county
treasurer and by virtue of his office, the sum of $7017.14 be-
longing to the city of Freeport, and while he so held such
fund the treasurer of that city, as such, demanded of defend-
4—94 III.
50 Goodhue v. The People. [Sept. T.
Opinion of the Court.
ant, as such county treasurer, all of the money in his hands
belonging to said city; and that defendant then and there
fraudulently told such city treasurer that $6476.83 was all of
such moneys, when in fact there was the further sum of
$540.31 in the hands of defendant belonging to such city ;
and defendant then and there fraudulently withheld from said
city treasurer the latter sum, with intent to defraud the said
city of that sum, and if defendant fraudulently converted
the same to his own use "then the jury shall find defendant
guilty," etc.
By another instruction (the 8th) the jury are directed to
convict the defendant if, while the county owed to one Potter
only the sum of $283 for printing a delinquent list, defend-
ant, as county treasurer, paid that sum and no more to Potter
for such service, and then and there fraudulently obtained
from Potter a receipt for the sum of $383, being $100 more
than the actual amount paid to Potter; and if defendant
then and there knowingly, falsely and fraudulently gave
himself credit on that account on his books as county col-
lector with the sum of $383, with intent fraudulently to
convert to his own use the $100, which was the excess of the
receipt and of the credit upon the books over and above the
amount actually paid to Potter.
By another instruction (the 16th) the jury were directed to
find the defendant guilty if certain jail orders, numbered
208, 209, 210, 211 and 212, were issued by the county, and, in
pursuance of some arrangement between the officers of the
county and a certain bank, certain money, the avails of such
orders, came into defendant's hands as county treasurer, and
if defendant fraudulently failed to charge himself therewith
on the treasurer's books, and embezzled the same or any part
thereof.
The transactions to which these instructions respectively
relate are distinct and separate in so far as the proofs tend to
show.
After the evidence was closed the accused, by his counsel,
1879.] Goodhue v. The People. 51
Opinion of the Court. „
applied to the court to put the prosecution to their election as
to which act of embezzlement they would claim a conviction,
and moved the court to limit the prosecution to some one act
of embezzlement. This the court refused to do, but gave the
several instructions mentioned supra.
If two or more offences form part of one transaction, and
are such in nature that a defendant may be guilty of both,
the prosecution will not as a general rule be put to an elec-
tion, but may proceed under one indictment for the several
offences, though they be felonies. The right of demand-
ing an election and the limitation of the prosecution to one
offence, is confined to charges which are actually distinct from
each other and do not form parts of one and the same trans-
action. In misdemeanors the prosecution may, in the discre-
tion of the court trying the case, be required to confine the
evidence to one offence, or where evidence is given of two or
more offences, may be required to elect one charge to be sub-
mitted to the jury, but in cases of felony it is the right of the
accused, if he demand it, that he be not put upon trial at the
same time for more than one offence, except in cases»where the
several offences are respectively parts of the same transaction.
1 Wharton Crim. Law, § 423; 1 Bishop Crim. Pr. 459. This
doctrine is recognized by this court in Lyons v. The People,
68 111. 275, and is believed to accord with the practice in this
State from its earliest days. It was therefore error, in this
case, to refuse the application of the accused for the benefit of
this rule.
Again, the statute in question defines two offences, — one, the
actual embezzlement of public funds, and the other, the tak-
ing or secreting of public moneys with intention to embezzle.
The indictment charges that the accused did actually embez-
zle, and does not charge that he took or secreted with intent to
embezzle. In several of the instructions given by the court this
distinction is not observed, and the jury were directed to con-
vict if it be shown sufficiently that the accused did certain
fraudulent acts with intent to embezzle. This is error.
52 Goodhue v. The People. [Sept. T.
Opinion of the Court.
We think, also, that the recitals of misconduct on the part
of the accused contained in the record of the proceedings of
the county board, in connection with the removal of the ac-
cused from office and the appointment of his successor, ought
not to have been given to the jury, — certainly not without
definite caution to the jury that they must not be taken as
proof in the slightest degree of the truth of the recitals. It
is said, for the prosecution, these recitals were necessary to
show the validity of the order of removal. We do not think
so. The statute gives the power of removal on the happening
of certain contingencies. The statute does not require such
contingencies to be stated in the record of the proceedings.
Such recitals of the record are not proof that the contin-
gencies occurred. Nor do we perceive, from the statement of
the evidence in the abstract, that any material lawful purpose
could be subserved by proof of his removal from office and
the appointment of his successor. It is shown that his suc-
cessor sent the accused a letter demanding that he turn over
all the moneys, property, books, etc., belonging to the office
of countyttreasurer, but our attention has not been directed
to any proof as to whether the accused did or did not com-
ply with this request, and without this proof the fact that he
had a successor is of no significance.
Again, the tax warrant for the collection of taxes was put
in evidence, as it would appear, by way of showing the state
of accounts of the treasurer, and in the account presented by
the prosecution, the amount of taxes to be collected, as men-
tioned in the collector's warrant is presented as an item with
which the accused should be debited, and this, as it is said, for
the purpose of showing the amount of money which actually
came to his hands. The tax warrant was not competent proof
for that purpose. Such proof, if competent in this case, would
charge the accused with embezzlement of every amount of tax
which he, from his own fault, failed to collect. In determin-
ing the amount which a county collector shall be called
upon to account for in his settlements with the State, county
1879.] Goodhue v. The People. 53
Opinion of the Court.
and other authorities, this item is a proper debit to head the
account, for, if the collector has, from his own fault, failed to
collect any given amount in that warrant, he must account
for the same in such settlement. Not so in a trial for embezzle-
ment of money actually received and appropriated to his own
use. The introduction of this tax list was calculated to mislead
rather than enlighten the jury on the issue. An officer may
be a very gross defaulter and yet not an embezzler or a thief.
In fact, an honest man is liable to become a defaulter from his
negligence or from his incompetency. These matters must
not be confounded with crime.
Complaint is made that the list of jurors furnished to the
accused was not correct. The list furnished contained thirty
names instead of twenty-four. Six of the men whose names
were so given were of the jurors drawn for the term, but some
of them had not been served -and others had been excused ;
none of them were at that time on the panel of jurors, and
as to one man who was of the panel as composed when the
trial began, his name was A. F. Nichols, but he was summoned
by the sheriff by the name of Burt Nicholds, and on the list
furnished the accused he was put down as "Burt Nicholds."
The utmost care should be taken to give to every defendant
in criminal cases every reasonable opportunity to prepare for
trial, and among other things to notify them in due time as
to what men constitute the panel out of which the jurors for
his trial are to be called, and where it is made to appear to the
court that a defendant has been put to a disadvantage from a
failure in this regard, his conviction ought to be set aside.
It is not, however, every little inaccuracy which may occur
in this regard for which a trial should be set aside. In this
case it seems plain that the accused suffered no injury from
the irregularity. He could readily see that the list contained
thirty names, and might have called the attention of the court
to that fact and had the list corrected.
54 Goodhue v. The People.
Opinion of the Court.
For the errors indicated the conviction and judgment must
be set aside, and the cause remanded to the circuit court of
Winnebago county for a new trial.
Judgment reversed.
Scott J. : I do not concur in this opinion except so far as
it holds the indictment is sufficient.
CASES
IN THE
SUPREME COURT OF ILLINOIS.
SOUTHERN GRAND DIVISION.
NOVEMBER TERM, 1879.
The Illinois and St. Louis Railroad and Coal Co.
Francis H. Cobb.
1. Trespass — of the plaintiff's possession. If a party in possession of real
estate is wrongfully ousted by another, the latter can not by such wrongful
act acquire a possession which it will be a trespass in the former to disturb,
provided the re-entry of the person so wrongfully ousted involves no breach
of the peace.
2. If a defendant acquires possession of land only by wrongfully ousting
the plaintiff, his possession is not lawful, but is unlawful, and the plaintiff
may regain possession in a peaceable manner, and if again dispossessed by
the defendant, he may maintain trespass for the injury.
3. Same — possession sufficient against a wrongdoer. A person in the peace-
able possession suing for a trespass to the freehold can never be put upon
proof of his title in order to recover against a wrongdoer having no title.
4. When a person in the peaceable possession of land is ousted by a mere
wrongdoer without the authority or command of the real owner, the party in
possession not being a tenant, he may recover the full damages done, not only
to his possession, but to the land itself, the same as if he were the real owner.
The trespasser in such case can not be allowed to show title in another, and
thereby mitigate the damages so as to prevent a recovery for all damages
56 III. & St. L. R. K. & Coal Co. v. Cobb. [Nov.T.
Opinion of the Court.
beyond the actual injury to the possession. The rule it seems is different
when the plaintiff is a mere tenant.
5. There is a broad distinction between a case where a mere trespasser
commits the wrong to the possession of another without title, and where it is
done by the owner of the title, or by one authorized by him to commit the
trespass. In the last case the person in possession can only recover the dam-
age he has sustained to his possessory right.
6. Former recovery — when a bar to another. A recovery in trespass by a
person in the peaceable possession of land, who is not the owner and is not a
tenant of the owner, for dispossessing him and injuring the land, is a bar to
any subsequent suit by the real owner for the injury to the soil.
7. Practice in Supreme Court — passing on facts. Where the Appellate
Court sustains the verdict of a jury as to the damages found on the trial of
an action for trespass to land, they depending on controverted facts, the judg-
ment of the Appellate Court as to the right to the damages recovered is final,
and this court can not examine the evidence as to the damages.
Appeal from the Appellate Court of the Fourth District ;
the Hon. Tazewell B. Tanner, presiding justice, and the
Hon. James C. Allen and Hon. David J. Baker, justices.
Messrs. G. & G. A. K corner, for the appellant.
Mr. Charles W. Thomas, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court :
On the first question discussed we have adopted the lan-
guage of the opinion filed before the petition for a rehearing
was presented.
This appeal brings before us for review the record of a judg-
ment of the Appellate Court of the Fourth District. The
case was before us at a former term and is reported in volume
82 III. 183, where the facts of the case are stated. On the
last trial in the circuit court appellee recovered $4379. On
an appeal to the Appellate Court that judgment was affirmed,
and the case is again brought to this court, and we are now
to inquire simply as to the rulings on the law in the last
named court, the questions of controverted fact being set-
1879.] III. & St. L. E. R. & Coal Co. v. Cobb. 57
Opinion of the Court.
tied by its decision. (See Laws of 1877, p. 153, sec. 89.)
From the finding of the jury and the affirmance of that find-
ing by the judgment of the Appellate Court, we must assume
that appellee was in the peaceable possession of the property
in controversy and that his possession was violently invaded
by appellant without lawful right; that appellee regained pos-
session of the property in controversy, and his possession was
again violently invaded by an entry by appellant without
lawful right, because there is evidence tending to prove these
facts, which the Appellate Court must have found was not
outweighed or overborne by the opposing evidence, to have
come to the conclusion it reached in affirming the judgment.
The first error of law in the ruling of the court, insisted
upon, arises from the refusal of the circuit court to give this
instruction: "The law is, that if plaintiff was in possession
when he brought his first action, in which he recovered dam-
ages, and was wrongfully ousted by defendant, yet he must
be in actual possession before he can bring another suit; and
if he was not in actual possession at the time the suits in this
case were brought, the jury must find for defendant; or, if
he were in actual possession, which he had gained for himself,
trespassing on the lawful and peaceable possession of defend-
ant, or by fraud, the jury must find for defendant."
When this case was here before, it was said, in discussing
this doctrine, and in allusion to Reeder v. Purdy, 41 111. 279,
and Comstoch v. Henneberry, 6Q 111. 212, " The fair inference
from both of these cases is, that the rules laid down there are
not to apply to a peaceable re-entry by a party who has been
put out by lawless force. To hold that a party who has by
lawless force driven a weaker party from a peaceable possession,
has thereby acquired a possession so sacred that the expelled
party may not, if he can do so without a breach of the peace,
re-enter, for the mere purpose of complying with a mere
technical rule of law which prevents him from bringing an
action of trespass until he has re-entered, would be carrying
the rule to a length never contemplated, and wholly unwar-
58 III. & St. L. E. E. & Coal Co. v. Cobb. [Nov.T.
Opinion of the Court.
ranted by any provision of law, whether statutory or common
law."
If, as this instruction assumes, the plaintiff was in possession
and was wrongfully ousted by defendant, the latter could not by
that wrongful act acquire a possession which it would be a
trespass in plaintiff to disturb, provided his entry involved
no breach of the peace. The lawful possession of the de-
fendant, on the hypothesis assumed by the instruction, is an
impossibility. If the defendant acquired possession only by
wrongfully ousting the plaintiff, its possession is not lawful,
but is unlawful. The principle is well stated by Judge Cooley,
in his recent and valuable work on Torts, page 323. He
says : " But if one lawfully entitled to possession can make
peaceable entry, even while another is in occupation, the
entry in contemplation of law restores him to complete pos-
session, and it is not unlawful for him to resort to such means,
short of the employment of force, as will render further
occupation by the other impracticable. " See, also, the case
cited in the note, Steams v. Sampson, 59 Me. 568. The in-
struction was properly refused.
The question discussed as to the weight of evidence in regard
to the damages sustained by appellee, is beyond our domain.
That was for the Appellate Court only. Whilst there may be
some force in appellant's position, still the question was one
of controverted fact, and belonged, therefore, exclusively to the
Appellate Court to determine.
Another ground is urged, in reference to the question of
damages, for a reversal. Appellant gave evidence tending to
prove an outstanding title to the property in controversy in
the village of Cahokia. And appellant asked, but the court
refused to give, this instruction:
"If the defendant has shown that the title to the land de-
scribed by the declaration, at the time when the trespass is
said to have been committed, was outstanding, that is to say,
not in the plaintiff, the plaintiff can not recover damages for
1879.] III. & St. L. R. R. & Coal Co. v. Cobb. 59
Opinion of the Court.
an injury that may have been done to the freehold or to the
land, soil or sand, but only such injury, if any have been shown,
that was done to the possession or property of the plaintiff."
This raises the question whether a mere trespasser may
justify his wrong to all but the actual damage done to the
possession, by showing a title in a third person. Or, to state
the proposition differently, can he mitigate the damages so as to
prevent a recovery for all damages beyond the actual injury to
this mere possession.
Judge Cooley, in his work on Torts, p. 326, says: " Pre-
sumptively, a peaceful possession is always rightful, and the
proof of it is sufficient evidence of the title to enable one to
recover in ejectment against one subsequently found in pos-
session and who shows no right in himself."
Where lands are in the possession of a tenant, and a trepass
is committed on the land, the law is long and well settled that
the tenant may sue and recover for the injury he has suffered
by reason of the loss he has sustained as a tenant, and the
landlord as a reversioner may sue and recover in respect to
the injury he has sustained to his reversion. In such a case,
there may be two recoveries for injuries to the respective
estates, of the tenant and the landlord. This was so held by
the British courts at an early day, and the rule has never been
disregarded by the courts of that country or by the courts of
the various States of the Union, so far as our researches have
led us in the investigation of. the question. But no such rela-
tion exists in this case, and that rule can have no application
here.
In the case of Catteris v. Cowper, 4 Taunt. 547, the plaintiff
sued for trespass in entering upon land lying between premises
rented by plaintiff, and the river Ouse, by the defendant, and
cutting grass. The land bore grass which every one cut who
chose, until two years before the action was brought, and
plaintiff's only title was, that two years previously he had
60 III. & St. L. R. R. & Coal Co. v. Cobb. [Nov. T.
Opinion of the Court.
taken possession and twice mowed the grass, and afterwards
pastured a cow on the strip.
The defendant's case was, that the plaintiff, when he first
cut the grass, had boasted that he cut hay on land for which
he paid neither rent nor taxes; that in a former year he had
purchased the hay cut by another man on the ground, and
that a few years before the trial, in repairing the boundary
fence of his farm, plaintiff had excluded, by his fence, the
land in question, and had frequently shown to other persons
the boundaries of his farm as excluding this land; but Heath,
who tried the case, excluded this evidence offered by defend-
ant, and the plaintiff recovered. Afterwards, on a rule to
show cause why the verdict should not be set aside and a new
trial granted, on a trial in the Common Pleas, the rule was
discharged. The court said : "The case was decided rightly
upon the merits. The defendant stands neither on any former
possession of his own nor derives title under the possession
of any other person. His only objection to the plaintiff's
recovery is, that he has not proved the title he stood on ; that
this land was parcel of the farm he held; but no answer is
given to the fact of his prior possession. The merits are
clearly against the defendant." The rule announced seems to
have been so clear as to have called for the reference to no
authority or any reasoning to establish the rule.
In Allen v. Rivington, 2 Saund. Ill, and Doe ex dem.
Borough v. Reade, 8 East, 356, it was held, that a party could
recover in ejectment, or defend in such an action, on a former
mere naked possession. In the case of Day v. Alverson, 9
Wend. 223, it was held, that a plaintiff claiming the premises
in fee is entitled to recover, although he only show title by
possession. In the case of Jackson ex dem. etc. v. Town, 4
Cow. 602, it was held, that actual possession is prima facie
evidence of legal title to the premises for which ejectment is
brought; and it is one of the most familiar rules, that any
person in the actual possession of land may recover in tres-
pass against a wrongdoer. In fact, the plaintiff must have
1879.] III. & St. L. R. E. & Coal Co. v. Cobb. 61
Opinion of the Court.
>
the actual possession, or the legal title which draws to it the
legal possession, before he can recover in trespass.
In Graham v. Peat, 1 East, 244, it was held, where one was
in possession of glebe lands under a lease void under the
statute by reason of the non-residence of the rector, that he
might nevertheless recover in trespass upon his possession
against a wrongdoer. At Nisi Prius, the plaintiff, on proof
of the absence of the rector the length of time necessary to
render the lease void, was nonsuited; but the Court of King's
Bench revei'sed the judgment, holding that plaintiff was en-
titled to recover, as the defendant had shown no title, but was
only a wrongdoer. Lord Kenyon said: "Any possession
is a legal possession against a wrongdoer. Suppose a burg-
lary committed in a dwelling house of such a one, must it not
be laid to be his dwelling house notwithstanding the defect
of his title under the statute?"
The same question was again before the court in Chambers v.
Donaldson, 11 East, 65. In this last case a plea was filed that
the soil and freehold were the property of one Postman, and
that defendants, as his servants and by his command, broke
and entered the close. To this plea plaintiff replied, admit-
ting that Postman was the owner of the soil and freehold, etc.,
and traversed that they were the servants, etc., and by his
command committed the trespass in the manner and form as
in the plea mentioned. A demurrer was filed to this replica-
tion, and causes were assigned that though the replication ad-
mitted that the dwelling house was the soil and freehold of
Postman, yet by his replication he stated that one Green
demised the dwelling house to plaintiff to hold as therein
mentioned without showing any legal title to do so. And
because plaintiff admitted Postman to be the owner of the
dwelling house but had not deduced any title from him to
Green, and that plaintiff had attempted to put in issue an im-
material fact, etc.
On the argument it was conceded on both sides, that by
showing that the title was in a third person and defendant had
62 III. & St. L. E. R. & Coal Co. v. Cobb. [Nov. T.
Opinion of the Court.
entered by his command, the plaintiff, to recover, would have
been required to show title in himself. And it was claimed
that the authority to enter, averred in the plea, was not trav-
ersable, but by merely showing title in another than the plain-
tiff, he was barred of a recovery. But the judges concurred
in holding that the command of the owner to enter was traver-
sable. Lord Ellenborough said: " Unless the command
be transversable it will be sufficient for a mere wrongdoer,
who has invaded the quiet possession of the plaintiff, to plead
title in another and under authority from him, although that
other did not question the plaintiff's possession. Nay, * *
it might be contended that the same defence could be set up
against a plaintiff who had been in possession for twenty years,
and this monstrous consequence would ensue, that the wrong-
doer would protect himself under a title which the party
himself could not assert in any possessory action. But since
it has been settled * * * that trespass may be maintained
by a person in possession, against a wrongdoer, we are called
upon to strip the wrongdoer of this shield." See, also, Harher
v. Birkheck, 3 Burr. 1556. Other English cases might be
cited in support of the doctrine if it was deemed necessary.
In Sedgwick on Damages, 149, it is said: "It is well set-
tled in England, and generally in the United States, that, to
entitle the plaintiff to bring an action of trespass quare clausum
/regit, possession in fact is indispensable; and as against a
wrongdoer, bare possession is sufficient." The rule is sus-
tained by the cases of First Parish, etc. v. Smith, 14 Pick. 297;
Branch v. Dane, 18 Conn. 233; Curtis v. Hoyt, 19 id. 154.
In this last case, it was held, that the plaintiff in trespass,
having the sole and exclusive possession, may recover against
the wrongdoer the whole damage done by him, though the
conveyance from some of those under whom he claims was
defective.
In the case of Harher v. Dement, 9 Gill, 7, it was held, that
in an action by a termor against his reversioner, the measure
of damages is the actual loss sustained by the lessee; but in
1879.] III. & St. L. R. R. & Coal Co. v. Cobb. 63
Opinion of the Court.
_ jf
such an action against a stranger and wrongdoer, the termor
is treated as the absolute owner of the property, and is held
to be entitled to recover its full value. The general rule is
announced in Webb v. Sturtevant, 1 Scam. 181. See, also,
Gilbert v. Kennedy, 22 Mich. 5. It will be observed that in
none of these cases is anything said as to showing an out-
standing title in mitigation or reduction of damages; nor
have we found any case, nor has appellant's counsel referred
us to any, which has so held, unless it is where the plaintiif
was a tenant. If such cases exist, we and counsel have been
unable to find them; nor do the text books suggest any such
distinction, whilst they do where the plaintiff is a teI*ot,
or holds under another; that he only has an action for injury
done to his mere possessory right, and the landlord, or rever-
sioner, for all damage done to the reversion. If the rule is
different from that stated in the adjudged cases and commenta-
tors to whom we have referred, we should have found the
distinction between the rights of the true owner and the per-
son in possession — the presumptive owner — stated in some
adjudged case.
There is a broad distinction between a case where a mere
trespasser commits the wrong without title, and where it is
done by the owner of the title, or by one authorized by him
to commit the wrong. In this latter case the person in
peaceable possession can only recover the damage he has sus-
tained to his possessory right. But a person in peaceable
possession, suing for a trespass to the freehold, should never
be put upon proof of his title to recover against a wrongdoer
having no title. Being in possession the law presumes him
to be the owner, and will not permit a wrongdoer to question
or call upon him to produce his title to sustain his action.
When this case was previously before us, it was held that
the prior peaceable possession of Cobb claiming title was suf-
ficient to warrant a recovery as against a wrongdoer. And
in that case there was an instruction asked and refused, which
was similar in principle to this one, and whilst it was not
64 III. & St. L. U. E. & Coal Co. v. Cobb. [Nov. T.
Opinion of the Court.
commented on it was regarded as vicious. This question was
then argued, and in disposing of it, without referring to the in-
struction, it was said: "The whole case must turn upon the
question of the date and nature of the several possessions set
up by the parties respectively." The instruction was thus
condemned. Had it been held good, its refusal would have
been noticed as a ground for reversal.
To hold that a wrongdoer may put a plaintiff in peaceable
possession upon the proof of his title, to enable him to a
recovery, would be a harsh rule. If there should be any
technical objection to any link in his chain of title he would
fail, although no other person was claiming title and might
never claim. His title might be clearly equitable, unclaimed
and unchallenged by the person holding the legal title, and
yet, i£ such a rule should prevail, the equitable owner and
occupant might have his property destroyed and only recover
nominal damages. Many titles are defective in the want of
proper acknowledgments or other mere technical defects, and
yet no one claims or challenges the title of the occupant claim-
ing to be the owner, and shall it be said, that he shall not be
protected against a reckless, lawless wrongdoer? The wrong-
doer should in justice make recompense to some one for the
wrong and loss he has inflicted upon the property, and no
reason is perceived why he should have a choice as to whom
he will pay the damages. A recovery by the occupant is a
bar to all future recoveries, and it in nowise concerns him
who shall have the benefit of that recovery. Benjamin v.
Stumph, 13 111. 466, Lyle v. Bake?*, 5 Binn, 457, Chamberlin
v. Shaw, 18 Pick. 278, and White v. Webb, 15 Conn. 302,
show a recovery as against a wrongdoer may be had of the full
value when a recovery is had.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
1879.] Town of Mt. Vernon v. Patton. 65
Opinion of the Court.
The Town of Mt. Vernon
v.
Charles H. Patton.
1. Towns — power to malce contract to prosecute and defend suits. The statute
confers upon towns at their annual town meetings the power to provide for
the institution and defence of all suits in which the towns are interested, and
a town meeting may properly exercise that power by resolution directing the
supervisor to procure legal services, and such a contract will be binding on
the town when the amount agreed to be paid is not so great, in view of the
interests involved, as to indicate bad faith.
2. Bill of exceptions — presumption in favor of ruling below. If, where the
proceedings of a town meeting authorizing the employment of counsel are oft'ered
in evidence against, the town, the record fails to show that they were not signed
by the moderator, or that any objection was made on that ground, and they
are admitted, it will be presumed that they were properly verified and admitted,
unless the contrary is shown by the bill of exceptions.
3. Contract — recovery when performance prevented. Where an attorney
properly employed by a town to perform legal services, being ready and
willing to perform the contract, is prevented from doing so by the proper
officers of the town, he will be entitled to recover under the contract.
Appeal from the Circuit Court of Jefferson county; the
Hon. Tazewell B. Tanner, Judge, presiding.
This was an action brought in the court below, by Patton,
against the town of Mt. Vernon, to recover for services as an
attorney at law, under a contract alleged to have been made
with the supervisor of the town.
Messrs. Green & Carpenter, for the appellant.
Mr. Thomas S. Casey, for the appellee.
Mr. Justice Dickey delivered the opinion of %e Court:
It is insisted the supervisor had no valid authority to make
the contract in question in behalf of the town.
It is provided by statute, that "the electors present at auy
annual town meeting shall have power * * * to provide
5— 94 III.
66 Town of Mt. Vernon v. Patton. [Nov. T.
Opinion of the Court.
for the institution, defence or disposition of suits at law or in
equity in all controversies between the town and any other
town, or any individual or corporation in which the town is
interested."
At the annual town meeting on April 6, 1875, the meeting
adopted a resolution, that "the supervisor is hereby required,
* * * on behalf of said town, * * * to procure legal
services, and to institute and defend all suits in law or equity
* * * in which said town shall be interested, until other-
wise provided."
On the 7th of April, 1875, the supervisor made the contract
in question, by which he retained the appellee, an attorney at
law, to institute and prosecute and defend certain legal pro-
ceedings, in which the town was clearly interested.
It is not perceived that there can be any want of authority
to make the contract. The statute confers the power upon
the town meeting to provide for the institution and defence
of such suits; and by the resolution that power seems to have
been properly exercised by directing the supervisor to procure
legal services, and by the contract this was done.
There is no sufficient ground to question the binding force
of this contract upon the other ground suggested, that it is
" unconscionable." It is true, the whole controversy to which
the litigation in question relates might be in fact ended by the
conduct of one suit; but in view of the extent of the liability
of the town involved in the controversy, and the importance
of the matters, the amount of compensation agreed upon does
not seem so great as to indicate bad faith.
It is said, the proceedings of the town meeting were not
signed by the moderator and town clerk. This is not so made
to appear hy the record. When these proceedings were offered
in evidence, no objection seems to have been made that they
were not properly verified. It must be assumed that they
were (the circuit court having received them in evidence,)
unless the contrary be shown by the bill of exceptions.
1879.] Martel v. City of East St. Louis. 67
Syllabus.
Appellant by its own officers prevented appellee from per-
forming the contract on his part, he being willing and able to
perform. Appellee was entitled to recover.
The judgment must be affirmed.
Judgment affirmed.
Martin Martel
v.
The City of East St. Louis.
1. Municipal corporation — when license protects party from a prosecution.
A city can not be allowed to recover a penalty from a person for pursuing a
trade or calling, for the privilege of which the city has received and retains
the consideration exacted of him. In such case it is immaterial whether the
ordinance under which the privilege was granted was valid or invalid, or
whether the agents acting on behalf of the city were de facto or de jure officers,
or no officers at all.
2. Same — license by de facto officers good, unless money paid is returned. Where
a person takes out a license to keep a dram-shop within a city, pursuant to an
ordinance of the city, the license being issued by de facto officers of the corpo-
ration, and pays into the city treasury the sum exacted therefor, and gives
the proper bonds, before the city can maintain an action against him for the
penalty for carrying on the business without a license, it must revoke his
license and return him his money.
3. Same — doctrine of estoppel applies. The doctrine of estoppel in pais
applies to municipal corporations, but the public will only be estopped, or not,
as justice and right may require. Any positive acts by municipal officers
which may have induced the action of the adverse party, and where it would
be inequitable to permit the corporation to stultify itself by retracting what
its officers have done, will work an estoppel.
4. Same — adoption of acts of its officers. Where a city receives and retains
money paid by a party for a license to keep a dram-shop, with a knowledge of
the purpose for which it was paid, this will be equivalent to an adoption by
the city of the acts of the officers who assumed to act on its behalf in issuing
the license, and will make such acts its own, although such officers were not
de jure officers of the city.
Appeal from the Appellate Court of the Fourth District.
68 Martel v. City of East St. Louis. [Nov. T.
Opinion of the Court.
Mr. R. A. Halbert, for the appellant.
Messrs. G. & G. A. Kcerner, for the appellee.
Mr. Justice Scott delivered the opinion of the Court:
This action was commenced before a justice of the peace,
in the city of Belleville, to recover a penalty imposed by an
ordinance of the city of East St. Louis upon any one who
should keep a dram-shop within the limits of such city with-
out having a license so to do. Under the evidence found in
the record it is not perceived how the conviction can stand.
Defendant was found guilty of the violation of an ordinance
that provides that any person who shall exercise any trade or
calling therein required to be licensed without having first
obtained a license as therein provided, shall be subject to a
fine of not less than $3 nor more than $100 for each and
every oifence, and on conviction he was fined $3. That de-
fendant had a license to keep a dram-shop in the city of East
Louis is conceded, and, under the admissions found in the
record to be taken as evidence, the city will not be permitted
to deny it was a valid license. On the offer being made to
prove certain facts, plaintiff admitted that on the 20th of
June, 1878, defendant paid to Winstanly $56.25 for a license
to keep a dram-shop in the city of East St. Louis; that Win-
stanly was then acting as treasurer of the city; that defendant
had given bond in the sum of $3000, in due form of law, for
the purpose of keeping a dram-shop; that he had received
from Sullivan, who was then acting as city clerk, under the
seal of the city, a license to keep a dram-shop within the juris-
diction of such city, for a period of nine months from the
20th day of June, 1878, and that the city had never returned
to him the money so paid for such license. The license issued
to defendant had not expired by limitation, nor had it been
revoked when this prosecution was commenced.
Receiving the money paid by defendant was equivalent to
an adoption by the city of the acts of the officers who assumed
1879.] Martel v. City of East St. Louis. 69
Opinion of the Court. ^
to act on its behalf in the matter of issuing license, and made
such acts its own. There is no pretence the city did not re-
ceive the benefit of the money paid by defendant for a license
to keep a dram-shop, — a city bond for the amount having been
surrendered and cancelled, — and the admission is, the city has
not "returned" the money to defendant. So long as the city
retains defendant's money paid for a license to pursue his trade
or calling, with the knowledge of the purpose for which it was
paid, it is immaterial whether the officers acting on behalf of
the city were de facto or de jure officers. It can make no
possible difference through what channel the money was
obtained. It would be unconscionable to permit the city to
recover a penalty from defendant for pursuing a trade or call-
ing, when, for the privilege of carrying it on, the city has
received and retains the consideration exacted of him. It is
of no consequence whether the ordinance under which the
privilege was granted was valid or invalid, or whether the
agents acting on behalf of the city were de facto or de jure
officers, or no officers at all. Under the sanction of him who
it is conceded was at the time the chief executive officer of
the city, defendant paid to the city the sum exacted of him
by persons exercising functions of city officers, for the priv-
ilege of pursuing his calling within its jurisdiction, and he
ought not to be molested by the city while engaged in it.
Penalty is punishment for wrongful conduct, and how can it
be said defendant is guilty of conduct for which he ought to
be subjected to penalties denounced against wrongdoers, when
he has paid the city, through persons who it is conceded were
acting in official capacities on behalf of the city, for doing
that of which complaint is made? In any event, before de-
fendant could be subjected to penalties imposed by the ordi-
nance under which he was prosecuted, the city should have
returned him the money paid and revoked the license issued
to him by persons assuming to exercise official acts on its
behalf.
The doctrine of estoppels in pais has been held by this
70 I. C. E. E. Co. v. Union County. [Nov. T.
Syllabus.
court to be applicable to municipal corporations as well as to
private corporations and citizens, but the public will only be
estopped, or not, as justice and right may require. Any posi-
tive acts by municipal officers which may have induced the
action of the adverse party, and where it would be inequitable
to permit the corporation to stultify itself by retracting what
its officers had done, will work an estoppel. Roby v. The City
of Chicago, 64 111. 447 ; Chicago, Rock Island and Pacific
Railroad Co. v. City of Joliet, 79 id. 39; Logan County v. City
of Lincoln, 81 id. 156.
The case in hand comes fairly within the principle of the
authorities cited. The action of the city in not returning to
defendant the money he had paid for a license to pursue his
calling within its jurisdiction, may have, and no doubt did,
produce the action of defendant for which the city now seeks
to recover of him a penalty; and while the city retains defend-
ant's money it would be inequitable to permit the corporation
to stultify itself by repudiating what officers assuming to act
on its behalf had done. The case has not a single feature
that relieves it from the operation of the just rule declared in
the cases cited, and it is according to " right and justice," in
such a case, that the corporation should be held to be estopped
to prosecute defendant for exercising a privilege he has bought
and paid for.
The judgment will be reversed and the cause remanded.
Judgment reversed.
The Illinois Central Eailroad Company
v.
The County of Union.
1. Swamp lands — when selected by Illinois Central Railroad Co. Swamp and
overflowed lands selected by the Illinois Central Railroad Company in lieu of
other lands sold or pre-empted, after the list thereof properly certified was
1879.] I. C. E. K. Co. v. Union County. 71
Opinion of the Court. *
filed for record in the proper county, can not be recovered by the county in
which they lie, as the legal title to such lands is in the railroad company and
not in the county.
2. Under the two grants to the State of Illinois of lands for the purpose
of constructing a railroad, and that of swamp and overflowed lands, the State
took the whole legal title, with full power of disposition, without regard to the
uses for which the lands were granted.
3. Upon the selection of the lands granted the State for railroad purposes,
by the Illinois Central Railroad Company, as provided in the statute, the grant
to the State under the act of Congress of Sept. 20, 1850, became certain, and
the grant attached to the particular lands selected, and the title to them vested
in the railroad company.
Appeal from the Circuit Court of Union county; the
Hon. Monroe C. Crawford, Judge, presiding.
Messrs. Green & Gilbert, for the appellant.
Messrs. Moreland & Rich, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was an action of ejectment, brought by the county of
Union against the Illinois Central Railroad Company, to re-
cover possession of all of section 8, township 13 south, range
2 west, except the south-east quarter of the north-west quar-
ter.
The plaintiff recovered and defendant appealed.
The county claims title by virtue of an act of Congress,
approved September 28, 1850, (9 U. S. Stat, at large, 519; and
see 111. Rev. Stat. 1874, p. 93,) granting to the State of Illi-
nois the swamp and overflowed lands therein, and by virtue
of the act of the General Assembly of this State granting the
swamp and overflowed lands to the counties in which they
respectively lie. (Laws 1852, p. 178.)
The railroad company claims title by virtue of the act of
Congress of September 20, 1850, (9 U. S. Stat, at large, 466;
and see 111. Rev. Stat. 1874, p. 92,) granting to the State of
Illinois certain portions of the public lands for the purpose
of constructing a railroad, and the subsequent act of the Gen-
72 I. C. R. R. Co. v. Union County. [Nov. T.
Opinion of the Court.
eral Assembly of this State of Feb. 10, 1851, incorporating
the Illinois Central Railroad Company and granting the same
lands to it that were granted to the State by the act of Con-
gress of September 20, 1850.
The plaintiff made proof that the land described in the
declaration was, in 1850, and still is, swampy and overflowed,
and thereby unfit for cultivation. It is in Union county.
The grant by Congress by the act of September 20, 1850,
was of certain lands to be used in the construction of a rail-
road, being each alternate section designated by even numbers
for six sections in width on each side of the line of the pro-
posed railroad; and it was provided, in the event that any of
such six sections had been sold or pre-empted before the line
of said railroad should be definitely fixed, that then the Gover-
nor was authorized to appoint agents, who should select other
lands in lieu of those sold or pre-empted, within fifteen miles
of the line of such railroad on each side thereof.
The lands in controversy are more than six miles and less
than fifteen miles from the line of the track and right of way
of defendants' railroad.
By act of the General Assembly (Laws 1871-2, p. 550, and
Rev. Stat. 1874, p. 496,) the record in the proper county, or a
transcript thereof of the list purporting to contain the tracts of
land in such county selected by the Illinois Central Railroad
Company, and purporting to be certified by the Commissioner
of the General Land Office, was made prima facie evidence of
the title of the company to the lands so selected.
There were introduced in evidence portions of the records
of the recorder's office of Union county showing the list pur-
porting to contain the tracts of land selected by the Illinois
Central Railroad Company, and purporting to be certified by
the Commissioner of the General Land Office on March 13,
1852, which list contains and includes the lands in contro-
versy.
We do not see why, under the laws referred to above, this
1879.] I. C. K. R. Co. v. Union County. 73
Opinion of the Court.
did not make proof of title in the railroad company to the
lands on March 13, 1852.
And the county's claim of title from the State was not de-
rived until afterwards, on Jane 22, 1852, by the act of the
legislature of that date granting to the counties in which they
lay the swamp and overflowed lands. Laws 1852, p. 178.
But it is contended for the county that its claim of title
under this act relates back to September 28, 1850, the date of
the act of Congress granting the swamp lands to the State,
and that its title is to be taken as inuring to it from that date
by virtue of said act of Congress; and that at that time the pre-
vious railroad grant did not operate to convey these particular
lands, because the railroad had not been located and the lands
selected.
The position is this, that by the act of Congress of Septem-
ber 20, 1850, lands within a certain distance of the line of a
proposed railroad were granted to the State to aid in the
construction of the railroad; that by the act of Congress of
September 28, 1850, the swamp lands were granted to the
States to enable them to reclaim swamp lands within their
limits.
That under the decision in Railroad Company v. Fremont
County, 9 Wall. 89, until the line of the railroad was defi-
nitely fixed upon the ground, there could be no certainty as
to the particular sections of lands falling within the grant;
nor could the title to any particular section on the line of the
road vest in the State or railroad company ; that the grant
was in the nature of a float until this line was permanently
fixed.
And as the line of the railroad had not been located on
September 28, 1850, the date of the swamp land grant, nor
until a long time afterward, the railroad company not even
having been incorporated until February 10, 1851, — that,
therefore, the railroad grant was inoperative upon the lands
in controversy, and they passed under the swamp land grant
by Congress of September 28, 1850. As the railroad grant
74 I. C. E. K. Co. v. Union County. [Nov. T.
Opinion of the Court.
and the swamp land grant are to the State for different pur-
poses, they are considered by counsel, in effect, as though they
were grants to different persons.
The argument places the county in a like favorable position
as though the swamp land grant had been made to the county
itself by Congress on September 28, 1850.
This is manifestly not a correct view of the subject.
Under the two grants by Congress to the State, the latter
had the whole legal title to the lands with the full power of
disposition of the legal title without regard to the uses for
which the lands were granted. By the act of the General
Assembly of February 10, 1851, the State granted to the
railroad company all the lands which might be selected along
the line of the railroad under the railroad grant made by the
United States to the State by virtue of the act of Congress
of September 20, 1850. A list of the lands as having been
selected by the railroad company and by agents appointed by
the Governor, as authorized by the act of Congress of Sep-
tember 20, 1850, is certified to on March 13, 1852, by the
Commissioner of the General Land Office as having been
made, which includes the lands in controversy, and recom-
mending that the lands be approved to the State, to which is
added the approval of the Secretary of the Interior. The
statute makes the record of this list so certified prima facie
evidence of the title of the railroad company to the lands so
selected. At this time, March 13, 1852, at least, if not be-
fore, the line of the railroad had been definitely fixed and
the selection of the lands in controversy made, as, unless the
the line had been located, the selection could not have been
made as authorized by the act of Congress of September 20,
1850, as is certified. Upon the making of this selection the
subject of the grant under the last named act became certain,
and the grant attached to the particular lands selected, and the
title to them vested in the railroad company. After this
time it is, on June 22, 1852, that the county for the first time
acquires any claim of interest in the lands, and it is by the
1879.] I. C. K. E. Co. v. Union County. 75
Opinion of the Court.
act of the General Assembly of that date granting to the
counties all the swamp and overflowed lands within their
respective boundaries. But this did not operate upon the
lands in controversy, as they had before this time been con-
veyed by the State to the railroad company, and the full legal
title vested in the company. And besides, this very act itself
of June 22, 1852, under which the county derives its claim of
title, recognizes the fact of this selection of lands made by
the railroad company, and excludes all idea of the operation
of the act on them by providing, as it does, in the second
section, that whenever any swamp and overflowed lands
within the limits of any county lying outside of the six sec-
tions and within the fifteen miles of the Central railroad and
branches have been selected by the Central railroad com-
pany, under the provisions of the act of Congress approved
September 20, 1850, it shall be lawful for any such county to
select other lands in lieu thereof, within the fifteen miles au-
thorized by the act of September 20, 1850. And the third
section of the act provides, that the Auditor of Public Ac-
counts shall furnish to the counties a full abstract of all the
swamp and overflowed lands within their limits, and of all the
swamp and overflowed lands which have been, under the act
of September 20, 1850, selected by the Central railroad com-
pany in lieu of lands sold by the United States in said six
sections since the passage of the act of Congress of Septem-
ber 28, 1850, and this for the purpose, as we must suppose, of
furnishing such evidence to the couuties as would enable them
to act under the above provision of the second section in the
selecting of other lands in lieu of lands selected by the rail-
road company.
We are of opinion the evidence fails to show title in the
county, and does show title in the railroad company, and the
judgment is reversed.
Judgment reversed.
76 Low, use, etc. v. Buchanan. [Nov. T.
Statement of the case.
Josiah O. Low, use, etc.
v.
William C. Buchanan.
1. Stock corporation — liability of directors and officers assenting to an in-
debtedness exceeding capital stock. Under the provisions of section 16, chapter
32, Rev. Stat, 1874, the directors and officers of a stock corporation who assent
to an indebtedness in excess of its capital stock, are made personally and
individually liable for such excess to the creditors generally of such corpo-
ration, and not to any particular creditor.
2. The object and purpose of this section is that all claims arising under
its provisions shall be regarded in the nature of a trust fund, to be collected
and divided pro rata among all the creditors, and this distribution can only be
made in a court of equity.
3. Same — and herein of the remedy. Where a stock corporation has incurred
indebtedness in excess of its capital stock to various parties, the individual
liability of its directors and officers assenting thereto can not be enforced by
action at law at the suit of a single creditor, but the remedy is in a court of
equity, where the rights and liabilities of all may be determined and properly
adjusted.
4. If such an action can be maintained at law by a single creditor on the
ground there are no other creditors, he must set forth by proper averments
in his declaration, and prove on the trial, the special circumstances warrant-
ing such an action.
Appeal from the Appellate Court of the Fourth District;
the Hon. Tazewell B. Tanner, presiding Justice, and the
Hon. James C. Allen and Hon. David J. Baker, Justices.
This was an action of assumpsit, brought by Josiah O.
Low, trustee, for the use of the Grand Tower Mining, Man-
ufacturing and Transportation Company, against William C.
Buchanan, in the circuit court of St. Clair county, and tried
before the Hon. William H. Snyder, Judge, presiding.
Mr. Thomas G. Allen, for the appellant.
Mr. Charles W. Thomas, for the appellee.
1879.] Low, use, etc. v. Buchanan. 77
Opinion of the Court.
Mr. Justice Mulkey delivered the opinion of the Court:
The Belleville Nail Mill Company was legally incorporated
in St. Clair county, on the 1st day of June, 1869, under the
act of the General Assembly of this State, entitled "An act to
authorize the formation of corporations for manufacturing,
mining, mechanical or chemical purposes," approved and in
force February 18th, 1857. By the terms of its organization
its capital stock was limited to $161,000, all of which was
paid in within four years from the date of incorporation.
On the 17th of November, 1875, William C. Buchanan,
appellee, being one of its directors, was elected president of
the company, and thereafter acted as such. On the 12th of
January, 1876, the company being then largely indebted to
various persons to an amount exceeding its capital stock,
contracted the further indebtedness of $2483.48 for pig iron,
purchased from appellant, which latter sum was in excess of
the amount of the capital stock of the corporation, and the
same was contracted through the agency of appellee, who, as
an officer of the corporation, assented thereto; and the said
indebtedness was due and unpaid at the time of the com-
mencement of this suit.
On the 8th day of September, 1876, appellant commenced
an action against appellee, in the St. Clair county circuit
court, for the recovery of the above mentioned sum of
$2483.48, due appellant from the Belleville Nail Mill Com-
pany, on the ground that the indebtedness was in excess of the
capital stock of the company, and that appellee, as its presi-
dent, had assented thereto at the time the indebtedness ac-
crued. The form of action was assumpsit, and the declara-
tion contained two special counts, the first of which is as
follows:
That, "heretofore, to-wit, on the 5th day of January, 1876,
at the county aforesaid, the Belleville Nail Mill Company,
being then and there a stock corporation, created by and
under the statute law of said State, with a capital stock limi-
78 Low, use, etc. v. Buchanan. [Nov. T.
Opinion of the Court.
ted to and not exceeding the sum of $161,000, was then and
there indebted to its various creditors in various sums,
amounting in the aggregate to a large sum of money in ex-
cess of and exceeding the capital stock of said stock corpora-
tion, to-wit, in the sum of $100,000 in excess, of the capital
stock of said corporation ; and being so indebted, the said
stock corporation then and there, by and with the assent of
said defendant, who was at the time, then and there, one of
the directors and president of said stock corporation, became
indebted to the plaintiff for goods, wares and merchandise,
then and there sold and delivered by plaintiff to said corpo-
ration, by and at the request of said defendant, then and
there representing said corporation in his official capacity of
president thereof, which last mentioned indebtedness, con-
tracted and incurred as aforesaid by said stock corporation,
amounted to a large sum of money, to-wit, the sum of $3000,
and all of which said last mentioned sum then was and yet
is in excess of the amount of the capital stock of said corpora-
tion, and which sum the said stock corporation has wholly
neglected and refused to pay to plaintiff; whereby and by
force of the statute in such case made and provided, the said
defendant became personally and individually liable to pay to
plaintiff the aforesaid last mentioned indebtedness of said
stock corporation; and being so liable, said defendant, in
consideration thereof, then and there, to-wit, on the day and
year aforesaid, promised to pay to said plaintiff said last men-
tioned sum on request."
The second count, so far as it affects any question raised on
the record in this cause, is substantially the same as the first.
To this declaration the plea of the general issue alone was
filed, and a trial was had, by consent of parties, before the
court without the intervention of a jury, which resulted in the
court finding h\ favor of appellant for the sum of $2483.48, the
amount sued for. Motions for a new trial and in arrest of
judgment were made in their order and severally overruled, and
thereupon judgment was entered in favor of appellant and
1879.] Low, use, etc. v. Buchanan. 79
Opinion of the Court.
against appellee for the above mentioned sura of $2483.48.
From this judgment an appeal was prosecuted to the Appellate
Court of the Fourth District, which, at the February Term,
1878, of that court, resulted in a reversal of the judgment of
the court below and a judgment against appellant for costs.
From this latter judgment an appeal was prayed and allowed
to this court, and appellant assigns for error the action of the
Appellate Court in reversing, annulling and setting aside the
judgment of the circuit court.
There was no controversy in the circuit court about the
facts. The agreed statement of facts fully sustained the alle-
gations in the declaration, and there was nothing in the evi-
dence of appellee that at all affected the case made by appellant
so far as the admitted facts are concerned.
If, as a matter of law, the averments in the declaration are
sufficient to warrant a recovery, the judgment of the circuit
court was right and that judgment should have been affirmed
by the Appellate Court. If, on the other hand, the declara-
tion disclosed no cause of action, the judgment of the circuit
court was wrong, and the Appellate Court committed no error
in reversing it.
Whether appellant is entitled to recover upon the case made
in the declaration depends upon the construction to be given
to section 16 of chapter 32 of the Revised Statutes of 1874,
which is as follows :
" If the indebtedness of any stock corporation exceed the
amount of its capital stock, the directors and officers of such
corporation assenting thereto shall be personally and individu-
ally liable for such excess to the creditors of such corporation."
The right of appellant to recover in the action instituted by
him is based upon the hypothesis that where a corporation
subject to the provisions of this section incurs an indebtedness
in excess of the amount of its capital stock, the individual
creditor acquires a right of action for such excess against so
many of the directors or officers of the company as assented
thereto, and that this right of action may be enforced in a
80 Low, use, etc. v. Buchanan. [Nov. T.
Opinion of the Court.
court of law. We are unable to concur in this view of the
matter. Such a construction would, manifestly, lead in most
cases to great difficulties and hardships. In all cases, where
the corporation is insolvent, to allow the individual creditor
to collect the whole amount of his claim against the corpora-
tion from a solvent officer of the company to the exclusion of
other creditors whose claims are equally meritorious, would
certainly be the grossest inequality and manifestly unjust.
To illustrate : Here is a manufacturing corporation which is
wholly insolvent; its indebtedness is already largely in excess
of its capital stock ; its affairs are controlled by six directors,
three of whom are solvent and the other three are insolvent.
In pursuance of the by-laws of the company, each of these
directors, without the knowledge or assent of either of the
others, on the same day, purchases, on account of the corpora-
tion, manufacturing material to the amount of $1000. These
purchases are made from different material-men, neither of
whom knows anything about the sales made by the others, and
their claims upon the corporation are all equally meritorious.
The corporation being wholly insolvent no part of these
claims can be collected from it. It would therefore follow,
if the construction of this section contended for by appellant be
the true one, the three creditors who happened to sell to the
insolvent directors would get nothing, while the other three
would get the full amount of their claims. We can not
believe the legislature ever intended such results, and that,
therefore, the construction contended for is not the true one.
After a careful consideration of the matter, we have reached
the conclusion that directors and officers of stock corporations
who incur liabilities under the section in question, become
bound and answerable, not to some particular creditor, but, in
the language of the act, to the "creditors" — that is, all the
creditors. This construction puts all the creditors upon a
perfect equality, and is in conformity with the express words
of the act. It was doubtless the object and purpose of the
legislature that all claims arising under the provisions of the
1879.] Low, use, etc. v. Buchanan. 81
Opinion of the Court.
section in question should be regarded in the nature of a
trust fund, to be collected and divided pro rata among all the
creditors. And if we are correct in this conclusion, it is
quite manifest that this distribution of the fund could only
be made in a court of equity.
But the conclusion we have reached does not rest solely
upon the reasons here stated, and many others equally cogent
that might be'mentioned. In Horner v. Henning et al. 93
U. S. Eeports, the Supreme Court of the United States gave
a similar construction to an act of Congress, which, so far as
it bears upon the question under consideration, is almost
identical with the sixteenth section of our own statute. The
act of Congress of May the 5th, 1870, being the same just
referred to, authorized the formation of stock corporations
within the District of Columbia, and contained among other
things this provision: "If the indebtedness of any company
organized under this act shall at any time exceed the amount
of its capital stock, the trustees of such company assenting
thereto shall be personally and individually liable for such
excess to the creditors of the company." The court, in con-
struing this provision, held, in the case just referred to, that
an action at law founded thereon would not lie, and Mr.
Justice Miller, in delivering the judgment of the court,
among other things, said: "The remedy for this violation of
duty as trustee is in its nature appropriate to a court of
chancery. The powers and instrumentalities of that court
enable it to ascertain the excess of the indebtedness over the
capital stock, the amount of this which each trustee may have
assented to, and the extent to which the funds of the incor-
poration may be resorted to for the payment of the debts ;
also, the number and names of the creditors, the amount of
their several debts, to determine the sum to be recovered of
the trustees and apportioned among the creditors in a manner
which the trial by jury and rigid rules of common law pro-
ceedings render impossible." All that is said here applies
with equal force to our own statute and the case at bar.
6—94 III.
82 Low, use, etc. v. Buchanan.* [Nov. T.
Opinion of the Court.
It is urged by appellant, however, by way of answer to the
insurmountable difficulties that would necessarily arise in
every action at law founded upon the statute where there are
more creditors than one, that in the case before the court
there is no evidence that there were other creditors of the
company at the time appellant commenced his suit. Appel-
lant's declaration charges that on the 5th day of January,
1876, the Belleville Nail Mill Company was indebted to various
creditors in various sums, amounting in the aggregate to a
large sum of money in excess of the capital stock of the
corporation, to-wit, the sum of $100,000, and the declaration
itself was filed on the 8th of September following. Now,
assuming that appellant's right to maintain an action at law
under the statute turned upon the question whether or not, at
the time of the commencement of appellant's suit, there were
other creditors of the corporation besides appellant, could the
court, in the light of the admission in the declaration that
only about nine months previous to the commencement of the
suit the corporation was indebted to various persons to the
amount of $100,000 in excess of its capital stock, assume with-
out any allegation or proof to that effect, merely for the pur-
pose of sustaining appellant's action, that all this indebtedness
had prior to the commencement of the suit been discharged
except what was due to appellant, and that he was then the
only creditor? Surely not. Without expressing any opinion
whatever as to whether an action at law would lie under the
circumstances supposed, we are very clear that upon the
hypothesis such action could be sustained under such circum-
stances, the plaintiff would be bound to set forth by proper
averments in his declaration and prove on the trial the special
circumstances warranting such an action. That was not done
in this case, and hence the question raised by the supposed
case is not before us.
It follows, from the views here presented, that the judgment
of the circuit court was erroneous, and that the Appellate
1879.] Wiggins Ferry Co. v. 0. & M. Ry. Co. 83
Syllabus. +
Court properly reversed the same. The judgment of the
Appellate Court is therefore affirmed.
Judgment affirmed.
Mr. Chief Justice Walker: I understand the above
opinion does not, nor is it intended to overrule any previous
decision of this court, but is simply a construction of section
16 of the General Incorporation act. I therefore concur in
the decision of this case.
The Wiggins Ferry Company
v.
The Ohio and Mississippi Railway Company.
1. Conveyance — of the estate granted. A deed to a railway company con-
veying no land, but only the right to construct, maintain and use, in, through,
upon and over certain lands, all such railroad tracks, depots, warehouses, etc.,
as the company should find necessary or convenient for transacting its business,
and to keep thereon, without disturbance, all property belonging to or in the
possession of the company, to have and to hold the said rights and easements
so long as the same should be used for such purposes, and for no other, even
forever, passes only an easement which is a freehold of inheritance, though
only a bare or qualified fee, which may be defeated.
2. A grantee may take a fee in any kind of hereditament, either corporeal
or incorporeal; but there is this distinction between the two species: that a
man is seized in his demesne as of fee of a corporeal hereditament, while of
an incorporeal hereditament he can only be said to be seized as of fee, and
not in his demesne, which means property in the thing itself.
3. Estate — base or qualified fee. A base or qualified fee is such as has a
qualification subjoined thereto, and which must be determined whenever the
qualification annexed to it is at an end. It is a fee, because it may possibly
endure forever; and it is base or qualified, because its duration depends upon
collateral circumstances which qualify and debase the purity of the donation.
4. Covenants — when they run with the land. A covenant runs with the
land when either the liability for its performance or the right to enforce it
passes to the assignee of the land itself. In order that the covenant may run
with the land, its performance or non-performance must affect the nature, quality
84 Wiggins Ferry Co. v. O. & M. Ry. Co. [Nov. T.
Statement of the case.
or value of the property demised, independent of collateral circumstances, or it
must affect the mode of enjoyment, and there must be a privity between the
contracting parties.
5. Where the relation of tenure is created by a grant, all the covenants
of the grantee for himself and his assignees, which affect the land granted,
will be a charge upon it, and bind every one to whom it may subsequently
come by assignment.
6. Where a ferry company granted certain rights or easements to a railroad
company over two tracts of land, which were assumed to be a distinct prop-
erty from the ferry franchise, in consideration of which the railroad company
covenanted with the ferry company always to employ the latter to transport
over the Mississippi river all property and persons which might be taken
across the river, either way, by the railroad company, either for the purpose
of being transported on the railroad of the grantee or having been brought
to said river upon said railroad, so that the ferry company, its representatives
and assigns, owners of the ferry, should have the profits of the transportation,
etc.: Held, that as the covenant was for the benefit of the owners of the ferry,
and not for the owners of the land out of which the easement was granted, a
separate and distinct property, the ferry company could not maintain an action
at law against a party succeeding to the rights, property and franchises of the
railroad company for a breach of the covenant.
Appeal from the Circuit Court of St. Clair county; the
Hon. William H. Snyder, Judge, presiding.
This was an action of assumpsit, brought by the Wiggins
Ferry Company, against the Ohio and Mississippi Railway
Company, to the April term, 1876, of the St. Clair circuit
court.
The Ohio and Mississippi Railroad Company was chartered
by the State of Illinois, February 12, 1851, (Private Laws of
Illinois, p. 89,) and various amendments to the charter were
passed up to the 27th February, 1854, — by one of which it
was authorized to extend its road to the Mississippi river.
The Wiggins Ferry Company is also a corporation organ-
ized, many years since, under a charter of the State of Illi-
nois, and lawfully empowered by it to purchase, own, sell and
convey real estate and interests therein; and, on the 1st day
of April, 1858, the last named company, by deed of that date,
" for and in consideration," as expressed therein, " of the
1879.] Wiggins Ferry Co. v. 0. & M. Ry. Co. 85
Statement of the case.
future observing, fulfilling and keeping by the party of the
second part of the covenants and stipulations thereinafter
contained, to be kept, observed and fulfilled by the party of
the second part, and also in consideration of $1 paid by the
party of the second part/' etc., did "give, grant and convey/'
unto the Ohio and Mississippi Railroad Company, as party of
the second part, "the right to construct, maintain and use, in,
through, upon and over the piece or parcel of ground herein-
after described, all such railroad tracks, depots, warehouses,
and other buildings and erections as the said party of the
second part shall find to be necessary or convenient to be
constructed, maintained or used for the purpose of transact-
ing the business of the said party of the second part, and to
keep thereon, without disturbance, all property of every de-
scription belonging to, or which may be in the possession,
charge or custody of, the said party of the second part, and to
take upon and over the said piece or parcel of ground all
persons and property, and to use the said piece or parcel of
ground in the transaction of the business of the said party of
the second part, as the said party of the second part may find
necessary or convenient" — and then follows the descriptions
of two pieces of land, after which is the following "tenen-
dum:" "To have and to hold the said several rights and
easements in the said two several parcels of ground above
described, unto the said party of the second part, so long as
the same shall be used and employed for the uses and pur-
poses of the Ohio and Mississippi railroad, as herein specified,
and for no other purposes, even forever; and the party of the
second part, as the consideration upon which the said ease-
ments and rights are hereby granted, covenant with the party
of the first part, as follows:"
Then follow the covenants, the only important one of which,
in the present controversy, is the third, which is as follows:
"Third. The said party of the second part will always em-
ploy the said Wiggins Ferry Company, party of the first part,
to transport for said party of the second part across the said
86 Wiggins Fekry Co. v. 0. & M. By. Co. [Nov. T.
Statement of the case.
river, all persons and property which may be taken across the
said river, either way, by said party of the second part, to or
from Bloody Island, either for the purpose of being trans-
ported on the railroad of said party of the second part, or
having been brought to said river upon the said railroad, so
that the said party of the first part, their legal representatives
or assigns, owners of the said Wiggins Ferry, shall have the
profits of the transportation of all passengers, persons and
property taken across the said river either way by said party
of the second part, either to or from the city of St. Louis, the
said party of the first part, its legal representatives or assigns,
owners of the said Wiggins Ferry, charging for such ferriage
as low rates as charged by them to any other party between
the city of St. Louis and the said island called Bloody Island,
in the State of Illinois, which said ferriage shall be paid by
the said party of the second part to the said party of the first
part, their legal representatives or assigns, owners of the said
Wiggins Ferry. The said party of the first part agrees to
land a boat at the depot grounds of the party of the second
part so long as desired by the said party of the second part,
to receive and deliver their freight and passengers with rea-
sonable dispatch, and also to furnish a boat to connect with
their night trains upon the payment of a reasonable compen-
sation, whenever the same can be done with safety, navigation
permitting." The deed is inter partes, being sealed by the
Ohio and Mississippi Railroad Company as well as by the
Wiggins Ferry Company.
On the 5th of February, 1861, the Ohio and Mississippi
Railway Company was incorporated by an act of the Illinois
legislature for the purpose of purchasing and taking a con-
veyance of all the railroad property, real and personal, rights
and franchises, of the Ohio and Mississippi Railroad Company,
either by private contract or at any judicial sale thereof which
might thereafter take place.
At the March term, 1862, of the United States Circuit Court
for the Southern District of Illinois, a decree of foreclosure
1879.] Wiggins Ferry Co. v. O. & M. Ey. Co. 87
Statement of the case. *
was entered against said Ohio and Mississippi Railroad Com-
pany, and a sale of its road, franchises, etc., was ordered, to
satisfy certain claims and demands secured by mortgage.
On the 2d day of June, 1862, the said Ohio and Mississippi
railroad, and the property, real and personal, rights and fran-
chises of the Ohio and Mississippi Railroad Company were
sold under that decree and purchased by the Ohio and Missis-
sippi Railway Company.
This suit is to recover for a breach of the third covenant
of the Ohio and Mississippi Railroad Company above set out.
It is averred in the declaration that, "On the 14th of June,
1862, the defendant, having full power and lawful authority
so to do, acquired, by purchase, all the property, powers, privi-
leges, rights and franchises of said railroad company, includ-
ing the said contract and the lano^s therein described, and then
and there took possession of the same, to which purchase and
possession the plaintiff then and there assented, by means
whereof the defendant has been from thence hitherto, and still
is, under and by virtue of said contract, purchase and pos-
session aforesaid, assented to as aforesaid, in the quiet and
peaceable possession, use and enjoyment of said lands therein
described, and the defendant thereby then and there became
the legal representative and assignee, and succeeded to all the
rights and privileges of the said railroad company in and to
the said contract, and thereby assumed and became subject to
all the covenants, stipulations and obligations thereof," etc.
The breach averred is, that the defendant therein, "although
often requested, has wholly failed and refused to do, but, on
the contrary thereof, the defendant, on May 1, 1871, and on
divers other days and times, and on every day between that
day and the commencement of the suit, at, etc., took across
the said Mississippi river, from said Bloody Island to said city
of St. Louis, persons and property which had been brought
to said river upon the railroad mentioned in said contract,
amounting in the aggregate to, to-wit: 300,000 persons, 1000
locomotives, 10,000 omnibuses, 5000 baggage wagons, 40,000
88 Wiggins Ferry Co. v. O. & M. By. Co. [Nov. T.
Statement of the case.
freight wagons, 10,000 freight cars, 10,000 passenger cars, 5000
mail cars, 5000 other kinds of cars, 500,000 tons of merchan-
dize, 500,000 horses, 500,000 head of cattle, 500,000 sheep,
500,000 hogs, 500,000 tons of coal, 500,000 tons of other
kinds of freight, and 500,000 tons of other kinds of property;
and the defendant also then and there took across the said
river from said city of St. Louis to said Bloody Island, for the
purpose of being transported on the said railroad, a like num-
ber of persons and a like quantity of property as above set
forth as having been taken across the said river from said
Bloody Island to said city of St. Louis, and defendant did not
then and there employ plaintiff to transport for defendant
across said river, either way, any of said persons or property
which were taken across the said river as aforesaid, by defend-
ant, so that plaintiff should have the profits of the transpor-
tation of said persons and property across the said river as
provided in said contract, and as defendant had promised, but
wholly neglected and refused so to do; and on the contrary
thereof, defendant, without the consent and against the protest
of plaintiff, then and there employed other persons and corpo-
rations to transport the said persons and property across the
said river' as aforesaid, to-wit: the St. Louis Transfer Co.,
the Madison Ferry Co., the Illinois and St. Louis Bridge Co.,
the East St. Louis and Carondelet Railway, the Union Railway
and Transit Co., and divers other persons and corporations, —
contrary to the letter and spirit, true intent and meaning of
the said contract and of defendant's said undertaking and
promises, and in direct violation thereof and of the covenants,
obligations and stipulations of said contract; and defendant
then and there failed and refused to pay plaintiff the profits
of the transportation of said persons and property across the
said river, although often requested and demanded, by means
whereof plaintiff has been and is deprived of the profits of the
transportation of said persons and property across the said
river as aforesaid, which profits amount in the aggregate to
the sum of $150,000. Yet defendant, although often requested
1879.] Wiggins Ferry Co. v. O. & M. Py. Co. 89
Brief for the Appellant.
and demanded, has not paid the said several sums of money
or any or either of them or any part thereof to plaintiff. To
plaintiff's damage $150,000."
The defendant demurred to the declaration, and the court
below sustained the demurrer and gave judgment thereon for
the defendant.
From this decision the plaintiff appealed to this court and
assigns for error, — 1st. That the court below erred in sustain-
ing the demurrer to the declaration; 2d. The court below
erred in rendering judgment on the demurrer, in favor of
appellee and against appellant, for costs.
Mr. H. P. Buxton, for the appellant :
On the question whether the assignee of the easement
granted by the owners of the ferry were bound by the cove-
nants of its assignor, the following authorities are cited : Jac-
ques v. Short, 20 Barb. 269; Main v. Feathers, 21 id. 647; Tay-
lor's Landlord and Tenant, sees. 437, 499 ; Astor v. Lent, 6
Bosw. 612; Morton v. Pinchney, 8 id. 139 ; Dorrance v. Jones,
17 Ala. 630; Hanson v. Stevenson, 1 B. & Aid. 307 ; D'Aquin v.
Armant, 14 La. An. 217 ; Sutlifv. Atwood, 15 Ohio St. 186.
A mortgagee, or direct purchaser from a tenant, or one who
buys his right at a sheriff's sale, assumes all the tenant's origi-
nal relations to his landlord. Willison v. WatMns, 3 Peters,
50; McMurphy v. Minot,4. N. H. 251; Prettyman v. Walston,
34 111. 175; Gordon v. George, 12 Ind. 408; Lee v. Payne, 4
Mich. 106.
"Where a person, other than the lessee, is in the possession
of leasehold premises under circumstances which imply an
assignment of the lease, he is liable to the landlord, on the
covenant in the lease, to pay rent during his occupation of the
premises, by virtue of his privity of estate. Glover v. Wilson,
2 Barb. 264.
An assignee of a lease, by accepting an assignment thereof,
takes it subject to the payment of the rent which shall there-
after become due. Graves v. Porter, 11 Barb. 592; Cox v.
90 Wiggins Ferry Co. v. O. & M. Ky. Co. [Nov. T.
Brief for the Appellee. Opinion of the Court.
Fenwich, 4 Bibb, 538; M'Cormick v. Young, 2 Dana, 294;
Blake v. Sanderson, 1 Gray, 332; Overman v. Sanborn, 27 Vt.
54.
In an action for rent by the lessor against a person declared
to be an assignee of the lessee, if it appears he is in possession
under the lease with the assent of the lessee, and has all the
benefits of an actual assignee, he will be estopped from insist-
ing that he is assignee only by parol agreement. Carter v.
Hammett, 12 Barb. 253.
All the duties and obligations of a tenant to his landlord
devolve upon his sub-tenant, and upon every one, in succes-
sion, to whom the possession is transferred. Elms v. Randall,
4 Dana, 519.
Messrs. G. & G. A. Kosrner, and Mr. Charles A.
Beecher, for the appellee :
Even if there had been a regular assignment from the old
to the new company, there would be no such privity between
the grantor and the defendant as to enable the former to sue
the latter for a breach of the covenant of the old company.
Mayer v. Patterson, 10 East, 130; Flight v. Glossoph, 2 Bing.
New Cases, 128; Masary v. Southworth, 9 Ohio St. 348.
It is a well established principle that when, either under a
general or special law, a purchaser of a railroad under a fore-
closure sale becomes a corporation, such new corporation is
not liable for the obligations of the old company. Stewart's
Appeal, 72 Pa. St. 291 ; Smith v. Chicago and Northwestern
Railroad Co. 18 Wis. 17; 33 Iowa, 422.
Mr. Justice Scholfield delivered the opinion of the
Court :
It is not pertinent here to inquire whether appellant has a
remedy in equity, or in some other form of action at law.
The question is, simply, is it entitled to recover in this action?
The suit is against one corporation averred to be the assignee
of another, upon a covenant made by the alleged assignor.
1879.] Wiggins Ferry Co. v. O. & M. Ry. Co. 91
Opinion of the Court. *
There is no express undertaking, averred in the declaration,
by the assignee, to perform the covenant of the assignor, nor
is there any averment therein from which such an undertaking
can he held to be legally implied. The only ground upon
which there can be any reasonable .pretence to* base an argu-
ment in favor of the right to recover is, that the covenant is
one which, in legal contemplation, runs with the land; and
it will, therefore, only be important to inquire whether this is
such a covenant.
It was said, in Dorsey v. St, Louis, Alton and Terre Haute
Railroad Co. 58 111. 67 : "A covenant is said to run with the
land when either the liability for its performance or the right
to enforce it passes to the assignee of the land itself. A cov-
enant is said to run with the reversion when the liability to
perform it or the right to enforce it passes to the assignee of
the reversion."
"In order that a covenant may run with the land/* says
Taylor in his work on Landlord and Tenant, (2d ed.) 167,
§ 261, "its performance or non-performance must affect the
nature, quality or value of the property demised, indepen-
dent of collateral circumstances, or must affect the mode of
enjoyment. It must not only concern the land, but there
must also be a privity of estate between the contracting par-
ties,— for if a party covenant with a stranger to pay a certain
rent, in consideration of a benefit to be derived under a third
person, it can not run with the land, not being made with the
person having the legal estate."
It is said, in Rawle on Covenants for Title, p. 341, "When
the statute of quia emptores abolished subinfeudation, privity
of tenure and estate no longer existed upon conveyances
which passed the fee and left no reversion in the donor; and it
became a rule that covenants which imposed any charge, bur-
den or obligation upon the land, were.held not to be incident
to it, and therefore incapable of passing with it to an assignee ;
thus, if the owner of land granted it in fee, reserving to him-
self a rent which the grantee covenanted to pay, here, though
92 Wiggins Ferry Co. v. 0. & M. Ky. Co. [Nov. T.
Opinion of the Court.
the covenant was to be performed out of the land, yet the
assignee of the covenantor would hold the land discharged
from its liability. But, on the other hand, if the covenant
were one intended to benefit the land, it was held to be
incident to it, even if made by a stranger, and, therefore,
whoever might become the owner of the land would also be
entitled to the benefit of the covenant." Where, however,
the relation of tenure is created by a grant, all the covenants
of the grantee for himself and his assignees, which affect the
land granted, will be a charge upon it, and bind every one to
whom it may subsequently come by assignment. Notes to
Spencer's case, 1 Smith's Leading Cases, (part 1) 7th Am. ed.
169.
We are of opinion the conveyance by appellant to the Ohio
and Mississippi Railroad Company did not create the relation
of landlord and tenant, and hence that the case should be
considered divested of the element of tenure. That instru-
ment conveys no land, but merely " the right to construct,
maintain and use, in, through, upon and over" the grounds
therein described, "all such railroad tracks, depots, ware-
houses and other buildings and erections as the said party of
the second part shall find to be necessary or convenient to be
constructed, maintained or used for the purpose of transact-
ing the business of the said party of the second part, and to
keep thereon, without disturbance, all property of every de-
scription belonging to or which may be in the possession,
charge or custody of the said party of the second part,"
etc., etc. The tenendum is: "To have and to hold the said
several rights and easements in the said two several parcels
of ground above described, unto the said party of the second
part, so long as the same shall be used and employed for the
uses and purposes of the Ohio and Mississippi railroad as
herein specified, and for no other purposes, even forever."
This is clearly but an easement. Washburne on Easements,
p. 5; 3 Kent's Com. (8th ed.) 512. It is not an estate for
life, because neither expressly nor by implication is its dura-
1879.] Wiggins Ferry Co. v. 0. & M. Ry. Co. 93
Opinion of the Coui't. ^
tion made to depend upon the life of any one. 2 Blaekstone's
Com. (Sharswood's ed.) 119. It is not an estate for years,
because there is no fixed period for the duration of the estate.
2 Blackstone's Com. (Sharswood's ed.) 140; Taylor on Land-
lord and Tenant, p. 32, § 54. It is not an estate at will, for
there is no pretence that appellant reserved the right to ter-
minate the use of the Ohio and Mississippi Railroad Company
at its will. 2 Blackstone (Sharswood's ed.) 144, 145. In
our opinion the estate is a freehold of inheritance. "Wash-
burn e on Easements, pp. 9-10; 3 Kent's Com. (8th ed.) 512.
It is said in 2 Blackstone's Com. 104, (Sharswood's ed.) :
"Taking * * fee . * * in its secondary sense, as a
state of inheritance, it is applicable to and may be had in any
kind of hereditaments, either corporeal or incorporeal. But
there is this distinction between the two species of heredita-
ments,— that, of a corporeal inheritance a man shall be said
to be seized in his demesne, as of fee; of an incorporeal one,
he shall only be said to be seized as of fee, and not in his
demesne. For, as incorporeal hereditaments are in their
nature collateral to and issue out of lands and houses, their
owner hath no property, dominieum, or demesne in the thing
itself, but hath only something derived out of it, resembling
the servitudes, or services, of the civil law. The dominieum
or property is frequently in one man, while the appendage or
service is in another. Thus, Caius may be seized as of fee of
a way leading over the land of which Titius is seized in his
demesne as of fee"
It is true, the estate here may not endure forever; it may
be terminated by the failure to use and employ the rights and
easements granted in the manner prescribed in the grant; but
if they shall be so used and employed the grant is forever.
And this seems to meet Blackstone's definition of a qualified or
base fee, which he thus defines and illustrates :
" A base or qualified fee is such a one as hath a qualifica-
tion subjoined thereto, and which must be determined when-
ever the qualification annexed to it is ataiiend. As, in the case
94 Wiggins Ferry Co. v. 0. & M. By. Co. [Nov. T.
Opinion of the Court.
of a grant to A and his heirs, tenants of the manor of Dale.
In this instance, whenever the heirs of A cease to be tenants
of that manor, the grant is entirely defeated. So, when
Henry VI granted to John Talbot, lord of the manor of
Kingston Lisle in Berks, that he and his heirs, lords of the
said manor, should be peers of the realm by the title of barons
of Lisle: here John Talbot had a base or qualified fee in
that dignity, and the instant he or his heirs quitted the
seignory of this manor, the dignity was at end. This estate
is a fee, because by possibility it may endure forever in a
man and his heirs; yet, as that duration depends upon the
concurrence of collateral circumstances, which qualify and
debase the purity of the donation, it is therefore a qualified
or base fee."
It remains, then, only to inquire, does the performance or
non-performance of this covenant affect the nature, quality
or value of the property demised, independent of collateral
circumstances, or the mode of its enjoyment?
It is not shown that the two parcels of lands in which this
easement is granted are any part of the ferry of appellant. For
aught that appears, these properties are totally distinct and
independent of each other, and we are authorized to assume
that a sale and conveyance of the one would not necessarily
affect the other.
This covenant is not to do anything upon or about the
easement granted to the Ohio and Mississippi Railroad Com-
pany, nor does it in anywise affect the parcels of land in
which the easement is granted. Its language is : "The said
party of the second part will always employ the said Wiggins
Ferry Company, party of the first part, to transport for the
said party of the second part across the said river all persons
and property which may be taken across the said river, either
way, by the said party of the second part to or from Bloody
Island, either for the purpose of being transported on the
railroad of said party of the second part, or having been
brought to said river upon the said railroad, so that the said
1879.] Wiggins Ferry Co. v. O. & M. By. Co. 95
Opinion of the Court.
party of the first part, their legal representatives or assigns,
owners of the said Wiggins Ferry, shall have the profits of the
transportation" etc., etc. So, it is the owner of the ferry,
and not the owner of the parcels of land, for whose benefit
the covenant is made. Hence if appellant had conveyed its
ferry to A, and its parcels of land to B, A alone would have
been injured by a breach of the covenant. It is impossible
to conceive how the owner of the parcels of land, merely as
such, could be injured by a breach of the covenant. It adds
nothing to the value of the parcels of land, and gives nothing
to him claiming as owner, merely because he is owner. It is
all for the benefit of the owners of the ferry, a totally separate
and distinct property. It would be difficult to give a better
illustration of a purely collateral covenant.
It has been said, whether a covenant will or will not run
with land does not, however, so much depend on whether it
is to be performed on the land itself, as whether it tends di-
rectly or necessarily to enhance its value, or render it more
beneficial and convenient to those by whom it is owned or
occupied. Masary v. Southworth, 9 Ohio N. S. 340. Follow-
ing this form of expression, the easement here granted is in
the two parcels of land, not in the ferry, while the covenant
relates to and affects the ferry only. Undoubtedly the cove-
nant enhances the value of the ferry, or renders it more
beneficial, but this has nothing to do with the two parcels of
land in which the easement is granted. See Webb v. Russell,
3 Term R. 393, 402; Bally v. Wells, 3 Wilson, 25-29; Hurd
v. Curtis, 19 Pickering, 459 ; Brewer v. Marshall, 3 C. E.
Greene, 337; 4 id. 537, 547; Speneer's case, and notes, 1st
part 1 Smith's Leading Cases.
It may be questionable whether this easement, under the
allegations before us, legally passed to the assignee, the present
appellee, at all, and of course, if it did not, no covenant could
run against appellee as being a charge upon that easement.
But upon this we express no opinion. We have assumed,
without examination, that the' declaration sufficiently avers
96 Slate v. Eisenmeyer. [Nov. T.
Syllabus.
the assignment of the easement; and we have also assumed,
as matter of law, (of the correctness of which, however, we do
not apprehend there can be much doubt,) that the easement is
one with which, under a different supposable state of facts, a
covenant might run as a covenant running with the land.
Our decision goes no further than the matters specially no-
ticed. For the reasons given, we think the court below
properly sustained the demurrer to the declaration. Its judg-
ment is therefore affirmed.
Judgment affirmed.
Emery P. Slate
v.
George C. Eisenmeyer.
1. Continuance — affidavit for, how construed. It will be presumed that
the statements in an affidavit for a continuance are as favorable to the appli-
cant as the facts will warrant, and, as in the case of a pleading, all intend-
ments, so far as the affidavit is equivocal or uncertain, must be taken against it.
2. Evidence — affidavit for continuance admitted. The court is not bound to
admit in evidence, on the trial, an affidavit for a continuance which has been
admitted to avoid a continuance, without regard to the competency of its con-
tents as evidence. When such affidavit, if admitted, could not have affected
the general result, upon a trial, there is no error in excluding the same.
3. The admission of an affidavit to avoid a continuance does not make facts
therein stated, which are improper evidence, admissible on the trial. The
true test is, could the witness, if present, be permitted to testify to the facts.
If not, they should be excluded from the jury, thus putting the affidavit on an
equality with the witness.
4. Same — to show extent of possession. A plaintiff in a possessory action,
where there is no apparent actual possession of a portion of the premises,
may, for the purpose of showing the extent of his possession, put in evidence
the deeds or title papers under which he claims. This doctrine is held appli-
cable alike to actions of trespass and forcible detainer. But this principle has
never been so extended as to permit a defendant in forcible detainer to intro-
duce such papers to show an adverse title in himself.
5. Same — in forcible detainer. Where a husband, under a writ of posses-
sion against him, surrendered the possession of land to the plaintiff, and leased
1879.] Slate v. Eisenmeyer. 97
Opinion of the Court.
the same premises of the plaintiff, and a grantee of the wife of the lessee, when
sued in forcible detainer, in an affidavit for a continuance stated that he
expected to prove by the wife, under whom he claimed, that she purchased the
land in dispute from the "Chalfin heirs," who gave her peaceable possession,
and that she, on her conveyance, gave the defendant peaceable possession,
which was long before the commencement of the suit: Held, that the facts
stated were too indefinite and uncertain to make the affidavit evidence. If the
possession existed in the "Chalfin heirs" when the grantor's husband leased
the premises, that should have been stated.
6. Parol evidence — to prove title to land. Conveyances of land can not
be established by verbal testimony, except in the case of lost or destroyed
deeds.
Appeal from the Circuit Court of Monroe county; the
Hon. Amos Watts, Judge, presiding.
Messrs. Tanner & Wilbanks, and Mr. H. C. Talbott,
for the appellant.
Mr. William Winkelman, for the appellee.
Mr. Justice Mulkey delivered the opinion of the Court:
This is an appeal from a judgment of the Monroe county
circuit court, rendered at the September term, 1877, as of
the March term of the same year, in an action of forcible
detainer in favor of appellee, and against appellant, for the
recovery of certain premises containing 10T8o5o acres, and be-
ing a part of what was known both as the " Chalfin farm"
and "Wiswell farm."
It appears that in 1872, while Wiswell and his family were
residing on this farm, the premises were sold under a deed
of trust and appellee became the purchaser; that upon Wis-
well refusing to give possession, appellee brought an action of
ejectment against him, in which he recovered a judgment for
the premises and an order for a writ of possession ; that hav-
ing sued out the writ and placed it in the hands of an officer,
he accompanied him to the place for the purpose of receiving
possession. On arriving there Wiswell expressed a readiness
to surrender the premises, but upon further consultation, Wis-
7—94 III.
98 Slate v. Eisenmeyer. [Nov. T.
Ooinion of the Court.
well, on behalf of himself and wife, entered into a written
agreement with appellee with respect to the further occupancy
of the farm. The agreement is in these words:
"In consideration of Amasa Wiswell and Margaret Wis-
well, his wife, having given and hereby agree to give and
deliver to George C. Eisenmeyer the possession of the house
and premises now occupied by said Wiswell and family,
in the county of Monroe, and State of Illinois, known as the
' Wiswell farm/ on the 1st day of September, 1874, said
Eisenmeyer hereby agrees to let said Margaret Wiswell have
the wheat now growing on said farm and sowed by Amasa
Wiswell, and also pay to Margaret Wiswell, on the day such
possession is delivered, the sum of §100. This to be a final
settlement between said Amasa and Margaret Wiswell and
said Eisenmeyer as to all matters concerning the farm afore-
said and any payments heretofore promised to be made.
April 17, 1874. George C. Eisenmeyer.
Amasa Wiswell."
The matter having been thus satisfactorily arranged, appel-
lee and the officer returned, leaving Wiswell and his family in
possession of the premises. At the expiration of Wiswell's
term under the agreement, he refused to give appellee posses-
sion as therein provided. Appellee, thereupon, tendered Mrs.
Wiswell the $100 which he was to pay her on receiving pos-
session, and brought an action of forcible detainer against Wis-
well to recover possession. Appellee obtained judgment, and
having again sued out a writ of possession and placed it in the
hands of an officer for execution, proceeded with him to the
premises to receive possession. But on arriving there a new
complication arose. Mrs. Wiswell claimed to be the owner
and in the exclusive possession of a part of the premises,
being the same now in controversy, and declined to surrender
them.
This complication of affairs seems to have presented to the
minds of appellee and the officer a legal problem of so serious
a character that they did not see their way clearly in proceed-
1879.] Slate v. Eisenmeyek. 99
Opinion of the Court.
_____ — __ — _ — _.
ing further under the writ, and appellee finally determined to
suspend further action against the husband and institute simi-
lar proceedings against the wife, which he accordingly did, and
finally obtained a judgment against her, but while these
proceedings were pending against her the possession of the
premises was transferred by her to appellant, and hence the
suit against him.
Appellee testifies that, at the time he accompanied the offi-
cer for the purpose of taking possession of the premises under
the writ of possession in the ejectment case, Wiswell gave him
possession of the farm, including the 10 j^ acres in contro-
versy, and that Mrs. Wiswell received under the contract
above recited from $1100 to $1200 worth of wheat, and, also,
that he let Wiswell have the piece of land in controversy for
potatoes.
It is further shown, by the testimony of Nick. Welsh, who
had known the Wiswell farm for sixteen years, that the piece
of land in controversy was a part of it, and had always been
inclosed by a fence until lately, and that Wiswell had used it
for the last six or seven years, except the last year he under-
stood Slate had it. None of the facts above recited are at all
controverted by any opposing evidence.
It is true, some of the facts we have stated are controverted
by counsel in their argument, yet the court, in arriving at a
conclusion, can, of course, only look to such facts as appear
of record. From the foregoing it clearly appears, then, that
at the time of executing the agreement of April 17, 1874,
Wiswell, with his family, was in the actual possession of the
farm known as the Chalfin or Wiswell farm, of which the
premises in controversy constitute apart; that by virtue of
the contract, he, on that day, became the tenant of appellee
for a definite term, expiring on the 1st of September follow-
ing; that at the expiration of the term, Wiswell refused to
surrender the premises to appellee, and that Wiswell and those
acting in concert with him have from thence hitherto kept
appellee out of possession. This is the case made by appellee.
100 Slate v. Eisenmeyer. [Nov. T.
Opinion of the Court.
Previous to the trial, appellant, upon his own affidavit,
made an application for a continuance of the cause on account
of the absence of Margaret Wiswell. It does not appear that
the court ever passed upon the sufficiency of the affidavit, but
the record recites the fact that the affidavit was, in pursuance
of the statute, admitted by the plaintiffs. Upon the trial of
the cause, appellant offered in evidence the affidavit, which,
upon objection of appellee, was excluded from the jury, and
this is assigned for error. That portion of the affidavit which
sets forth the facts proposed to be proved by the witness is as
follows :
"That this affiant expects to prove by the said Margaret
Wiswell that she never rented, leased, sold or conveyed, or
contracted with the said George C. Eisenmeyer for any of the
lands described in the complaint, either for the possession, re-
version, remainder, or otherwise, or with any person or persons
for him; and he expects to prove further, by said witness, that
she purchased the lands described in complaint in this cause
from the Chalfin heirs — that is to say, from Samuel Chain n
and Harriet Horine, former owners of said land ; and that
they gave her peaceable possession of the lands described in
the complaint in the forcible detainer suit as aforesaid; and
that she never, after her purchase of said land, gave any per-
son or persons any authority or right to rent, lease or to
deliver the possession of the said land aforesaid to the said
George C. Eisenmeyer or anybody else; that she held peace-
able possession of the same until she sold the said lands
described in the amended complaint in this cause to Emery
P. Slate, as by her deed to him will show; and immediately
on the sale of the said land to Slate, that she gave to said
Emery P. Slate peaceable possession of the same; and that
the said Eisenmeyer never owned or had any title or the right
to the possession of said land or any part thereof; and that
upon the delivery of the peaceable possession of said lands to
the said Slate, he paid her the full amount of the consid-
eration expressed in her deed to him, and that she gave the
1879.] Slate v. Eisenmeyer. 101
Opinion of the Court. +
peaceable possession of the said lands in controversy long
before the commencement of the suit in the above entitled
The only matter set forth in this affidavit that can reason-
ably be claimed to have any bearing on the issues involved in
the suit, are the facts that the peaceable possession of the
premises in controversy was given to Margaret Wiswell by the
Chalfin heirs, and that she held the peaceable possession of the
same till she sold to appellant, at which time she transferred
the possession to him, and that this was long before the com-
mencement of the suit. For the purpose of passing upon the
questions raised by the assignment of error, it can not be
assumed that if the witness were present she would testify to
anything more than is stated in the affidavit; and it must be
presumed that the statements in the.affidavit are as favorable
to appellant as the real facts would warrant; and therefore,
as in the case of a pleading, all intendments, so far as the affi-
davit is equivocal or uncertain, must be taken against it.
Viewing the affidavit in the light of these familiar princi-
ples, there is certainly nothing in it that could have at all
affected the case made by appellee, or in any manner have
strengthened his own case by allowing it to go to the jury,
and, therefore, appellant was not injured or prejudiced by
excluding it.
Appellant proposed to show by the witness that she obtained
possession of the premises from the Chalfin heirs long before
the commencement of the suit, but how long, is not stated.
"Long" is a very indefinite term. The actual duration of
time expressed by it depends pretty much altogether upon the
circumstances under which it is used or the subject matter to
which it is applied. It may mean a minute or a hundred
years, according to circumstances. Whether the possession
of the Chalfin heirs claimed to have been given to Mrs. Wis-
well, and subsequently transferred to appellant, would have
had the slightest effect upon the case made by appellee, de-
pended altogether upon whether such possession existed at
102 Slate v. Eisenmeyer. [Nov. T.
Opinion of the Court.
the time of the agreement of April 17, 1874. If appellant
had proposed to show that the Chalfin heirs at that time were
in the possession of the premises, it would have presented
quite a different question. To have proved that would have
directly rebutted the hypothesis upon which appellee's case
rests, — namely, that on that day Amasa Wiswell, being in the
actual peaceable possession of the premises in controversy, by
a contract, in writing, surrendered the same to. appellee, and
became his tenant. But, on the other hand, to have simply
shown that the Chalfin heirs, by some means or other after
that time, without the consent of appellee, obtained possession
of the premises and transferred the same to appellant, would
not have presented the slightest defence, and it must be pre-
sumed, according to. well recognized principles, that nothing
more than this could have been shown; otherwise, it would
have been so stated in the affidavit.
It seems to be claimed, however, that inasmuch as the ap-
pellee had admitted the affidavit in order to prevent a con-
tinuance, it then became a matter of right to have it go to the
jury, without regard to the competency of its contents as
evidence. A fair construction of the statute does not warrant
this conclusion.
The statute should not be so construed as to make it im-
perative on the court to permit an affidavit to go in evidence
which contains matter that is impertinent or does not tend
to prove the issue. Nor could it have been intended by the
legislature to deprive a party of the right to question the com-
petency of the facts proposed to be proved by the absent wit-
ness merely because the affidavit has been admitted to avoid
a continuance. Nor could it have been intended to make
facts, merely because they are set up in an affidavit and ad-
mitted for the purpose of a trial, legitimate testimony, which,
if offered to be proven by the witness on the stand, would
be rejected as incompetent. It is but reasonable, therefore,
to suppose that the legislature intended that where a party,
for the purpose of a trial, admits an affidavit for a con tin u-
1879.] Slate v. Eisenmeyer. 103
Opinion of the Court.
ance, he will be held to have admitted the facts in the affida-
vit, subject to his right to question their competency.
This construction of the statute places the affidavit upon an
equality with the witness. It is made to speak on the trial in-
stead of the witness; but, like the witness, it can only speak
such facts as are competent to prove the issue. Any other
construction of the act would force a party, in all cases where
the court erroneously holds an affidavit sufficient, to either
submit to an unjust and sometimes ruinous continuance, or
to the penalty of having irrelevant facts put in evidence
against him without the right of questioning their competency.
It is true the court must necessarily pass upon the competency
of the facts in determining the sufficiency of the affidavit.
But that is always done without argument in advance of the
trial, and is uniformly, to a great extent, an ex parte determi-
nation.
Suppose, in the hurry of business, the court, upon a casual
examination, concludes the facts proposed to be proved are
material, and the opposite party, to prevent a continuance,
admits the affidavit, but the court, upon further consideration,
becomes satisfied that the facts in the affidavit are not compe-
tent evidence,-*— is the court bound to allow the facts to go to
the jury merely because the affidavit has been admitted? We
think not. Often an affidavit, as in this case, states some facts
that are beyond all question improper to go to the jury ; yet,
can it be seriously maintained that these facts must, neverthe-
less, be put in evidence merely because, for the purpose of
avoiding further delay, the affidavit has been admitted? Cer-
tainly not. And yet, if it is proper for the court to exclude,
on the trial, some of the facts on the ground of incompetency,
why not all, if the court should, on further consideration, be-
come satisfied that all are incompetent?
The exclusion of the affidavit from the jury was in effect a
denial of the continuance upon the grounds stated in it, and
if the affidavit was insufficient, as it clearly was, there was
no error in doing so.
104 Slate v. Eisenmeyer. [Nov. T.
Opinion of the Court.
Ill the case before us, most of the facts proposed to be
proved by the witness related solely to the question of title,
which was not at all involved in the controversy, and even
if the title had been involved, the evidence would clearly
have been inadmissible. Nothing is better settled than that
conveyances of land can not be established by verbal testi-
mony, except in the case of lost or destroyed deeds, and no
such case as that was presented by the affidavit.
So there can be no pretence for the claim that the affidavit
was improperly excluded, so far as it related to facts touch-
ing the question of title. And as we have already found that
the facts proposed to be shown, relating to possession, are
so vague and uncertain with reference to time and circum-
stances as to be without any appreciable probative force, it
follows there was no error in excluding the affidavit from the
jury. The only tendency it could have had, if admitted as
a whole, would have been to mislead the jury.
Appellant also offered in evidence a deed to himself for the
premises in controversy, executed by Margaret Wiswell, and
her husband, Amasa Wiswell, dated the 4th day of Decem-
ber, 1875, which, on objection of appellee, was excluded from
the jury. And this is also assigned for error. It has been
held in this court, in a number of cases, that a plaintiff in a
possessory action where there is no apparent actual possession
of a portion of the premises, may, for the purpose of showing
the extent of his possession, put in evidence the deeds or title
papers under which he claims. And this doctrine is held
applicable alike to actions of trespass and forcible detainer.
But this principle has never been so extended as to permit a
defendant in an action of forcible detainer to introduce con-
veyances or other title papers which would show an adverse
title in defendant. On the contrary, it has been held in a
number of well considered cases that such evidence is not
admissible. ISTor can a case be taken out of the operation of
this rule by counsel stating that the title papers are offered
merely for the purpose of showing the extent of the defend-
1879.] Irvin v. N. O., St. L. & C. K. R. Co. 105
Syllabus. ■*
ant's possession. If defendant in such case relies upon
possession in himself or another at the time of the injury
complained of, it must be shown by evidence other than his
title papers, and when shown aliunde it is just as available
without the title papers as with them. Huftalin v. Misner,
70 111. 205; Doty v. JBurdiek, 83 id. 475.
It clearly follows from the above authorities, and many
others that might be cited, that the court below properly
excluded the deed in question from the jury.
It is also urged that the court erred both in the giving and
refusing of instructions. We see no substantial objection to
the instructions given, and are of opinion that the others
were properly refused. If any error was committed it was in
favor of appellant. But even if an error had been committed
in this respect, under the circumstances of the case we would
not feel warranted in reversing for that reason.
In the light of the facts proven and all that were offered
to be proved, the law is so manifestly with appellee that we
would not be justified in reversing the case for any of the
errors assigned, even if there was no question as to their ex-
istence. Whatever rights appellant may have to the premises
in controversy they must be enforced in some other form of
action. *
Perceiving no error in the proceedings of the court below,
the judgment must be affirmed.
Judgment affirmed.
Alexander H. Irvin
v.
The New Orleans, St. Louis and Chicago Eailroad Co.
1. Taxes — collection, when enjoined. Where a party, not the owner or lessee
of property, having no taxable interest therein, but who is merely in joint use
of the same with the owner for a compensation, is taxed for one-half of its
106 Irvin v. N. O., St. L. & C. E. K. Co. [Nov. T.
Brief for Plaintiff in Error.
value, the tax will be illegal and levied without warrant of law, and a court
of equity will enjoin its collection.
2. Same — when personal property liable to, in this State. The first clause of
the first section of the Revenue law which provides that all real and personal
property in this State shall be assessed and taxed, does not contemplate the
assessment of personal property that is merely passing through or is in the
State for a temporary purpose only.
3. While the situs oft personal property, is, under many. circumstances, con-
sidered by the law as being that of its owner, such is not the uniform rule.
Where the property is permanently located at a particular place, it is subject
to taxation there whether such place is the domicil of the owner or not.
4. Same — place where boat is subject to taxation. A boat is subject to taxa-
tion at the place of its registration and where it lies up when not in use — in
other words, at its home port; and this without regard to the place where its
owners may reside.
5. Where a transfer boat, registered at Cairo, in this State, and owned,
one-half by a corporation in this State and the other half by a corporation
of another State, was used for the transfer of the cars, etc., of both corpora-
tions from Cairo to the Kentucky shore and back, and when not in actual use
was laid up in Cairo, where the hands operating the same resided, and where
the companies assessed had a business office, it was held that the interest of
each of the corporations was subject to taxation in Cairo.
6. Same — party paying for joint use of another's property, not liable. Where
one railroad company builds a car hoist and lays a third rail upon its own
ground, and at its own expense, which is attached to and becomes a part of
the soil, another railroad company using the same jointly with the owner, for
which it pays a compensation, can not be taxed for one-half its value.
Writ of Error to the Appellate Court of the Fourth Dis-
trict; the Hon. Tazewell B. Tanner, presiding Justice,
and Hon. James C. Allen and Hon. George W. Wall,
Justices.
Messrs. Linegar & Lansden, for the plaintiff in error :
A vessel is taxable at its situs which is her home port, and
we ascertain what her home port is by finding at what port
the vessel is enrolled or registered, the residence of her owner
or owners, the places where she lies up, the residence of her
officers. Citing sec. 4141, Rev. Stat, of the United States,
and sec. 4178; St. Louis v. Ferry Co. 11 Wall. 423; Morgan
v. Parham, 16 id. 471; Wiley v. City of Pekin, 19 111. 160;
1879.] Ievin v. N. O., St. L. & C. R. E. Co. 107
Brief for Defendant in Error.
City of New Albany v. Meekin, 3 Ind. 481 ; Burroughs on
Taxation, sec. 46.
As to the taxation of personal property situate in a district,
town, county or State other than that in which the owner re-
sides, we cite the following authorities : Mills v. Thornton, 26
111. 300; Board of Supervisors v. Davenport, 40 id. 197-209;
Dunleith v. Reynolds, 53 id. 45; First National Bank v. Smith,
65 id. 44-54; Hoyt v. Comrs. of Taxes, 23 N. Y. 224; The
People v. Commissioners of Taxes, 35 id. 423-440; St. Louis
v. Ferry Company, 40 Mo. 580; Alvany v. Powell, 2 Jones Eq.
(N.C.)51.
As to enjoining the collection of taxes, see Porter v. Pock-
ford, Pock Island and St. Louis Railroad Co. 76 111. 561-596;
Chicago, Burlington and Quincy Railroad Co. v. Cole, 75
id. 591.
Messrs. Green & Gilbert, for the defendant in error:
Owners of steamboats are tenants in common, each owning
a distinct though undivided interest; the admissions of one
do not bind the other, and the undivided interest of each is a
proper subject of assessment and taxation against each. Story
on Partnership, sees. 417, 453; Conklin on Admiralty, vol.
1, ch. 10, p. 318 ; Cooley on Taxation, ch. 12, p. 272 ; Peabody
v. County Commissioners, 10 Gray, 97; Fairbanks v. Kittredge,
24 Vt. 19.
A corporation actually and permanently resides within the
State by whose law it is created. Ins. Co. v. Francis, 11
Wall. 216; St. Louis v. Ferry Co. 11 id. 431; Hoyt v. Comrs.
of Taxes, 23 N. Y. 224; Mineral Point Railroad Co. v. Keep,
22 111. 18.
To constitute an actual situs in this State the property must
so abide in the jurisdiction as to become incorporated with
and form apart of its personal property. 11 Wall, supra, and
16 id. 476.
108 Irvin v. N. O., St. L. & C. R. R. Co. [Nov. T.
Opinion of the Court.
Mr. Chief Justice Walker delivered the opinion of the
Court:
In the year 1874 a tax was levied amounting to $1155 by
the authorities of Alexander county, upon property claimed
to belong to the Mississippi Central Railroad Company. Of
this tax $693 was levied on one-half interest of that company
in the transfer steamboat "H. S. McComb; " $559.69 was
assessed upon a superstructure for hoisting cars, sometimes
called a "car-hoist," and a third rail laid on the track of the
Illinois Central Railroad Company's track in the city of
Cairo, and $2.31 was assessed on office furniture of the first
named company.
On the 3d day of July, 1874, the Mississippi Central Rail-
road Company and the New. Orleans, Jackson and Great
Northern Railroad Company were consolidated, and assumed
the name of the New Orleans, St. Louis and Chicago Rail-
road Company. That company on the 8th day of February,
1875, filed a bill to enjoin the collection of all of this tax
but the $2.31 levied on the office furniture, which was ten-
dered to the collector before the suit was brought.
The terminus of the Mississippi Central Railroad Company
was at Filmore, on the bank of the Ohio river, in Kentucky,
opposite to the city of Cairo. The Illinois Central Railroad
Company had its terminus in Cairo, at the bank of the river.
Each road had an incline on its side of the river, from which
cars were run upon the steamer H. S. McComb, and by it
they were carried to the incline on the opposite bank, to go
north or south over one or the other road as occasion might
require. The steamer was so engaged in May, 1874, when
assessed for taxation. It was built for that business, and was
then owned by the Illinois Central and the Mississippi Cen-
tral railroads, each having one-half interest in the vessel.
The tax of $693 was levied on the half of the vessel owned
by the Mississippi Central Railroad Company for the year
1874. It is, by plaintiff in error, claimed that this one-half
1879.] Irvin v. K O., St. L. & C. K. R. Co. 109
Opinion of the Court.
is liable and subject to taxation in this State, whilst on the
other side it is claimed that it was not liable or subject to any
tax whatever in this State, and not being subject to pay a tax,
that equity has jurisdiction to restrain and should enjoin its
payment.
If the proposition be true that this property is so situated
that it was not subject to be assessed for taxation under our
revenue laws, then a court of equity may afford relief. The
first clause of the first section of that law provides that all
real and personal property in this State shall be assessed and
taxed. The only question then is, was this property in this
State, within the meaning of this section, when it was assessed
for taxation? This provision of the law does not contem-
plate the assessment of personal property that is passing
through, or is in the State for temporary purposes only. It
could not be held that the goods and merchandize of a citizen
of Iowa, passing from an Eastern city, by rail, through this
State to his home in Iowa, on the first day of May in any
year, could be legally assessed for taxation. Although in the
State on the day the assessor is required to list all personal
property for taxation, and coming within the letter of the
statute, it would clearly be contrary to its spirit. The inten-
tion of the law-makers was only to subject property to taxa-
tion that is more permanently in the State at the time when
required to be listed. But the extent of that permanency it
would, under many circumstances, be difficult to define. It
is, however, impracticable to lay down any rule that shall
govern in all cases. Its ownership, and the uses for which it
is designed, and the circumstances of its being in the State,
are so various that it can not be embraced in any general
rule.
Whilst the situs of personal property is, under many cir-
cumstances, considered by the law as being that of its owner,
such is not the uniform rule. Under some circumstances it
has for some purposes a different situs from that of the
owner, and such is the case in regard to taxation. Where
110 Irvin v. N. O., St. L. & C. R. E. Co. [Nov. T.
Opinion of the Court.
personal property is permanently located at a particular place,
it is liable to be listed there.
The boat was registered in Cairo, and when not in use it
laid up in that place. The hands who operated the boat re-
sided there, and the company had its business office in the
city, — thus incontestibly showing that its home port was
Cairo. Against this there are the simple facts that as to the
corporation owning the half that was taxed, it was one of
several corporations chartered by the statutes of three other
States, but consolidated and acting as one company, and when
the boat was in use it ran to the opposite shore of the river,
in Kentucky, — one of the States granting a charter for the
companies forming the consolidated corporation. These,
undoubtedly, are important facts in determining the situs of
this vessel for taxation.
We presume no one can or will question the fact that the
half of the vessel belonging to the Illinois Central Railroad
Company is liable to taxation in this State. That half is owned
by a corporation in this State, the vessel is registered in this
State, and when not in use it lies up in this State, and Cairo
would seem to be its home port, and it is permanently located
in this State. It is true, that when in use it plys between
Cairo and Filmore, but still Cairo is, unquestionably, the
home port of the vessel.
Both parties have referred to St. Louis v. The Ferry Com-
pany, 11 Wallace, U. S. R. 423, as sustaining their position.
In that case the ferry company was incorporated by the laws
of this State, but had its principal office in St. Louis, Mis-
souri. There its president and other chief officers resided;
there the usual business meetings were held, and the seal of
the company was kept there; the stockholders of the com-
pany mainly resided there, but some resided in Ohio, some in
New York and some elsewhere, but none in Illinois. The
company's minor officers, such as engineers and pilots on its
ferryboats, resTded in Illinois, opposite St. Louis, where its
real estate was situated, also its warehouse and some other
1879.] Irvin v. N. O., St. L. & C. E. R. Co. Ill
Opinion of the Court.
property. The ferryboats, when not in use, were laid up by
the Illinois shore, and were forbidden by ordinance to re-
main at the St. Louis wharf longer than ten minutes at a
time. On this state of facts the court held the boats of the
ferry company were not liable to be taxed in Missouri, but in
Illinois.
The court said, that in a qualified sense personal property
accompanies its owner wherever he goes, and he may deal with
it and dispose of it according to the law of his domicil. * *
But this doctrine is not allowed to stand in the way of the
taxing power in the locality where the property has its
actual situs and the requisite legislation exists. Such prop-
erty is, undoubtedly, liable to taxation there in all respects as
if the proprietor were a resident of the same locality. The
court further say: " The company has an office in Illinois.
Its minor officers, such as its engineers and pilots, lived in
Illinois, where its real estate, including a warehouse, was sit-
uated." That the " boats, when not in actual use, were laid
up at the Illinois shore." ■ * * # « Their relation to
the city was merely that of contact there as one of the ter-
mini of the transit across the river in the prosecution of their
business." " That the owner, in the eye of the law, was a citi-
zen of that State, and from the inherent law of its nature could
not emigrate or become a citizen elsewhere. As the boats
were laid up on the Illinois shore when not in use, and the
pilots and engineers who ran them lived there, that locality,
under the circumstances, must be taken as their home port.
They did not so abide within the city as to become incorpo-
rated with and form a part of its personal property. Hence,
they were beyond the jurisdiction of the authorities by whioh
the taxes were assessed, and the validity of the taxes can not
be maintained."
The court does not hold that the taxes are illegal because the
ferry company was organized under the laws of this State. On
the contrary it does say, that the rule that personal property
follows the situs of the owner is not allowed to stand in the
112 Ibvin v. N. O., St. L. & C. E. E. Co. [Nov. T.
Opinion of the Court.
way of the taxing power where the property has its actual
situs. Instead of saying that the property was taxable in this
State because the ferry company is a corporation in this State,
the court holds, that under the circumstances of the case the
boats were taxable in this State. As much stress is laid on
the fact that the minor officers resided in this State, that the
Illinois shore was the home port, and the company had real
estate and a warehouse thereon on the Illinois side of the
river, if not more, than on the situs of the company.
In the case at bar, the company had an office in Cairo, and
their boats laid up there when not in use; the boat was regis-
tered there, and plied between that and the opposite shore of
the river, and the officers operating the boat resided there,
and it is evident that this was the home port of the vessel.
The circumstances are as strong to require the company to
pay a tax on this property to this State as were the circum-
stances in that case.
' In Boroughs on Taxation, sec. 46, it is laid down that the
home port, or the port at which a vessel is required to be reg-
istered, is the domicil of the vessel.
In the case of Hays v. The Pacific Mail Steamship Company,
17 How. 596, where vessels were owned by a corporation in
New York, and the vessels were registered in New York, it
was held, that was their home port, and they were liable to
taxation at their home port, and not in California, where they
were engaged in the transportation of passengers on the
Pacific coast, and ran into and out of California in business;
and the case of The People v. The Pacific Mail Steamship Com-
pany, 58 N. Y. 242, announces the same rule. It is there
said, the situs of sea-going vessels, for the purposes of taxa-
tion, is the port of registration, under the act of Congress,
and that is the home port.
The case of Battle v. Mobile, 9 Ala. N. S. 234, holds that
where a boat was registered in Mobile as a coasting vessel, and
was plying on the waters of the Alabama river, it was liable
1879.] Irvin v. N. O., St. L. & C. E. E. Co. 113
Opinion of the Court. /
to be assessed and taxed in the city of Mobile, although the
owner resided in Pennsylvania.
In the case of Hays v. Pacific Mail Steamship Company,
supra, the court said: "We are satisfied that the State of
California had no jurisdiction over the vessels for the pur-
poses of taxation; they were not properly abiding within the
limits, so as to become incorporated with other personal prop-
erty of the State; they were there but temporarily, engaged
in lawful trade and commerce, with their situs at the home
port where the vessel belonged, and where the owners were
liable to be taxed."
One of the principal, if not controling, facts to be consid-
ered seems to be the home port of the vessel — the place where
it belongs, so as to become incorporated with the personal
property permanently located in the State. This seems to be
of more importance than the mere ownership, and hence the
situs for the purposes of taxation.
We are clearly of opinion that Cairo was the home port of
this vessel, and that was its situs for taxation, and it was prop-
erly assessed in this State for taxation ; and the court erred in
enjoining this portion of the tax. The decree, to that extent,
is reversed.
We then come to the question of the tax assessed on the
value of the " car-hoist" and the " third rail," as they are
termed. It is claimed that they belong to the Illinois Central
Eailroad Company, and the complainant is not liable to pay
taxes on them, or one-half of them. The evidence shows
the "car-hoist" and third rail were laid by the Illinois
Central Eailroad Company on its own lands and at its
own expense. As we understand it, from the very nature
of the structure it is permanent in its character, and is
attached to and has become a part of the soil to which it is
connected; and if so, on what principle can another company
be required to pay taxes on it? — not because it pays a stipu-
lated sum for the privilege of using it jointly with the owner,
for the promotion of the business of both. The Mississippi
8—94 III.
114 Irvin v. N. O., St. L. & C. R. R. Co. [Nov. T.
Opinion of the Court.
Central is not liable as owner, lessee or as being in possession
of this property. It is owned by the Illinois Central, and is
used by both companies; for the privilege of so using it, the
Mississippi Central pays a specified consideration. As well
say, where a person who owns the soil on which a house stands,
permits another to occupy it jointly with him, and for which
he receives a consideration, that the person thus permitted to
occupy it should be assessed for one-half of the taxes 'on
the lot and house. No one, we apprehend, would contend
that it could be legally done; and we may ask, in what, if
anything, a distinction, in principle, exists between the sup-
posed case and that at bar? We are unable to perceive any
that can be well founded. We are, therefore, of opinion
complainant was no more liable to the tax imposed against it
on the "car-hoist" or third rail on the track of the Illinois
Central railroad than is one man liable to pay the taxes on
another's land. In such a case, there is no legal authority for
doing so, unless he has a taxable interest in the same ; and
when done without authority, a court of equity will restrain
its collection from the person against whom it is illegally
assessed, as being levied against him without warrant of law.
The court below, therefore, did right in enjoining this tax,
and the decree of the Appellate Court, to that extent, is
affirmed, but it is reversed as to the taxes levied on the boat.
The injunction was improperly granted, and, to that extent,
the decree of the Appellate Court must be reversed and the
cause remanded.
Decree reversed in part, and in part affirmed.
1879.] Stumpf v. Osterhage. 115
Opinion of the Court. **
John Stumpf
v.
Charles Osterhage.
1. Ejectment — right of recovery. In ejectment the plaintiff must rely on
the strength of his own title, and must show in himself a legal title to all the
land he recovers, or the judgment can not be sustained.
2. Recitals in deed— upon whom binding. The recitals in a recorded deed or
bond will bind no one except the grantors and those claiming under them by-
grant subsequent to the recitals.
3. Limitation — under act of 1835. Proof of possession of land for more than
seven years under a title deducible of record from a person authorized to sell
by the order of a court, without proof of residence upon the land for that
period, does not establish a bar to an action of ejectment.
4. Boundary — deed as evidence. In ejectment, where there is a dispute as to
the boundary of a tract of land, contained in a grant of four hundred acres, a prior
deed embracing a part of the land involved is admissible in evidence, whether
the defendant is able to connect himself with such deed or not, as tending to
shed some light upon the question of the location of the grantee's boundary
line from the points named in the deed, and fix the land conveyed by subse-
quent deeds of other parties, and as explaining what part of a larger tract
was conveyed by a prior owner to one person, and what part to another, under
whom the defendant claims.
Appeal from the Circuit Court of Monroe county; the
Hon. Amos Watts, Judge, presiding.
Messrs. Talbotts, for the appellant.
Mr. Wm. Winkelman, for the appellee.
Mr. Justice Dickey delivered the opinion of the Court :
The judgment in this case can not be sustained. In eject-
ment the plaintiff must rest on the strength of his own title,
and must show a legal title to all the land he recovers.
The land embraced in the verdict and judgment is a part
of an old grant or confirmation to Leonard Harnish, by the
United States, about the end of the last century, now lying
in Monroe county. The whole tract is described in the
116 Stumpf v. Osterhage. [jSTov. T.
Opinion of the Court.
government confirmation as survey 410, and as containing
400 acres; and by the government survey it was put down as
53.37^ chains wide from east to west, and as 75 chains long
from north to south. A branch or creek runs in a westerly
course through the land (survey 410), entering its eastern
boundary about 24 chains south of the north-east corner, and
leaving the tract on its western boundary about 10.18 chains
south of the north-west corner of the survey. This creek,
after entering the land at its crossing on the eastern boundary,
bears a little north of west for about 13 chains, and there
turns sharply to the south and runs a little west of south a
distance of about 8 chains. Its general course from this
point is nearly west for about 7 chains, and from this point
the creek meanders to the north-west until it reaches the
western boundary of the old survey. The land claimed in
the declaration lies south of this creek.
There are two counts in the declaration. The northern
boundary of the land claimed in the first count begins on the
eastern boundary of survey 410 at a point at least 5 chains
south of the intersection of that boundary by the branch or
creek, and runs nearly due west some 26.70 chains before it in-
tersects the branch, and thence follows down the branch to the
western boundary of the whole tract. The southern boundary
of the tract claimed in the first count of the declaration is a
line running nearly due east from a point in the western
boundary of the survey 410 south of the intersection of the
creek with that boundary, and 35.72 chains distant from the
intersection; and the southern boundary of the land claimed
in the second count is parallel with the south line as claimed
in the first count, but crosses the whole original tract at a
point 10 chains north of the south boundary in the first count.
Plaintiff derives title, if at all, from and under William R.
Walter, and through his deed to Wilson & Cahour (not
recorded.) The land granted in that deed is described therein
precisely as is the land claimed in the first count, and does
not embrace that part of the land in the second count which
1879.] Stumpf v. Osterhage. 117
Opinion of the Court. >
lies between the creek and the east 26.70 chains of the north
boundary in the deed. From the plats this includes in the
verdict and judgment some ten acres of land to which ap-
pellee shows no title whatever.
For this error the judgment must be reversed and the
cause remanded.
It may not be amiss to notice some other questions pre-
sented in the case. We find no evidence showing whether
Mrs. Kate Clover, wife of Jacob Clover, formerly Kate
Harnish, or Harness, be now living or dead, nor, if dead,
anything showing the time of her death ; — whether she ever
disposed of her interest in survey 410 by will, deed, or other-
wise ; nor, in fact, any distinct proof showing who were her
heirs at law.
The endorsement in the margin of the record of the deed
of Sally Harness, purporting to be "an acknowledgment" by
her and her husband, "that the deed is of no effect," does
not in any manner affect the validity of the deed. In fact, if
the signatures be assumed to be genuine its recitals can bind
no one save themselves, and those claiming under them by
grant subsequent to the recitals.
Appellant claims a bar to this action under section 4 of
chapter 83, Rev. Stat. (p. 674); but while the proof shows
more than seven years possession under a title deducible of
record, from a person authorized to sell by the order of a
court, it fails to show that such possession was by actual resi-
dence. It does not appear whether appellant resided on the
land he bought from Schenerman or not.
Appellant also claims a defence under the sixth section of
the same act. It is unnecessary to pass now on this claim, as
the real facts relating to the payment of taxes probably will
be made more apparent at another trial. The tax receipts of
both parties, if produced, will probably show more definitely
the land on which payments of taxes were, in fact, made;
and evidence can probably be found, in the assessor's and col-
lector's books, not produced on this trial. Appellant, mi-
118 Stumpf v. Osterhage. [Nov. T.
Opinion of the Court.
doubtedly, ought to be allowed to read in evidence the deed
of Joseph Lawson to Ann Edwards, of August 2d, 1847,
conveying what on the plats in evidence is marked as "Hobbs'
piece." This deed embraced part of the laud embraced in
the verdict. Whether appellant was or was not able to follow
this deed with mesne conveyances to himself, the deed would
have shed some light upon the question of the location of
Lawson's south line, as a "point of rock on top of bluff"
is a point in the line named, — and appellant may have been
able to identify that point by proof, or may have been able to
show what ground was taken possession of under the deed,
and thus have shown what Lawson claimed as the south
boundary of his 166 acres. Again, it would have explained
what part of the 166 acres was afterwards conveyed by Pat-
terson & Peterson to Bollman as 15 acres by quitclaim, and
what part thereof was conveyed as 151 acres by them to
Bollman by warranty deed; and hence, what 151 acres of
the 166 was conveyed by Bollman to Schenerman and by
Schenerman to appellant, and hence would have tended to
show on what land appellant had paid taxes.
Appellant insists that he has a good defence upon twenty
years' consecutive possession by himself and his grantors. The
proofs as to how long Jacob Clover occupied the land, and
whether John Clover was in actual possession and for what
time, and as to when Lawson took possession, is not made as
definite as it seems probable it might be; and we deem it
unnecessary now to pass upon that question.
Appellee contends that the testimony of Eli Glover shows
that the creek was the line recognized at an early day as the
boundary between the land of Sally and that of Kate, and
hence appellant can claim nothing south of the creek. There
is much in the record tending to show that the creek was not
the line all the way across the survey. The survey actually
contains more than 400 acres, and yet there are but about 116
acres north of the creek. This would be one-third of only 348
acres. It is true this may have been regarded as the more val-
1879.] Stumpf v. Osterhage. 119
Opinion of the Court. ^
uable land; but if so, proof on that subject ought to be pro-
duced, if possible. It may be that the creek was the line
agreed on for part of the way. The proof tends to show
that this land was heavily wooded, and there may have been
paths or roads crossing the creek at the part where it was
adopted as the line, and other parts of the creek may have
been inaccessible on account of the underbrush. On another
trial witnesses may be found who can give more light on
these matters.
It would be interesting to learn from whom the parties
now claiming title to the southern portion of this old survey,
derive their survey. It might make clear the question
whether Jacob Clover was not, at one time, recognized by all
concerned as the owner of the entire title to the whole sur-
vey. If that were shown, the alleged partition among the
Harnish sisters is of no significance. It might possibly show
what became of that part of the title which seems to have
been, at one time, in Henry Clover. With the exception of
an undivided one-third in the 139 acres conveyed to Walton,
he does not appear to have parted with any part of his title,
wrhich (if his mother be not living) would seem to have been
one-third in the whole property.
The recital of a bond (said to have been given on Decem-
ber 11, 1811, by Jacob Clover to the ancestor of W. E. Wal-
ton) contained in the deed of April 18, 1837, made by the
sons of Jacob Clover to Walton, is not evidence tending to
prove that such a bond was in fact made, except as against
parties claiming under some one of these sons through some
grant or purchase made after the date of that deed, and
hence is not evidence as against appellant.
The judgment must be reversed, and the cause remanded for
a new trial.
Judgment reversed.
120 Dunne v. The People. [Nov. T.
Syllabus.
Peter J. Dunne
v.
The People of the State of Illinois.
1. Juror — exemption of active militia. The provision of the act of May 28,
1879, entitled "An act to provide for the organization of the State militia,"
etc., which exempts an active member of a company of the State militia from
serving upon juries, is a valid and constitutional law.
2. State militia — State and Federal power — and herein, of their concurrent
powers. The power in Congress to provide for organizing, arming, equipping
and disciplining the militia, is not exclusive. It is merely an affirmative
power, and not incompatible with the existence of a like power in the States;
and hence the States have concurrent power of legislation not inconsistent
with that of Congress. It is only repugnant and interfering State legislation
that must give way to the paramount laws of Congress constitutionally enacted.
3. The Federal constitution does not confer on Congress unlimited power
over the militia of the several States, but it is restricted to specific objects
enumerated, and for all other purposes the militia of the States remains sub-
ject to State legislation. The power of a State over its militia is not derived
from the constitution of the United States. It is a power the States had before
the adoption of that instrument, and its exercise by the States not being
prohibited by it, it still remains with the States, subject only to the paramount
authority of acts of Congress enacted in pursuance of the constitution.
4. The reservation to the States of the power of appointing the officers of the
militia, and authority to train the militia according to the discipline pre-
scribed by Congress, does not place any restriction upon the States in respect
of its power of concurrent legislation concerning its militia. The exception
from a given power can not be considered as an enumeration of all the powers
which belong to the States over the militia.
5. There is no question of the power of a State to organize such portion of
its militia as may be deemed necessary in the execution of its laws, and to aid
in maintaining domestic tranquillity within its borders. The power given to
the chief executive of the State to call out the militia to execute the laws,
etc., by implication recognizes the right to organize a State militia.
6. By any fair construction of the constitution of the United States, a
law to organize the militia of a State for its own purposes, not inconsistent
with the laws of Congress on that subject, is valid. In right of its sovereignty
a State may employ its militia to preserve order within its borders, where the
ordinary local officers are unable, on account of the magnitude of the dis-
turbance, or any sudden uprising, to accomplish the result.
1879.] Dunne v. The People. 121
Syllabus.
7. The organization of the active militia of the State is not in violation of
that clause of the Federal constitution which withholds from the States the
right to keep troops in time of peace. Such a militia is not embraced in the
term "troops," as used in the constitution. The State militia is simply a
domestic force, as distinguished from regular troops, and is only liable to be
called into service when the exigencies of the State make it necessary.
8. It is a matter dependent on the wisdom of Congress whether it will
provide for arming and disciplining the entire body of the militia of the United
States. The citizen is not entitled, under any law, State or Federal, to de-
mand, as a matter of right, that arms shall be placed in his hands.
9. It is for the legislature to determine of what number the active militia
of the State shall consist, depending on the exigency that makes such organ-
ization necessary.
10. Same — validity of act of 1879 — under constitution of 1870, and in respect to
Federal laws. The act of the General Assembly of May 28, 1879, providing for
the organization of a State militia, etc., is not in conflict with any provision
of the present constitution of this State.
11. Nor is that act repugnant to the national law relating to the militia,
either in its spirit, intent or effect. In denning what persons shall constitute
the State militia, it is in strict accordance with the act of Congress of 1792.
12. The provision in the State militia law making it the duty of the Gov-
ernor, as commander-in-chief, by proclamation, to require the enrollment of
the entire militia of the State, or such portion thereof as shall be necessary,
in the opinion of the President of the United States, and to appoint enrolling
officers, and to make all necessary orders to aid in the organization of the
militia, is not in contravention of any of the provisions of the act of Con-
gress of 1792, or any other act of Congress in relation to the organization of
the militia, but is rather in aid of such laws.
13. The organization of a State militia, when not in actual sei'vice, but for
the purpose of training under the act of Congress, into divisions, brigades,
regiments, battalions and companies, shall be done as the State legislature
may direct. When called into the national service, it is made the duty of the
executive to organize the militia as the act of Congress directs.
14. The adoption of the discipline, exercises and equipment required in
the regular army of the United States, in the State system, will not render the
law invalid.
15. The fact that the men composing the active militia of the State are re-
quired to take an oath to obey the " orders of the commander-in-chief, and
such other officers as may be placed over them," is no just ground of objection
to the law. The obedience to the orders of the Governor is when they are in
the service of the State, and not in the actual service of the United States.
122 Dunne v. The People. [Nov. T.
Syllabus.
16. The provision of the Militia Code of the State, which provides that no
military company shall leave the State with arms and equipments without the
consent of the commander-in-chief, was intended to apply to the militia when
not in the actual service of the United States, and is a valid law.
17. The provision of the militia law making it unlawful for any body of men
other than the regularly organized volunteer militia of this State and of troops
of the United States, with an exception in favor of students in educational
institutions where military science is taught, to associate themselves together
as a military company or organization, or to drill or parade with arms, in any
city or town of this State, without the license of the Governor, is not inconsis-
tent with any paramount law of the United States, and is a binding law.
18. Same — the act not defeated if some provisions are invalid. If the militia
law, in some minor matters of detail in the organization of the active militia,
or in some of its regulations, should not be found in harmony with the acts of
Congress, that would not invalidate the whole act. The most that can be said
is, that they should yield to the paramount laws of the United States.
19. If the general provisions in sections 4, 5 and 6, of article 11 of the
Militia act, were repugnant to the laws of the United States respecting the
militia, they might be eliminated from the statute without affecting in the
slightest degree the efficient organization of the active militia; but they are
not inconsistent with or repugnant to any acts of Congress on the subject.
20. Non-essential differences in the regulations as to the militia not in the
actual service of the United States, contained in a State law, from those in acts
of Congress, will not render the former invalid.
21. Police power of the State — generally. In matters pertaining to the
internal peace and well-being of the State, its police powers are plenary and
inalienable. It is a power co-extensive with self-protection. Everything
necessary for the protection, safety and best interests of the people of the
State, may be done under this power. Persons and property may be subjected
to all reasonable restraints and burdens for the common good.
22. Where mere property interests are involved, this power, like other
powers of government, is subject to constitutional limitations ; but when the
internal peace and health of the people are concerned, the only limitations
imposed are, that such "regulations must have reference to the comfort, safety
and welfare of society." What will endanger the public security must, as a
geueral rule, be left to the wisdom of the legislative department.
23.. Same — prohibiting parade, etc., of armed bodies of men. It is a matter
within the regulation and subject to the police power of the State to determine
whether bodies of men, with military organizations or otherwise, under no
discipline or command by the United States or of this State, shall be permit-
ted to parade with arms in populous communities and in public places.
1879.] Dunne v. The People. 123
Opinion of the Court.
Writ of Error to the Criminal Court of Cook county;
the Hon. William H. Barnum, Judge, presiding.
Mr. Charles A. Gregory, for the plaintiff in error*
Mr. Lyman Trumbull, Mr. Harry Reubens, and Mr.
Wolford N. Low, for the defendants in error.
Mr. Justice Scott delivered the opinion of the Court:
Peter J. Dunne, having been summoned to serve as a jury-
man in the Criminal Court of Cook county, at the September
term, 1879, it was made to appear he was a citizen of Illinois,
twenty-two years of age, and that he was an enlisted, active
member of the "Illinois National Guard," in Company G,
First Regiment, a military company organized and existing
under a statute of this State, approved May 28, 1879, and in
force July 1, of the same year, entitled "An act to provide for
the organization of the State militia, and entitled the Military
Code of Illinois," and because of the facts appearing he
claimed, under the provisions of the act, which so expressly
declares, he was exempt from jury duty, but the court deemed
the cause assigned insufficient in law to excuse the juror from
service, and notwithstanding the decision of the court he
refused to serve in the capacity of a juror, and on account of
his contumacy he was fined in the sum of $50.
Acting on the suggestion of counsel, that it is the desire of
both parties to obtain the opinion of this court as to the
validity of the act of the General Assembly "to provide for
the organization of the State militia," approved May 28, 1879,
all preliminary considerations as to the manner in which the
case comes before the court, and the invalidity of the act
under the constitution of the State, will be waived with a
view to proceed directly to the question whether the act, or
such parts of it as provide for the organization of the active
militia of the State, known as the "Illinois National Guard,"
is void by reason of its repugnancy to the constitution of the
124 Dunne v. The People. [Nov. T.
Opinion of the Court.
United States, and to the laws passed in pursuance thereof.
It may be remarked, although no point is made that the act
in question contravenes any provision of our State constitu-
tion, it seems to be in entire harmony with that instrument.
Article 12, section 1, constitution of 1870, is, " The militia of
the State of Illinois shall consist of all able bodied male
persons resident in the State between the ages of eighteen
and forty-five, except such persons as now are or hereafter
may be exempted by the laws of the United States or of this
State." And section 2 of the same article is, "The General
Assembly, in providing for the organization, equipment and
discipline of the militia, shall conform as nearly as practicable
to the regulations for the government of the armies of the
United States." On examination it will be seen the act of the
General Assembly under consideration conforms exactly with
these constitutional requirements, as will be made to appear
more fully in the sequel of this discussion.
If, therefore, this act of the legislature is void, it must be
for one of two reasons assigned : 1. Because of its repug-
nancy to the constitution of the United States; or, 2. Because
it is inconsistent with and repugnant to the acts of Congress
on the same subject, passed in pursuance with authority con-
ferred by the Federal constitution. The importance of the
questions involved has induced the most careful consideration,
but it will be our purpose to avoid all unnecessary discussion
and state our views as briefly as practicable.
The first proposition submitted against the validity of the
act known as the "Military Code," is that the power of or-
ganizing, arming and disciplining the militia, being confined
by the constitution of the United States to Congress, when
Congress has acted upon the subject and passed a law to carry
into effect the constitutional provision, such action excludes
the power of legislation by the State on the same subject.
This is not, in our judgment, an accurate — certainly not a
full expression of the law. Two things must be assumed to
maintain this proposition: 1. That the constitutional pro-
1879.] Dunne v. The People. 125
Opinion of the Court.
vision in respect to the militia is of that character it can only
be exercised by Congress, and that any State legislation would
of necessity be inconsistent with Federal legislation under
that article of the constitution. 2. That the constitution
itself places a restriction, either directly or by implication,
upon all State legislation in respect to the militia. Neither
assumption is warranted by any fair construction of the con-
stitution of the United States, nor by contemporaneous ex-
planations by writers whose authority is to be respected, or
by any subsequent judicial determinations with which we are
familiar.
Article 1, section 8} division 15, confers power on Con-
gress "to provide for organizing, arming and disciplining
the militia, and for governing such part of them as may be
employed in the service of the United States, reserving to the
States respectively the appointment of the officers, and the
authority of training the militia according to the discipline
prescribed by Congress."' Neither this clause nor any other
of the constitution inhibits in express terms State legisla-
tion in regard to the militia. Our understanding is, it is
a matter upon which there may be concurrent legislation by
the States and Congress. No doubt it is true that some
powers granted to Congress are exclusive, and exclude by im-
plication all State legislation in regard to the subject of such
powers. It is not true, however, that all powers granted to
Congress are exclusive, unless where concurrent authority is
reserved to the States. Examples of concurrent authority
readily suggest themselves. . Congress has power, under the
constitution, " to lay and collect taxes, duties, imposts and
excises/' but it has never been supposed that grant of power
was a restriction upon the States "to lay and collect taxes"
for State purposes. Such a construction would destroy all
State governments by taking from them the means of main-
taining order or protecting life or property within their juris-
dictions. Other examples might be mentioned, but this is
sufficient for our present purpose.
126 Dunne v. The People. [Nov. T.
Opinion of the Court.
It might be well in this connection to call to mind that
"powers not delegated to the United States by the constitu-
tion, nor prohibited by it to the States, are reserved to the
States respectively, or to the people." The power of State
governments to legislate concerning the militia, existed and
was exercised before the adoption of the constitution of the
United States, and as its exercise was not prohibited by that
instrument, it is understood to remain with the States, sub-
ject only to the paramount authority of acts of Congress
enacted in pursuance of the constitution of the United States.
The section of the constitution cited does not confer on Con-
gress unlimited power over the militia of the States. It is
restricted to specific objects enumerated, and for all other
purposes the militia remain as before the formation of the
constitution, subject to -State authorities. Nor is there any
warrant for the proposition that the authority a State may
exercise over its own militia is derived from the constitution
of the United States. The States always assumed to control
their militia, and, except so far as they have conferred upon
the national government exclusive or concurrent authority,
the States retain the residue of authority over the militia
they previously had and exercised. And no reason exists
why a State may not control its own militia within constitu-
tional limitations. Its exercise by the States is simply a
means of self-protection.
The States are forbidden to keep "troops" in time of peace,
and of what avail is the militia to maintain order and to
enforce the laws in the States unless it is organized. "A well-
regulated militia" is declared to be "necessary to the security
of a free State." The militia is the dormant force upon
which both the National and State governments rely "to exe-
cute the laws, * * * suppress insurrections and repel
invasions." It would seem to be indispensable there should
be concurrent control over the militia in both governments
within the limitations imposed by the constitution. Accord-
ingly, it is laid down by text writers and courts that the
1879.] Dunne v. The People. 127
Opinion of the Court. ^
power given to Congress to provide for organizing, arming
and disciplining the militia is not exclusive. It is defined to
be merely an affirmative power, and not incompatible with
the existence of a like power in the States ; and hence, the
conclusion is, the power of concurrent legislation over the
militia exists in the several States with the national govern-
ment.
The case of Houston v. Moore, 5 Wheaton, 1, is an au-
thority for this construction of the constitution. The ques-
tion before the court in that case, as concisely stated by Kent,
in his Commentaries, in discussing the power of Congress
over the militia, was, whether " it was competent for a court-
martial, deriving its jurisdiction under State authority, to try
and punish militiamen, drafted, detached and called for by
the President into the service of the United States, who re-
fused and neglected to obey the call ;v or, as stated by Story,
J., the only question cognizable by the court on the record
before them arose on the refusal of the " State Court of
Common Pleas to instruct the jury that the first, second and
third paragraphs of the 21st section of the statute of Penn-
sylvania of the 28th of March, 1814, as far as they related to
the militia called into the service of the United States under
the laws of Congress, and who failed to obey the orders of
the President of the United States, are contrary to the consti-
tution of the United States and the laws of Congress made
in pursuance thereof, and are, therefore, null and void. The
court instructed the jury that those paragraphs were not con-
trary to the constitution or laws of the United States, and
were, therefore, not null and void." Notwithstanding there
was a law of Congress that provided for the organization of
courts-martial for the trial of militia, drafted, detached, called
forth into the service of the United States, to be conducted as
courts-martial for the trial of delinquents in the army, the
court decided that the militia, when called into the service of
the United States, were not to be considered in that service or
in the character of national militia, until they were mustered at
128 ' Dunne v. The People. [Nov. T.
Opinion of the Court.
the place of rendezvous; and until then the State retained a
right, concurrent with the government of the United States,
to punish their delinquency. The statute that formed the
ground of controversy in the State court enacted that non-
commissioned officers and privates in the militia who should
neglect or refuse to serve when called into the actual service
of the United States, in pursuance of an order or requisition
of the President, should be liable to certain penalties, defined
in the act of Congress of 1795. The judges concurring in
the decision of the court did not concur in all the reasoning
by which the conclusion was reached, and they seem to have
coincided only in the decision the State law was valid.
Washington, J., delivered the principal opinion. Johnson,
J., gave a concurring opinion, and Story, J., delivered a dis-
senting opinion, in which another member of the court con-
curred.
Although neither opinion had the sanction of a majority
of the court as to all it contains, yet on many subjects
discussed the judges all agreed, and as the several opinions
contain the views of these eminent legists on these im-
portant questions, they are entitled to the highest consid-
eration. After stating his conclusion that the offence of
disobedience to the President's call upon the militia is not
exclusively cognizable before courts-martial of the United
States, Washington, J., adds : " It follows then, as I con-
ceive, that jurisdiction over this offence remains to be concur-
rently exercised by the National and State courts-martial,
since it is authorized by the laws of the State and not prohibited
by those of the United States.'' There being no repugnance
in the State law with the law of Congress, in his opinion, the
conclusion he reached, after an extended examination of the
case, was, the State court-martial had a concurrent jurisdiction
with the tribunal pointed out by the act of Congress to try a
militiaman who had disobeyed the call of the President, and
to enforce the laws of Congress against such delinquent.
1879.] Dunne v. The People. 129
Opinion of the Court.
Johnson, J., conceded fully that concurrent power of
legislation over the militia existed in the States with the
National government. Story, J., in the opinion he gave,
was even more pronounced in the expression of similar
views, and, in speaking of the power granted to Congress
by the constitution to call forth the militia to execute the
laws of the Union, and to organize, arm and discipline
the same, said, "It is almost too plain for argument, that the
power here granted to Congress over the militia is of a lim-
ited nature, and confined to the objects specified in these
clauses, and that in all other respects and for all other pur-
poses the militia are subject to the control and government
of the State authorities." All the judges concurred, as we
understand their opinions, in the proposition that, when Con-
gress has once acted within the limits of the power granted
in the constitution, its laws for organizing, arming and dis-
ciplining the militia are supreme, and all interfering regula-
tions adopted by the States are thenceforth suspended, and for
the same reasons all repugnant legislation is unconstitutional.
That principle applies only where Congress has assumed con-
trol of the militia under granted powers, and does not militate
against the construction uniformly given to the constitution
by Kent and other writers, " that a State may organize and
discipline its own militia, in the absence of or subordinate to
the regulations of Congress." It is only repugnant and inter-
fering State legislation that must give way to the paramount
laws of Congress constitutionally enacted. The cases that sup-
port this doctrine are numerous and of the highest authority.
Houston v. Moore, 5 Wheaton, 1 ; Sturgis v. Growenshield, 4
id. *122; Livingston v. Vanlngen, 9 Johns. 507; Houston v.
Moore, 3 Ser. & Rawle, 170 * ; Opinion of the Justices, 14 Gray,
614; Gilman v. Philadelphia, 3 Wall. 713; United States v.
Cruikshanh, 92 U. S. R. 542; Blanehard v. Russell, 13 Mass.
1; Caldee v. Bull, 3 Dallas, 386; 1 Kent's Com. 265, 389.
No case has been cited that holds a contrary doctrine, except
Golden v. Prince, 3 Wash. C. C. R. 313, and what was said
9—94 III.
130 Dunne v. The People. [Nov. T.
Opinion of the Court.
by the same judge in Houston v. Moore, supra. We are not
aware that the opposite views expressed by Judge Washing-
ton in either of those cases have ever been followed by any
court. In Houston v. Moore, Johnson, J., expressly contro-
verts the proposition, "that within the scope Congress may
legislate, the States may not legislate/' and speaks of it as
an exploded doctrine.
Nor do we think the reservation of the power "to the
States, respectively, the appointment of the officers and the
authority to train the militia according to the discipline pre-
scribed by Congress/' as suggested by counsel, puts any re-
striction upon the States in respect to the concurrent legislation
concerning the militia. Mr. Justice Story, in speaking of
that clause of the constitution, says " that reservation consti-
tutes an exception merely from the power given to Congress
to provide for organizing, arming and disciplining the militia,
and is a limitation upon the authority which would otherwise
have devolved upon it as to the appointment of officers."
Obviously, that is all that clause of the constitution does
mean, and we adopt as our own view what that able jurist
added: "the exception from a given power can not, upon any
fair reasoning, be considered as an enumeration of all the
powers which belong to the States over the militia."
But the principal argument is made on the other branch of
the case, viz: that the act of the General Assembly "to pro-
vide for the organization of the State militia" is repugnant
to the laws of Congress! on the same subject constitutionally
enacted, and is for that reason null and void. Wherein the
"spirit, intent and effect of the Illinois statute is in conflict
with the provisions of the act of Congress," as insisted on
the argument, is not apparent. Neither in the title of the
act nor in any of its provisions does it appear the object of
the State law is in conflict Avith the National law. The first
section declares, "that all able-bodied male citizens of this
State, between the ages of eighteen and forty-five years, except
such as are expressly exempted by the laws of the United
1879.] Dunne v. The People. 131
Opinion of the Court.
^
States, or are State or county officers, or on account of their
profession or employment are exempted by the commander-
in-chief, shall be subject to military duty and designated as
the ' Illinois State Militia.'" That is in exact conformity
with the act of Congress of 1792, and what more could the
legislature do? The contention of counsel is, that an act of
the State legislature to organize the militia, if in conformity
with the act of Congress on that subject, "is inoperative and
amounts to nothing/' and if it differs from the act of Con-
gress, it is " equally inoperative and void." Assuming that
to be a correct proposition, — and if it is confined to the organ-
ization and arming of the militia called to enter the active
service of the United States, it is the law, then the act of
the legislature is as comprehensive as it could constitutionally
be made, so far as it purports to declare who shall constitute
the whole body of the militia under the act of Congress.
The second section is a declaration of legislative intention
on the part of the State to co-operate with the general gov-
ernment in the matter of enrolling and organizing the entire
militia of the State when it shall become necessary "to exe-
cute the laws, suppress insurrection or repel invasions or quell
riots, or when a requisition shall be made by the President of
the United States for troops," and should be read in the light
of facts historically known to all. For many years after the
adoption of the Federal constitution, State laws provided for
enrolling and training of the militia in conformity with the
act of Congress. It was usual to have annual, and in some
States more frequent, days for drilling and training, and per-
sons liable to military duty were compelled to attend under
penalties; but for a third of a century or more there has been
very little effort, if any, made to organize and train the entire
body of the militia, and all State laws designed to effectuate
that purpose have either been repealed or suffered to fall into
disuse. It has become the settled conviction in the public
mind that militia training, as it was practiced in the States,
was of no practical utility. Besides that, it would be a most
132 Dunne v. The People. [Nov. T.
Opinion of the Court.
gigantic and expensive undertaking to enroll and supply the
entire militia of the United States with arms and ammunition,
as provided in the act of 1792. The annual appropriation of
the sum named in that act for that purpose is insignificant as
compared with the amount it would necessarily cost. As the
laws now are, it is improbable the entire militia of the States
will ever be enrolled or summoned for discipline under the
act of Congress, unless some great impending danger shall
make it necessary. When such an exigency does occur, this
statute makes it the duty of the Governor, as commander-in-
chief, by proclamation, to require the enrollment of the entire
militia of the State, or such portion thereof as shall be neces-
sary in the opinion of the President, and to appoint enrolling
officers and to make all orders necessary to aid in the organ-
ization of the militia. Such a law is not in contravention of
the act of 1792 or with any other act of Congress in relation
to the organization of the militia, but is rather in aid of all
such laws.
The remaining sections of the act, with the exception of
those contained in article 11, relate to organization, arming,
drilling and maintaining the " active militia" of the State.
The designation " Illinois National Guard," applied to the
active militia, is a matter of no consequence, and the act will
be construed as though it did not contain those words. That
a State may organize such portions of its militia as may be
deemed necessary in the execution of its laws and to aid in
maintaining domestic tranquillity within its borders, is a pro-
position so nearly self-evident that it need not be elaborated
at any great length. " A well regulated militia being neces-
sary to the security of a free State," the States, by an amend-
ment to the constitution, have imposed a restriction that
Congress shall not infringe the right of the "people to keep
and bear arms." The chief executive officer of the State is
given power by the constitution to call out the militia " to
execute the laws, suppress insurrection and repel invasion."
This would be a mere barren grant of power unless the State
1879.] Dunne v. The People. 133
Opinion of the Court. „
had power to organize its own militia for its own purposes.
Unorganized, the militia would be of no practical aid to the
executive in maintaining order and in protecting life and
property within the limits of the State. These are duties
that devolve on the State, and unless these rights are secured
to the citizen, of what worth is the State government? Fail-
ing in this respect it would fail in its chief purpose. But
what reason is there why a State may not organize its own
militia for its own purposes? As we have seen, the State has
the power of concurrent legislation with the national govern-
ment over the militia, when not in the actual service of the
United States, within limits quite accurately defined in law as
well as in the decisions of courts, both State and Federal.
Certainly Congress has not exclusive jurisdiction over the
militia not actually employed in its service. Congress may
provide for "organizing, arming and disciplining" the militia,
but the appointment of officers and the authority to train the
militia according to the discipline prescribed by Congress is
reserved to the States. There can, therefore, be no efficient
organization of the militia when not called into the service of
the Union, without the co-operative aid of the States. Con-
gress may not deem it necessary to exercise all the authority
with which it is clothed by the constitution over the militia.
Historically we know there has been no efficient organization
of the militia in this State within the last thirty or forty
years.
Mr. Story, in the opinion he gave in Houston v. Moore,
said: "It would certainly seem reasonable that in the
absence of all interfering provisions by Congress on the sub-
ject, the States should have the authority to organize, arm
and discipline their own militia. The general authority
retained by them over the militia would seem to draw
after it these necessary incidents." These were but an ex-
pression of his individual views, but anything written by
that eminent jurist on this subject is entitled to great consid-
eration, and as his views are an accurate expression of our
134 Dunne v. The People. [Nov. T.
Opinion of the Court.
understanding of the meaning of the constitution in this
respect, we adopt them as our own.
Judge Washington, in the opinion he gave in Houston v.
Moore, conceded that if Congress did not exercise the power
of providing for organizing, arming and disciplining the
militia it was competent for the States to do it.
Gibson, J., in the opinion he delivered in Houston v.
Moore, 3 Ser. & Rawle, 192*, said: "It can not be ques-
tioned but that the Federal and State governments have
concurrent authority over the militia when not in actual ser-
vice of the United States. Congress has power to organize
and arm, — a State may do the same. The government of the
Union may draw out the militia in any of the exigencies
mentioned in the constitution. A State may employ its own
militia for its own purposes."
In the opinion of the justices, 14 Gray, 614, after announc-
ing their conclusion that the commonwealth could not consti-
tutionally provide for the enrollment in the militia of any
person other than those enumerated. in the act of Congress of
1792, they said : "We do not intend by the foregoing opinion
to exclude the existence of a power in the State to provide by
law for arming and equipping other bodies of men for special
service of keeping guard and making defence under special
exigencies or otherwise, in any case not coming within the pro-
hibition of that clause of the constitution, art. 1, sec. 10, which
withholds from the State the power to keep troops." But, aside
from all authority, on any fair construction of the constitution,
a law to organize the militia of the State for its own purposes,
not inconsistent with any law of Congress on that subject, is
valid. In right of its sovereignty a State may employ its
militia to preserve order within its borders when the ordinary
local officers are unable, on account of the magnitude of
the disturbance, or of any sudden uprising, to accomplish
the result. Our conclusion, therefore, is, the General As-
sembly might enact the law in question, and that its general
scope and effect are not in antagonism with any act of Congress
1879.] Dunne v. The People. 135
Ooinion of the Court. *
on the same subject. Although, in minor matters of detail
in the organization of the active militia of the State, some
regulations might be found not in harmony with the act of
Congress, the utmost that could be said would be that they
would give way to the paramount laws of the United States.
That being the case we might here close the discussion, for if
the law in relation to the militia in the main is a constitutional
enactment, it would be a sufficient warrant for the conduct of
defendant, notwithstanding some minor regulations might be
invalid because in conflict with the laws of the United States.
But, as we have been urged by both parties to do so, we
will briefly state our views on some of the most important
provisions and regulations found in the State law which, it
is insisted, are in conflict with acts of Congress, and for that
reason render the whole act inoperative and void. We will be
assisted to a clearer understanding of the remaining questions
to be discussed, by keeping in mind a few propositions which
are so plain as to admit of no controversy :
1. The repugnancies alleged to exist in the Military Code
of the State with the acts of Congress, are all to be found in
those sections of the statute which relate to the organization
of the active militia when organized for State purposes, and
not to those sections which relate to the entire body of the
militia, nor to the militia when called into the service of the
United States.
2. The acts of Congress prescribe essentially different reg-
ulations for the organization of the militia when called into
actual service, and for the organization for training under
State authority. Many of the latter seem to be only directory,
while the former all appear to be mandatory.
3. When not in actual service, the act of 1792 provides,
" the militia of each State shall be arranged into divisions,
brigades, regiments, battalions and companies, as the legisla-
tures of the States may direct."
4. Non-essential differences in the regulations as to militia
136 Dunne v. The People. [Nov. T.
Opinion of the Court.
not in' actual service of the Union, contained in a State law,
with acts of Congress, will not render the former invalid.
It is no valid objection to this act of the legislature that it
does not require the entire militia of the State to be enrolled
as " active militia/7 Counsel do not wish to be understood
as claiming that no militia law is valid unless it provides that
each and every male inhabitant of the specified age should at
all times be armed and equipped and engaged in drilling and
maneuvering. But the argument made is, that the perform-
ance of military service in times of peace can not be legally
confined to a select corps consisting of a limited number of
volunteers to the exclusion of all other able-bodied male
residents of the State. The argument admits of several con-
clusive answers that may be shortly stated : 1. It is a matter
dependent on the wisdom of Congress whether it will provide
for arming and disciplining the entire body of the militia of
the United States. 2. The citizen is not entitled under any
law, State or Federal, to demand as a matter of right that
arms shall be placed in his hands ; and, 3. It is with the
legislative judgment of what number the active militia of the
State shall consist, depending on the exigency that makes
such organization necessary.
Numerous minor repugnancies, it is insisted, exist in the
State law with the acts of Congress, among which it is said
the State law fixes the numerical strength of a company at a
number different from the act of Congress. As we have seen,
the matter of organizing the militia when not in actual ser-
vice, but for the purpose of training, under the act of
Congress, into divisions, brigades, regiments, battalions and
companies, shall be done as the State legislatures may direct.
In respect to the number of men that shall compose a com-
pany, the language of the United States law is, "each com-
pany may consist of sixty-four privates;" but it is not made
imperative. The same may be said as to the omission in the
State law to provide for the appointment of a major-general.
1879.] Dunne v. The People. 137
Opinion of the Court.
Such an officer might find no appropriate position in the
active militia of the State. Upon the requisition of the
President upon the State executive for the militia for active
service in the Union, it is then made the duty of the executive
to organize the whole body of the militia, or such portion as
the President may direct, in conformity with the acts of Con-
gress. In that event, under the act of 1792, each company
shall have from sixty-four to eighty-two privates. In a com-
plete organization of the militia, such as the executive of the
State is authorized to make on the requisition of the Presi-
dent or otherwise, a major-general would be an appropriate
and necessary officer.
Another repugnancy is said to consist in " substituting the
organization of the regular army for the militia." Exactly
what counsel means or wishes us to understand by the use of
the word "organization," we may not comprehend fully. If
it is meant, what shall be the constitution of a regiment, bat-
talion or company under the State law, then it is not in con-
flict with the act of Congress of 1792, for it provides that
may be done as the "legislature of the State may direct."
But if the discipline and exercises to be enforced and ob-
served in the State militia organization is meant, then it may
be noted that the act of 1820 provides, "the system of disci-
pline and field exercise which is ordered to be observed in
the different corps of infantry, artillery and riflemen of the
regular army, shall also be observed in such corps, respect-
ively, of the militia." That provision may be applicable to
the militia only when called into the service of the United
States, but if it applies as well to the militia not in actual
service, then there is no repugnancy between the act of Con-
gress and the State law in this respect.
But there is another view that may be taken. The act of
Congress provides that the militia, when called to the actual
service of the United States, " shall be subject to the same
rules and articles of war as the regular troops of the United
States." The "active militia" of the State is simply a re-
138 Dunne v. The People. [Nov. T.
Opinion of the Court.
serve force, that the executive is authorized by the constitu-
tion to call to his aid in case of a sudden emergency, — "to
execute the laws, suppress insurrection and repel invasion," —
and it is most probable it was the design of the General
Assembly to make its "organization," "equipment" and
"discipline" the same as the militia when in the actual ser-
vice of the United States, as being the most effective. In
either view no such repugnance is perceived between State
and Federal legislation in this respect as would render the
former invalid.
An objection broader in its scope than either of those noted
is, that the active militia organized under the statute comes
within the prohibition of the second clause, section 10, art. 1
of the constitution of the United States, which withholds
from the States the power to keep "troops" in time of peace.
Our understanding is, the organization of the active militia
of the State conforms exactly to the definitions usually given
of militia. Lexicographers and others define militia, and so
the common understanding is, to be "a body of armed citi-
zens trained to military duty, who maybe called out in certain
cases, but may not be kept on service like standing armies, in
time of peace." That is the case as to the active militia of
this State. The men comprising it come from the body of
the militia, and when not engaged at stated periods in drill-
ing and other exercises, they return to their usual avocations,
as is usual with militia, and are subject to call when the pub-
lic exigencies demand it. Such an organization, no matter
by what name it may be designated, comes within no defini-
tion of "troops," as that word is used in the constitution.
The word "troops" conveys to the mind the idea of an
armed body of soldiers, whose sole occupation is war or ser-
vice, answering to the regular army. The organization of
the active militia of the State bears no likeness to such a
body of men. It is simply a domestic force as distinguished
from regular "troops," and is only liable to be called into
service when the exigencies of the State make it necessary.
1879.] Dunne v. The People. 139
Opinion of the Court. +
The fact the men comprising the active militia are required
to be sworn to obey the "orders of the commander-in-chief
and such other officers as may be placed over " them, is made
a ground of unfavorable comment. The oath the militia are
required to take obligates them to "bear true allegiance to
the United States and the State of Illinois," and to "support
the constitution thereof." Obviously, the obedience the mili-
tia are bound to observe to the orders of the Governor, is
when they are in the service of the State, and not in actual
service of the United States. And why should they not
observe the orders of the Governor? He is, by the State
constitution, made the commander-in-chief of the militia
when not in service of the United States. An intention to
provide that the militia shall be subject to the orders of the
Governor, when in the actual service of the Union, should
not be imputed to the legislature when a contrary construc-
tion, which is clearly warranted by the context, would hold
the law a constitutional enactment. This principle was re-
cognized and declared in Middleport v. JEtna Insurance Co.
"82 111. 562.
Among the general provisions contained in art. 11, sections
four, five and six have been made the subjects of severe criti-
cism as being repugnant in some way to the laws of the
United States. All these sections might be eliminated from
the statute, if found repugnant to acts of Congress passed in
pursuance of the constitution, and that would not affect in
the slightest degree the efficient organization of the active
militia of the State. They are simply what they purport to
be — " general provisions." But with what acts of Congress
are they inconsistent or repugnant? Section four provides :
" no military company shall leave the State with arms and
equipments without the consent of the commander-in-chief."
If we give to this section of the statute a common-sense con-
struction and narrow its application to the militia when not
in the actual service of the United States, as must have been
the intention of the legislature as clearly appears from the
140 Dunne v. The People. [Nov. T.
Opinion of the Court.
whole spirit of the act, we are relieved from all embarrass-
ment as to its meaning. Assuming, as a proposition too plain
to admit of doubt, that this section of the statute applies only
to the militia when not in the service of the United States,
it may well be asked what right has a body of militia, organ-
ized into a military company, "with arms and equipments"
furnished by the State, to go into another State, beyond the
jurisdiction of this State, without the consent of the com-
mander-in-chief? The mere statement of the question is
sufficient to suggest a negative answer. The presence of such
armed forces in another State might tend to disturb our
friendly relations with such State, and might be the cause of
embarrassing complications.
The fifth section contains a clause that makes it unlawful
" for any body of men whatever, other than the regularly
organized volunteer militia of this State and the troops of
the United States," with an exception in favor of students in
educational institutions where military science is taught as a
part of the course of instruction, "to associate themselves
together as a military company or organization, or to drill or
parade with arms in any city or town of this State, without
the license of the Governor." We have been referred to no
source whence comes the right contended for, to bodies of
men organized into military companies, under no discipline
by the United States or State authorities, "to parade with
arms" in any city or public place as their inclination or
caprice may prompt them. No such right is conferred by any
act of Congress, nor is it insisted this provision of our statute
is in conflict with any paramount law of the United States.
It is a matter that pertains alone to our domestic polity. The
right of the citizen to "bear arms" for the defence of his
person and property is not involved, even remotely, in this
discussion. This section has no bearing whatever on that
right, whatever it may be, and we will enter upon no discus-
sion of that question. Whether bodies of men, with military
organizations or otherwise, under no discipline or command
1879.] Dunne v. The People. 141
Mr. Justice Mtjlkey, dissenting.
by the United States or the State, shall be permitted to
"parade with arms" in populous communities, is a matter
within the regulation and subject to the police power of the
State. In matters pertaining to the internal peace and well-
being of the State, its police powers are plenary and inalien-
able. It is a power co-extensive with self-protection, and is
sometimes termed, and not inaptly, the "law of overruling
necessity." Everything necessary for the protection, safety
and best interests of the people of the State may be done
under this power. Persons and property may be subjected to
all reasonable restraints and burdens for the common good.
Where mere property interests are involved, this power, like
other powers of government, is subject to constitutional lim-
itations; but where the internal peace and health of the people
of the State are concerned, the limitations that are said to be
upon the exercise of this power are, that such "regulations
must have reference to the comfort, safety and welfare of
society." It is within the power of the General Assembly to
enact laws for the suppression of that which may endanger
the public peace, and impose penalties for the infraction of
such laws. What will endanger the public security must, as
a general rule, be left to the wisdom of the legislative depart-
ment of the government. The provision contained in the
fifth section cited was intended by its restraining force to con-
serve the public peace. That being its object, it is not an
unreasonable restraint upon the liberty of the citizen, and is
within no limitation upon the exercise of the police power of
the State.
The judgment will be reversed and the cause remanded.
Judgment reversed.
Mr. Justice Mulkey dissenting.
142 Mueller v. Rebhan. [Nov. T.
Syllabus.
Solomon Mueller
v.
Catharine Rebhan.
1. Jury — mode of filling panel of petit jurors. Where a sufficient number of
the jurors drawn and summoned do not answer to their names when called, it
i3 irregular to fill the panel by directing the sheriff to summon others in the
place of the absentees. But this irregularity will not render the organiza-
tion of the panel void.
2. Where the panel of the petit jury is filled not in accordance with the
statute, but by the selection of the sheriff under the order of the court, ad-
vantage of the irregularity can only be taken by challenge to the array. If
a party enters upon the business of selecting a jury from such panel, he will
waive his right to challenge the array and any objection he may have as to
the regularity of the organization of the panel, and he can not object to any
juror so selected to fill the regular panel, as though they were talesmen.
3. Same — ground of challenge — service on jury within year. The fact that a
juror has served on a jury within a year prior to being called in a case does
not apply to those on the regular panel, but only to those called as talesmen.
The fact that a juror has been irregularly put upon the panel makes no differ-
ence in this respect, as, without a challenge to the array, he must be treated
as properly on the panel.
4. Witness — competency — husband for his wife. Section five of the act re-
lating to evidence, by its terms implies that the language of section one was
intended to be used in a sense so broad as to admit husband and wife to testify
for or against each other as other witnesses, in all cases, except so far as the
act provides otherwise, and hence the necessity of the limitations in section
five confining such witnesses to specified cases.
5. Section five of the act also contains affirmative legislation rendering a
husband competent to testify for or against his wife in certain specified cases,
among which are cases where the wife would if unmarried be plaintiff, and
cases where the litigation concerns the separate property of the wife. In
these cases the husband may testify for or against the wife in the same man-
ner as other parties may under the act.
6. On bill by a married woman to contest the validity of her father's will,
her husband is a competent witness for or against her as to any matter what-
ever of which he has knowledge, except as to admissions and conversations
of his wife made during the marriage.
7. Admissions — of person not party, when admissible. On bill filed to contest
the validity of a will, the declarations and admissions of a deceased devisee
are admissible in evidence against another devisee who has succeeded by will
I
1879.] Mueller v. Rebhan. 143
Statement of the case.
, — — — ______ — *
or devise to the interest of the deceased devisee, on the ground of privity in
estate.
8. The declarations and admissions of privies in estate made before part-
ing with their interest, are admissible in evidence against the parties suc-
ceeding to their estate.
9. Practice — as to order of introducing proof . The usual rule of practice in
this State is, that the party upon whom the burden of proof rests must in the
first instance produce all the proof he proposes to offer in support of his alle-
gation, and that after his adversary has closed his proof he may only intro-
duce such proof as directly rebuts that of his adversary. In this, however,
the trial court has a discretion, which should be exercised so that neither
party shall be taken by surprise, or deprived without notice of an opportunity
of introducing material evidence.
10. Where, on the trial of an issue as to the sanity of a testator, after the
defendant has closed his case in support of the will and rested his case upon
the production of the will, the affidavits of the subscribing witnesses and the
order admitting the will to probate, he was notified by the court that if he
desired to produce any further evidence of the sanity of the testator he must
then do so, otherwise he could not after the contestant had closed his case, it
was held that the defendant could not complain if he was not afterwards
allowed to cumulate proof on the subject.
11. Same — right to further proof of facts conceded. After the examination
of a great number of witnesses as to certain facts which are conceded by the
opposite party, there is no error in refusing to hear other witnesses to prove
the same facts.
12. Where it is conceded that an absent witness will swear to the same
state of facts as the witnesses already examined, and the court then states
that he will hear no more evidence as to such facts, but it does not appear
that the absent witness was produced, or was offered to testify, there will be
no error in the remark of the court indicating what he would do if the witness
should be produced.
Appeal from the Circuit Court of St. Clair county; the
Hon. William H. Snyder, Judge, presiding.
Mr. W. Winkelman, for the appellant.
Mr. James M. Dill, and Mr. W. C. Kueffner, for the
appellee.
This was a bill filed May 8, 1875, by Catharine Rebhan,
the appellee, against Solomon Mueller and others, to set aside
the will of George Christian Mueller, (executed on the 14th
144 Mueller v. Rebhan. [Nov. T.
Opinion of the Court.
of March, 1870,) who died a few days after the execution of
the will. The will was afterwards duly probated.
At the time of the death of the testator he left but four
heirs, Solomon Mueller, George Mueller, Margaret Bernhardt
and Catharine Rebhan. By the terms of the will $50 was
given to each of the daughters, and the residue of his prop-
erty, which was variously estimated from $40,000 to $120,000,
was given to the sons, Solomon Mueller and George Mueller,
and Solomon and George were appointed executors of the
will. Afterwards, and before the filing of this bill, George
Mueller (heir and executor as aforesaid) died, leaving a will
by which he gave his brother Solomon all his property, real
and personal.
The grounds upon which it was sought to set aside the will
were two : 1. It was charged that George Christian Mueller,
at the time of the making of the will, was mentally incapable,
and that he was of weak intellect, not possessed of capacity
sufficient to made a valid will. 2. That he was induced to
make the will by undue influence exerted upon him by his
sons, Solomon and George.
An issue was formed as to the validity of the will, that was
submitted to a jury for trial at the January term, 1877, and
resulted in a verdict that the will in question was not the
will of the deceased. A motion for a new trial was made by
the defendants and overruled by the court, and a final decree
entered setting the will aside, and Solomon Mueller appeals
to this court.
Mr. Justice Dickey delivered the opinion of the Court:
It appears from the record that some days before this case
was called for trial at that term of the court, some of the
jurors originally drawn and summoned, when called, not
appearing, and the regular panel not being full, the court
ordered the sheriff to summon a number of jurors sufficient
to fill up the same. The persons so summoned were, by order
of the court, put upon the regular panel for two weeks.
1879.] Mueller v. Eebhak. 145
Opinion of the Court.
Among the jurors so called by the sheriff and placed upon
the panel by order of the court for two weeks, were the names
of Ellis and Hess.
When this cause was called for trial four jurors were
drawn from the regular panel thus organized, who were ex-
amined by the parties and accepted and sworn. Then four
others were called and were accepted by the appellee, among
whom was the juror Ellis. Upon examination by appellant
Ellis testified that he had served in that court as a juror on
the day previous. Appellant thereupon challenged him for
cause, upon the ground that he had served upon a jury
within a year in a court of record in that county. This chal-
lenge was overruled by the court, and the four jurors were
sworn. Among the next four who were called was the juror
Hess, who was interrogated by appellant, and it was found that
he had served as a juror in a cause at that term of the court
before the calling of this cause. Appellant thereupon chal-
lenged Hess as incompetent, upon the ground that he had
served upon a jury within a year in a court of record in that
county. This challenge was overruled.
It is insisted by appellant that the court erred in overruling
his challenges to these jurors. The counsel for appellant
takes the position, that inasmuch as Ellis and Hess were not
drawn by the clerk of the circuit court from the box in the
county clerk's office, but were summoned by the sheriff, "they
were not on the regular panel," and should have been treated
as talesmen; and hence insists that his challenges ought to
have been sustained, under the provision of section 14, chap-
ter 78 of the Eevised Statutes of 1874, which says, "It shall
be sufficient cause of challenge of a petit juror, if he is not
one of the regular panel, that he has served as a juror on the
trial of a cause in any court of record in the county within
one year previous to the time of his being called as a juror."
This position, we think, is not well taken. It is, undoubt-
edly, true that the manner in which these men were placed
upon the regular panel was not in accordance with the stat-
10—94 III.
146 Mueller v. Rebhan. [Nov. T.
Opinion of the Court.
ute. This irregularity is not such as to render the organiza-
tion of the regular panel void. By a challenge to the array
the question of the regularity or proper organization of
the panel might have been presented. No such challenge
was made in this case. Appellant having entered upon the
business of drawing a jury from the regular panel as organ-
ized, had thus waived his right to challenge the array, and
waived any objection which he might have taken to the regu-
larity of the organization of the panel. It was not compe-
tent for him, after having accepted four of that panel, to chal-
lenge the jurors in question, as though they had been called
as talesmen. In Stone v. The People, 2 Scam. 326, it is laid
down that objections to the mode of summoning the petit
jury must be taken by challenge of the array, or by motion to
quash the array, or the tales — if the objection goes only to the
tales. In Gropp v. The People, 67 111. 160, the same doctrine
is laid down, and reference is there made to 5 Bac. Abr. 345,
title, Juries, E. : where it is said, neither party shall take a
challenge to the polls which he might have had to the array.
We are referred to the cases of Bissell v. Ryan, 23 111. 566,
and to Brooks v. Bruyn, 35 id. 392, as holding a different
doctrine. These cases were decided under the act of 1859.
That act provided, "that hereafter it shall be sufficient cause
of challenge to any juror called to be sworn, in any cause,
that he has been sworn as a juror at any term of court held
within a year prior to the time of such challenge." It will
be observed that the act in force at the time of the trial of
the cause at bar differs from that of 1859, in limiting this
cause of challenge to such jurors as are "not of the regular
panel." This limitation excludes the cases of Ellis and Hess
from the rule laid down by this court in the cases in 23 111.
and 35 111.
It is also insisted by appellant that the circuit court erred
in permitting the husband of appellee to testify to matters
transpiring, and declarations made, before the death of the
testator.
1879.] Mueller v. Rebhan. 147
Opinion of the Court. /
At common law, where the wife was incompetent to testify
by reason of being a party, or by reason of being interested
in the event of the suit, the husband was also held incompe-
tent. The question presented in this case is, as to how far that
rule has been modified by statute and whether the rule has
not in fact been wholly abolished. By the act approved
March 29, 1872, "in regard to evidence and depositions in
civil cases," which is re-enacted (with some modifications)
and embodied in chap. 51, Rev. Stat. 1874, it was provided in
section 1 : "That no person shall be disqualified as a witness
in a civil action, suit or proceeding, except as hereinafter
stated, by reason of his or her interest in the event thereof,
as a party or otherwise." * * * * By section 2, it was
provided: "No party to any civil action, suit or proceeding,
or person directly interested in the event thereof, shall be
allowed to testify therein of his own motion or in his own
behalf by virtue of the foregoing section (1), when any ad-
verse party sues or defends * * * * as the executor,
administrator, heir, legatee or devisee of any deceased per-
son, * * * except in the following cases, namely, * * *
a party or interested person may testify to facts occurring after
the death of such deceased person. " ■-*.*.• # And by sec-
tion 5, "No husband or wife shall, by virtue of section 1 of
this act, be rendered competent to testify for or against each
other as to any transaction or conversation occurring during
the marriage, * * * except in cases where the wife would,
if unmarried, be plaintiff or defendant, * * * and ex-
Icept in cases where the litigation shall be concerning the sep-
arate property of the wife, * * * and except, also, in
actions upon policy of insurance of property, as far as it
relates to the amount and value of the property alleged to
have been destroyed, * * * in all of which cases the hus-
band and wife may testify for or against each other in the
same manner as other parties may, under the provisions of
this act: Provided, that nothing in this section contained shall
148 Mueller v. Eebhan. [Nov. T
Opinion of the Court.
to testify to any admissions or conversations of the other,
* * * except in suits or causes between such husband and
wife."
It will be seen that section 5, by its terms, necessarily im-
plies that the language of section 1 was intended by the
legislature to be used in a sense so broad as to admit husband
and wife to testify for or against each other as other wit-
nesses, in all cases, except in so far as the act should otherwise
provide; and hence the necessity of the limitations found in
section 5, confining such witnesses to specified cases. This
section also contains affirmative legislation, rendering a hus-
band competent to testify for or against the wife in certain
specified cases; among which are cases where the wife would,
if unmarried, be plaintiff, and cases where the litigation con-
cerns the separate property of the wife. In these cases the
statute says the husband may testify for or against the wife in
the same manner as other parties may under the provisions
of this act.
It is plain that in this case, if unmarried, the appellee
would necessarily be the party complainant; and it is also
plain that the subject matter of litigation is the separate prop-
erty of the wife. We then have the express provision in
section 5, that in this case the husband may testify for or
against his wife "as other parties may under the provisions of
this act."
It is insisted, however, by appellant that the term " parties,"
here, is not used as synonymous with the word "persons,"
or " witnesses," but has reference to the parties to the suit,
and that this language is to be construed as if it were written
that the husband in such case might testify for his wife only
as to matters in relation to which she is competent to testify
for herself.
Appellant insists that the wife is rendered incompetent (by
section 2 of the act) to testify in this case as to matters occur-
ring prior to the death of her father; and that, therefore, her
1879.] Mueller v. Kebhan. 149
Opinion of the Court. y
husband must also be held equally incompetent to testify in
her behalf to such facts.
In Pegg v. Carroll, 89 111. 205, it was held, that in a pro-
ceeding for partition of land between heirs and for the adjust-
ment of matters of advancements made to some, the husband
of one of the parties was a competent witness in behalf of
his wife. Although the parties claimed their respective rights,
and sued and were sued in respect to rights held by inherit-
ance, yet the statute could have no application to such case.
The statute in this regard was intended to protect the estates
of deceased persons from the assaults of strangers, and relates
to proceedings wherein the decision sought by the party so
testifying would tend to reduce or impair the estate, and does
not relate to the relative rights of heirs or devisees, as to the
distribution of an estate, in proceedings by which the estate
itself is in no event to be reduced or impaired.
The objection to the competency of this witness was not
well taken. Under our statutes, we hold that the husband
was a competent witness to testify in this case to any matter
whatever of which he had knowledge, except as to admissions
and conversations of his wife, made during marriage.
Next, it is insisted by appellant that the declarations and
admissions made by George Mueller, (one of the legatees
under the will) during his life, were incompetent evidence as
against his co-legatees. Solomon Mueller is the only party
complaining of the decision in this case. A part of his in-
terest in the property in question was derived from George
Mueller, through his (George Mueller's) will. In so far as
that part of the estate was involved, Solomon Mueller and
George Mueller were privies in estate, and the declarations
of George Mueller were competent in that regard as against
Solomon Mueller.
It is also insisted that the court erred in refusing to permit
appellant, after the complainant had closed her testimony as
to the sanity of George Christian Mueller at the time of the
150 Mueller v. Eebhan. [Nov. T.
Opinion of the Court.
making of the will, to introduce testimony tending to prove
that he was sane and mentally competent.
As a matter of practice the rulings of courts are not uni-
form upon this question. In some courts it is held that
neither party is called upon to produce all his testimony in
support of any allegation in issue until it has been developed
on the trial that an issue in the evidence is made upon that
question; the view of such courts being that where the bur-
den of proof of a given allegation rests upon a party, it is
sufficient for that party, in the first instance, to produce proof
enough to make a prima facie case, and that he is not re-
quired to accumulate other testimony until evidence has been
introduced tending to contradict his prima facie case. That
rule has not prevailed in the courts of this State; but the
more usual rule is, that the party upon whom the burden of
proof rests must, in the first instance, produce all the proof
he proposes to offer in support of his allegation ; and after
his adversary has closed his proof, he may only be heard in
adducing proof directly rebutting the proofs given by his
adversary. This question of practice must, to a greater or
less degree, be left to the discretion of the court trying the
case. This discretion should be exercised in such a manner
that neither party shall be taken by surprise and deprived,
without notice, of an opportunity of producing any material
proof.
In this case, when the appellant closed his proof and rested
his case upon the production of the will, the affidavit of the
subscribing witnesses and the order of the court admitting it
to probate, appellant was notified (the record shows) that if
he desired to produce any additional proof of the sanity of
the testator it might be then produced, otherwise the intro-
duction of it would not be permitted after the defendant had
closed his case. Appellant, having rested his case upon this
prima facie proof, under these circumstances can not be al-
lowed to complain that he was not permitted to cumulate
proof upon this subject. An examination of the proof, how-
1879.] Mueller v. Rebhan. 151
Opinion of the Court. j,
ever, shows that the court did allow appellant to introduce
and prove any and all facts having a tendency to rebut the
proof offered by appellee, except in so far as he proposed to
interrogate witnesses as to their opinions as to whether the
testator was sane. We are led to believe that appellant suf-
fered no injury from this ruling of the court.
After the appellant had introduced and examined seventeen
witnesses, who testified in substance that they had long been
acquainted with the testator and with his sons, and that they
had observed no material change in the capacity of the testator,
in the few years next prior to the making of the will, from
what had been his mental condition in former years, and that
during this time the testator seemed to be "the boss of the
farm," counsel for appellant stated to the court that Mr.
Giebhardt, a witness that he wished to produce, was not pres-
ent in court, that he would like to introduce him if he came,
adding that " he is the only witness of importance" they had
to introduce. Counsel for appellee thereupon offered to ad-
mit that all the other witnesses of defendant would swear
that there had been no change in the actions of the deceased,
George Christian Mueller, as far as they knew; that he was
boss of the farm; and as to his treatment by the sons, they
would swear the same as the witnesses for appellant who had
already been examined. The court thereupon stated that he
would permit no more witnesses to be examined on the part
of the change of conduct of the old man, the treatment of
the old man by the boys, and the bossing of the farm. To
this ruling of the court the appellant excepted, and no other
witnesses were offered by defendant.
We perceive no error in this transaction. What the court
said on this subject was a mere indication as to what he would
rule if the witness in question should come into court before
the close of the trial, and be offered as a witness. Complainant
did not have the witness present in court, nor does the record
show that the witness was brought into court at any time be-
fore the close of the trial. Even if the witness had been
152 Gr. Tower Mining, etc., Co. v. Hall. [Nov. T.
Opinion of the Court.
brought in and produced, counsel for appellee having con-
ceded, in substance, all that it seems was proposed to be
proved by the absent witness, it would have been unnecessary
to have occupied the time with further testimony upon those
points. Appellant makes some other points in his brief, but
these seem to be the points upon which he chiefly relies.
We find no error in the other positions, and think it un-
necessary to discuss them. The decree of the circuit court
must be affirmed.
Decree affirmed.
Grand Tower Mining, Manufacturing and Trans. Co.
v.
James W. Hall.
Appeals from a trial court — suit in chancery to foreclose. On September
12, 1879, a defendant in a chancery suit to foreclose a mortgage sued out of
this court a writ of error to reverse the decree of foreclosure rendered in
January, 1876: Held, that it should have been sued out of the Appellate
Court, and the writ of error was dismissed.
Writ of Error to the Circuit Court of Jackson county;
the Hon. Monroe C. Crawford, Judge, presiding.
Mr. Thomas G. Allen, for the plaintiff in error.
Mr. Wm. J. Allen, for the defendant in error.
Mr. Justice Craig delivered the opinion of the Court:
This was a bill in equity, to foreclose a mortgage, at the
January term, 1876, of the Jackson circuit court. A final
decree was rendered ordering a sale of the mortgaged premi-
ses in satisfaction of the debt. The writ of error was not,
however, sued out until the 12th day of September, 1879; and
the question arises, whether this court has jurisdiction, or
1879.] Gr. Tower Mining, etc., Co. v. Hall. 153
Opinion of the Court.
whether the writ of error should have issued from the Appel-
late Court.
The eighth section of the Appellate Court act provides that
the Appellate Court shall have jurisdiction of all matters of
appeal or writs of error from the final judgments, orders or
decrees of any of the circuit courts, or the Superior Court of
Cook county, or from the city courts, in any suit or proceed-
ing at law or in chancery, other than criminal cases and cases
involving a franchise or freehold, or the validity of a statute.
Under this provision of the statute, and under section 88 of
the Practice act in force July 1, 1877, it was held in Young v.
Stearns, 91 111. 221, and FleisoJiman v. Walker, id. 318, that
appeals from and writs of error to circuit courts in all chan-
cery cases should be taken to the Appellate Court, and such
cases could only reach this court after they had been decided
in that court. Since these cases were decided, the legislature
has amended section 88 of the Practice Act, (Laws of 1879,
page 222,) and provided that in all criminal cases above the
grade of misdemeanors, and in cases in which a franchise or
freehold, or the validity of a statute or construction of the
constitution is involved, and in all cases relating to revenue
or in which the State is interested as a party or otherwise,
appeals or error shall be taken directly to the Supreme Court.
The amendment, however, has no application to the case under
consideration, as neither a freehold, franchise, the validity
of a statute nor construction of a constitution is involved ;
and the cases cited where we have given a construction to the
jurisdiction of the Appellate Court must govern.
The writ of error will therefore be dismissed.
Writ of error dismissed.
154 Holland et al. v. Swain. [Nov. T.
Brief for Plaintiffs in Error.
Lewis P. Holland et al.
v.
Nathaniel Swain.
1. Purchaser — when protected against fraud, etc., of his vendor. Where the
owner of personal property puts the same into the possession of another with
the present intention of parting with his title thereto, and the person thus in
possession as owner, by the consent of the real owner, sells and delivers the
same for a valuable consideration to a bona fide purchaser, whether such original
delivery of possession occurred by reason of fraud, or of a void contract, or
from any other cause, such original owner can not recover the property from
SMch honest purchaser.
2. Gaming — limitation of action by loser. The legal effect of sec. 132 of the
Criminal Code giving a right of action to the loser of property, etc., by wager
upon any race, against the winner, is to limit the time in which the action
may be brought to six months. After that period has elapsed without suit by
the loser, any other person may sue the winner and recover treble the value
of the money, etc., one-half to the use of the county, and the other half to the
use of the person suing.
Writ of Error to the Circuit Court of Williamson county ;
the Hon. Monroe C. Crawford, Judge, presiding.
Mr. F. E. Albright, and Mr. K. A. D. Wilbanks, for
the plaintiffs in error :
At common law horse racing, not being considered against
public policy, was not illegal, and money or other property
lost and delivered could not be recovered back by the loser.
Bacon's Abridg. vol. 4, p. 452, and cases cited; Metcalf on
Contracts, 238.
The defendant in error has only such remedy as is specially
given by the statute. The statute gives the owner of property
lost at gaming six months from the date of loss and delivery
in which to sue and recover from the winner, viz, debt, re-
plevin, assumpsit, trover, or a suit in chancery. The latter
remedy he may have notwithstanding his remedy at law is
complete. Chapin et al. v. Dake, 57 111. 295.
1879.] Holland et al. v. Swain. 155
Brief for Defendant in Error.
After the expiration of six months if the loser fails to sue
for the money or other thing lost and paid by him, the statute
authorizes any person to sue for and recover treble the value
of the money, goods, chattels or other things, with costs of
suit, etc. Kev. Stat. 1874, p. 372, sec. 132.
Before the expiration of six months the loser can bring re-
plevin against the winner, but not against any one else. After
that time any person may bring a special action on the case
against the winner for treble the value and give one-half to
the county.
The plaintiifs in error were innocent purchasers of the
horse, without any notice he had been won at gaming.
Messrs. Pollock & Son, for the defendant in error:
The attempt to set up sec. 132 of ch. 38, Eev. Stat. 1874, as
a bar to the right of recovery can not be sustained. The only
limitation to the right of recovering personal property is five
years. Kev. Stat. 1874, p. 675, sec. 15.
The object of sec. 132 was evidently to give an additional
remedy against an existing evil, and not as a limitation of
the right of action.
If true that the horse was lost upon a wager, the fifth plea
fails to state that the defendant in error either surrendered or
authorized the surrender of the horse by the terms of the
wager or otherwise, and leaves the party appropriating the
property as a wrongdoer without color of right.
We have substantially adopted the English statute, and this
court, following the construction of the English courts, has
declared that horse racing is gambling; that all gambling
contracts are absolutely void, and that money or property paid
over or delivered upon such contracts may be recovered back.
Tatman v. Strader, 23 111. 493; Garrison et al. v. McGregor,
51 id. 473; Richardson et al. v. Kelly, 85 id. 491; Merchants'
Loan and Trust Co. v. Goodrich, 75 id. 554.
I
156 Holland et al. v. Swain. [Nov. T.
Opinion of the Court.
Mr. Justice Dickey delivered the opinion of the Court:
This is an action of replevin, brought in the circuit court
of Williamson county, on the 15th day of April, 1876, by
Swain, defendant in error, against Holland and Gurley,
plaintiffs in error, for the possession of a certain horse of the
value of $500.
Defendants below pleaded that on the 5th day of Septem-
ber, 1875, the horse was put up by plaintiff on a wager upon
a horse race and lost, and delivered to one Albright, the
winner, and that afterwards, on April 1, 1876, defendant
Holland in good faith, for a valuable consideration, bought
the horse of Albright without notice that Albright had ac-
quired the horse by wager.
Another plea was filed setting out in substance the wager,
loss, and delivery of the horse to Albright under the wager,
and that the action was not brought within six months, plead-
ing in bar sec. 132, ch. 38 of Rev. Stat. 1874.
To each of these pleas the circuit court sustained a general
demurrer, and judgment was rendered on demurrer for plain-
tiff below.
To reverse this judgment defendants below bring this writ
of error.
When the owner of personal property puts the same into
the possession of another with the present intention of part-
ing with his title thereto, and the person thus in possession as
owner by the consent of the real owner, sells and delivers the
same for a valuable consideration to a bona fide purchaser,
whether such original delivery of possession occurred by
reason of fraud or of a void contract, or from any other
cause, such original owner can not recover the property from
such honest purchaser. Jennings v. Gage et al. 13 111. 610.
By section 132 of our Criminal Code, it is enacted, that any
person who shall, by any wager upon any race, lose to any
person any money or other valuable thing amounting to $10,
and shall deliver the same, the person so losing and deliver-
1879.] Holland et al. v. Swain. 157
Opinion of the Court.
ing the same may sue fox* and recover the same or the full
value of the same from the winner thereof; and in case the
loser in such case shall not within six months sue for such
money or other valuable thing, it shall be lawful for any per-
son to sue for and recover treble the value of the money or
other thing, by action against the winner, one-half to the use
of the county and the other to the person suing.
It can not be supposed that it was the legislative intention
that after the expiration of six months the winner of property
should be liable to the loser for the property, and that at the
same time the winner should be liable in addition for treble
the value to another in a qui tarn action. This can not be so,
unless courts increase the penal character of the statute by
construction, which is not allowable. But it is insisted that
the bringing of this action suspends the qui tarn action, and
that a recovery in this action bars a qui tarn action. This
would necessarily do violence to the language of the statute;
for should the plaintiff in such action aver that no action had
been brought by the loser within the six months, he has the
statute for his support in claiming his right of action, and it
seems it would be no answer to such action to say that the
loser had recovered the property by an action brought after
the expiration of the six months.
We must conclude that the legal effect of the statute is to
limit the time In which the loser may bring his action to six
months, and to bar the bringing of such action after the lapse
of that time.
The judgment must be reversed, and the cause remanded
with directions to overrule the demurrer to these pleas, and
permit the plaintiff to file his replications thereto if he de-
sires, otherwise to render judgment for the defendants below
upon the pleas.
Judgment reversed.
158 Murfitt et al. v. Jessop et al. [Nov. T.
Brief for Plaintiff's in Error.
"William Murfitt et al.
v.
Robert N*. Jessop et al.
1. Will < — devise, whether of life or fee simple estate. A testator, after
devising all his personal property to his wife for her only use, used the
following language: "And I further will and bequeath to my wife, A. H., all
of my lands, designated and described as follows: (etc.) together with all and
singular the rents and profits arising therefrom, to the only proper use and
benefit of her and my heirs and assigns forever; and I will and bequeath
that she have all the lands, tenements and goods and chattels that I may have
any right and title to, all to her only proper use and benefit:" Held, that
the widow took an estate in fee simple in all the lands, and that she would
have so taken if the last clause had been omitted.
2. Same — later clause must prevail. A later clause in a will, when repug-
nant to a former one, must be considered as intended to modify or abrogate
the former.
Writ of Error to the Circuit Court of Wayne county ;
the Hon. James M. Pollock, Judge, presiding.
Mr. Edwin Beecher, for the plaintiffs in error:
Courts will construe wills so as to give an estate of inher-
itance to the first donee. 1 Redf. on Wills, 430 ; Letter v.
Sheppard, 85 111. 242.
When different clauses conflict the last must prevail.
Brownfield v. Wilson, 78 111. 470. 1 Redf. on Wills, 443, 450.
The last claus-e of this will gave the land to the widow.
When personal property is given in the same clause with
realty, it is an evidence that a fee was intended. Leiter v.
Sheppard, 85 111. 247. It was so given in the last clause of
this will.
The language used in the first paragraph of the will which
conveys the personalty, and that in the third relating to
realty, is identical, and should receive the same construction.
Duryea v. Duryea et al. 85. 111. 42 ; 1 Redf. on Wills, 427.
1879.] Murfitt et al. v. Jessop et al. 159
Brief for Defendants in Error.
When debts are made a charge on the estate, the donee
takes a fee. King v. Ackerman, 2 Black, 415; Denn v. Mel-
ton, 5 T. R. 562; 2 Washb. on Real Prop. 751, § 25.
The parol evidence was proper. Brownjield v. Wilson et al.
supra; Smith v. Bell, 6 Peters, 75; Smyth v. Taylor, 21 111.
301. 1 Redf. on Wills, 426.
The rule against disinheriting heirs is no longer favored.
King v. Ackerman, 2 Black, 414, 417.
The intention should prevail, even over express words.
Smith v. Bell } 6 Peters, 83; Corrigan v. Kierman, 1 Bradford,
208.
The intention of this will was clearly to give the fee to the
widow. Leiter v. Sheppard, supra; Marhillie v. Ragland, 77
111. 98 ; Richardson et ux. v. Noyes et al. 2 Mass. 56.
Mr. J. G. Crews, for the defendants in error:
The word "my" before the word heirs, in the second clause,
was evidently put there for a purpose, and has a meaning. In
Bergan et al. v. Cahill et al. 55 111. 160, a much stronger case
than this in favor of the widow, the court only gave her a life
estate.
When a testator makes a general devise or bequest which
would include the whole of his estate, and in other portions
of the will makes specific dispositions, these will be regarded
as explanations or exceptions out of the general disposition,
and it will not be important in such case whether the general
or special provision comes first. 1 Redf. on Wills, 455-6;
Brownjield v. Wilson et al. 78 111. 467.
It is also a sound principle or rule of construction, that the
will is to be construed as a whole, and every expressed intent
of the testator to be carried out, if possible. 1. Redf. on
Wills, 431-3; Mason v. Ely, 38 111. 138; Boyd et al. v. Stra-
han et al. 36 id. 355; Burret et al. v. Lester et al. 53 id. 325.
And while it is true that when there is an irreconcilable
repugnancy between the different parts of a will the later
clause will prevail, yet courts will reconcile them if possible.
160 Muefitt et al. v. Jessop et al. [Nov. T.
Opinion of the Court.
It seems so utterly inconsistent with the nature of things that
a man in one clause of a will should devise property to one
person, and in the next clause give it to a different person,
that courts are not so inclined to construe a will if they can
avoid it. 1 Eedf. on Wills, 431-470; Kindig's Exrs. v.
Smith's Admr. 39 111. 300; 2 Sto. Eq. 462-3; 2 Hillard on
Real Property, 536; Bergan v. Cahill, 55 111. 160; Brown-
field v. Wilson, supra.
Mr. Chief Justice Walker delivered the opinion of the
Court :
On the 30th day of November, 1852, Isaac Hand executed
his will, by which he disposed of all of his property. He
died on that day, or very soon afterwards, leaving Angeline,
(one of the plaintiffs in error) his widow, and two children,
(two of the defendants in error.) Subsequently, in October,
1858, the widow filed a bill, making the two children, then
minors, defendants. The record in that case does not show
that a summons was issued or served on them, but a guardian
ad litem entered their appearance and a hearing was had, and
a decree rendered; but it did not find that a summons was
issued or service had on the defendants, but it found the
widow took, by the will, a fee simple title to the land.
In November, 1858, the widow sold and conveyed the land
to Wm. Murfitt for the consideration of $1000, and he went
into and still held possession when this suit was brought.
This suit was instituted by the children and their husbands
to review the decree rendered in the former case. The bill
alleges that there was no service on the defendants in that case,
and the court failed to acquire jurisdiction of their persons, and
that the decree is, therefore, void; and that, by the will, the
widow only took a life estate, and the heirs of Hand took the
remainder. On a hearing, the court below held that the former
decree was void, and that the widow should have a life estate,
notwithstanding her sale to Murfitt, and that the heirs of
1879.] Murfitt et al. v. Jessop et al. 161
Opinion of the Court,
Hand have the remainder. To reverse that decree, defendants
bring error and urge a reversal.
Omitting the formal parts, this is the will :
"I do will and bequeath unto my wife, Angeline Hand, all
my horses and cattle and hogs, my plows and gears, — in short,
all my farming utensils; and all my corn in the field, all my
oats and hay in the stack, and all my household and kitchen
furniture, — in short, all my goods, chattels and effects, to her
only proper use and benefit.
"And I further will and bequeath unto my wife, Angeline
Hand, all of my lands, designated and described as follows:
(description omitted) together with all and singular the rents
and profits therefrom arising, to the only proper use and bene-
fit of her and my heirs and assigns forever.
"And I will and bequeath that she have all the lands, tene-
ments and goods and chattels that I have any right and title
to, all to her only proper use and benefit."
As to the first paragraph there is no contest. It is upon
the true meaning of the second and third that this controversy
arises. Taking the first clause of the second, and excluding
the last words, "and my heirs and assigns forever," and there
would be no doubt that the testator had devised to his widow an
absolute fee simple estate. Dispensing with the necessity of
technical terms in a deed or will to pass an estate of inherit-
ance, as the 13th section of the Conveyance act does, there
could be no question, from the language used, that the testator
intended to devise the land to her in fee. As the language
would be generally understood, that was the intention, clearly
and unmistakably expressed. Then, do the words, "and my
heirs and assigns," in anywise change the meaning, and if so,
to what extent and in what manner? We are at a loss to see
that they can be construed to limit the preceding devise to a
life estate to his widow and in remainder. Had such been
the intention, he would surely have used language to express
that design. If that had been his purpose, he would have
surely said, to hold during her life, until her death, or so long
11—94 III.
162 Murfitt et al. v. Jessop et al. [Nov. T«
Opinion of the Court.
as she should live, or some other term that would have de-
scribed the estate. The language does not import the inten-
tion to create a life estate. If the words are a limitation of
the previous language employed in the sentence, it rather
implies that she and his heirs should hold the land in fee as
tenants in common; but when he, by the first part of the
sentence, wills and bequeaths it to her, that repels the pre-
sumption that such was designed. Had that been the pur-
pose, he surely would have used the language, that he willed
and bequeathed it to his wife, Angeline Hand, and his daugh-
ters, Joseph Ann and Zebiah H. Hand. This would have
been direct, simple, and the usual course. Had he designed
to give them any interest in the property, it is strange that
he does not mention their names in the will. This omission,
which seems to have been intentional, seems to repel all pre-
sumption that he intended to devise to them either the re-
mainder, the fee in common with their mother, or any other
interest or estate whatever. If this paragraph stood alone,
unexplained by the succeeding paragraph, we should hesitate
long before we could say that, from the language employed,
he intended to devise them any interest in the land.
But when we turn to the third sentence, or paragraph, we
think it removes all doubt that he intended to devise to his
widow the land in fee. That appears to have been used to
remove all doubt. As he says, aAnd I will and bequeath that
she have all the lands, tenements and goods and chattels that
I have any right and title to, all to her only proper use and
benefit. " Why use this language unless it was to free what had
already been said from all doubt? He had already bequeathed
all of his personal property to his wife, and there was no
necessity of again bequeathing it, without any change or lim-
itation. So of the real estate; he had devised it to her, and
why devise it again? This language was, we have no doubt,
used to remove doubt and to free the preceding bequest and
devise from any obscurity that might exist. If this was not
so, then it must have been used to limit or change the devise
1879.] Murfitt et al. v. Jessop et al. 163
Mr. Justice Dickey, dissenting.
of the preceding clause, to prevent his heirs from claiming
any rights or interest in the property, and to give it abso-
lutely to his widow. It was held in Brownfield v. Wilson, 78
111. 470, that a later clause of a will is to be considered,
when repugnant to a former provision, as intending to modify
or abrogate the former. In such a case, we must presume
that, having reconsidered the former provision, the testator
was not satisfied with it, and, by the later clause, intended to
more fully and accurately express his intention. It is more
reasonable to indulge this presumption than to suppose that
he designedly made two repugnant provisions that could not
be harmonized, or both be carried into effect.
We have no doubt, from the language employed in this
will, that the testator intended to devise, and did devise, to
his wife, Angeline Hand, this land in fee simple.
This view of the case renders the discussion of the other
questions raised and argued on this record unnecessary.
For the error indicated, the decree of the court below must
be reversed, and the cause remanded with directions to the
circuit court to dismiss the bill.
Decree reversed.
Mr. Justice Dickey: The words of the will surely are
not perspicuous, but I incline to the opinion, from the words
of the will, that the testator intended to give to his wife a
life estate only. I think the third clause was added merely to
cover such lands, if any, as might not be found sufficiently
described in the second clause, and not with a view of chang-
ing the object of that clause. The construction adopted ren-
ders nugatory the words, a my heirs," in the second clause.
I think those words were put there for a purpose, and no
other purpose is apparent except that they should enjoy the
property after her enjoyment thereof should end.
164 Jarvis et al. v. Biggin. [Nov. T.
Opinion of the Court.
William W. Jarvis et aL
v.
Ignatius Eiggin.
Texas and Cherokee cattle — law relating to, unconstitutional. The statute
of this State relating to Texas and Cherokee cattle, and making a party-
having them liable for diseases communicated by them, is unconstitutional,
and no action can be maintained under its provisions.
Appeal from the Circuit Court of Madison county; the
Hon. George W. Wall, Judge, presiding.
Messrs. Irwin & Springer, and Mr. C. P. Wise, for the
appellants.
Messrs. Gillespie & Happy, for the appellee.
Per Curiam: Appellee brought an action on the case,
against appellants, to recover damages sustained by appellee,
claimed to have been occasioned by reason of the disease
called "Texas fever" being communicated to his cattle by
ten head, or some of them, sold by appellants to appellee;
that appellants sold the ten head to appellee, at the time
falsely representing that the cattle were from Southwest Mis-
souri and were entirely free from disease, and they would not
communicate disease to the other cattle; that in fact the
cattle were Cherokee cattle, and were in such a condition as
to communicate disease to other cattle ; that relying upon
these representations, appellee turned the cattle so purchased
into his pasture with other cattle which he owned, ten of
which contracted disease of them, and eight of the number
died, and the loss was thereby sustained.
This is the gravamen of the complaint, differently stated in
various counts of the declaration. A demurrer was sustained
to all but the first count, and leave given to amend. Another
demurrer was sustained to all but the fourth and seventh
counts as amended. It was agreed by the parties that the
1879.] Bjcheson et al. v. Crawford et al. 165
Syllabus.
cause be tried as though the plea of the general issue had
been filed.
A trial was had by the court and a jury, and a verdict for
plaintiff. A motion for a new trial was overruled, and judg-
ment rendered for $175 and costs. Defendants perfected an
appeal to this court, and now urge a reversal.
The questions presented by this record have been decided
in Railroad Co. v. Husen, 95 U. S. R. 465. In that case the
law under which this action is brought was held to be uncon-
stitutional. And in the case of Salzenstein et al. v. Mavis, 91
111. 391, which was a case similar to this, we held we were
bound by the decision of the Supreme Court of the United
States, and conformed our decision to that of the Supreme
Court. Those cases are decisive of this, and the judgment
of the court below must be reversed.
Judgment reversed.
Eichard Eicheson et al.
V.
Monroe C. Crawford et al.
1. Statute — saving rights on repeal. The act of 1872 repealing section five
of the Revenue act of 1853, which made a collector's bond, when approved and
recorded, a lien on all the real estate of the collector, provides that the repeal
of the act of 1853 shall not impair any existing rights.
2. Lien — of collector's bond. Under the act of 1853, now re-enacted as
section 134 of the Revenue law of 1872, the approval and recording of a
collector's bond created a lien upon the real estate of the collector in favor of
the State and county for moneys collected by him, which can not be defeated
by any sale by him to another.
3. Same — when en/orcible only in equity. A court of equity is the appro-!
priate and indeed the only forum in which to enforce the lien given by the
statute upon the real estate of a collector of taxes, as against subsequent pur-
chasers from him acquiring the legal title before judgment against him.
4. Subrogation — of surety to lien on prinApaV 's land. Where the sureties
of a county collector are compelled to pay money to the State or county for
166 Bjcheson et al. v. Crawford et at. [Nov. T.
Brief for the Appellants.
the default of the collector after he has transferred his real estate after the
statutory lien has attached thereto, they will in equity be entitled to be sub-
rogated to the lien in favor of the State, and may enforce the same against
the grantee of the collector by a bill in chancery to reimburse themselves for
the amount paid by them.
5. Same — security taken by payee inures to benefit of surety. Where a
mortgage or further security is taken from the principal debtor, the property
embraced in it is to be held not only for the benefit of the creditor, but also
for the indemnity of the surety, and it is the right of the surety, when he pays
the debt of the principal, to be subrogated to whatever security the creditor
had.
Appeal from the Circuit Court of Perry county; the
Hon. Amos Watts, Judge, presiding.
Mr. Thomas J. Layman, and Messrs. Hammack & Davis,
for the appellants:
We insist that the statutory lien of a collector's bond is
not only for the security of the State and county, but also for
the indemnity of the securities on the bond, and that in case
the securities are compelled to pay for the principal they are
entitled to be put in the place of the county and State and to
succeed to all the means and every remedy which they pos-
sessed, to enforce payment from the collector. Hay v. Ward
et al. 4 Johns. Ch. 122 ; 1 Corns. 599 ; Watts et al. v. Kinney
et ux. 3 Leigh, 272-294; Powels, Exr. v. White, 11 id. 309;
Wheatley's Heirs v. Calbourn, 12 id. 262, 274; Lidderdale v.
Robinson, 2 Brock. 160; 12 Wheat. 594; Schultz v. Carter
et al. 1 Spears' Eq. 534; Cheeseborough v. Millard, 1 Johns.
Ch. 409 ; Croft v. Moore, 9 Watts, 451 ; Hines v. Keller, 3
Watt & Serg. 401 ; Lathrop and BaWs Appeal, 1 Barr, 522.
If a surety in a bond to the United States pays the debt, he
is entitled to the same preference over other creditors as the
United States had. United States v. Hunter, 5 Mason, 62 ; 5
Peters, 174; Bias v. Bouchard, 3 Edwards, 485; United
States v. Preston et al. 4 Wash. 446; Enders v. Brum, 4 Ran-
dolph, 438; Grider v. Payne, 9 Dana, 188; Perkins et al. v.
Kershaw et al. 1 Hill Ch: 344; Regina v. Salter, 1 H. & N.
274; Regina v. Robinson, id. 275.
1879.] Eicheson etal. v. Crawford et al. 167
Brief for the Appellants.
In Maryland and Delaware it is settled not only that a
surety paying the debt has a claim to be subrogated to the
right of the creditor and to all his liens and securities, but
also that the payment operates in itself as an assignment in
equity of the debt and of a judgment upon it, so as to authorize
him to sue or issue an execution in the creditor's name for his
use. Norwood v. Norwood, 2 Har. & Johns. 238; Sotheren v.
Reed, 4 id. 307 ; Merryman v. State, 5 id. 423 ; Hollingsworth
v. Floyd, 2 Harris & Gill, 88; Watkins v. Worthington, 2
Bland, 509 ; Hardcastle v. Commercial Bank, 1 Harring. 374 ;
CottreVs Appeal, 11 Harris, 294.
In further support of the right of the surety paying for
his principal to be subrogated to the lien against the prin-
cipal, we cite: Lidderdale v. Roberson, 2 Brock. 160; S. C.
12 Wheaton, 594; McMahon v. Fawcett, 2 Randolph, 514;
Hampton v. Levy, 1 McCord's Chy. 107 ; Perkins v. Kershaw,
1 Hill's Chy. 344; Railroad Co. et al. v. Claghorn, 1 Spear's
Eq. 547; Land v. Sergeant, 1 Edwards, 164; Elwood v. Deef-
endorf, 5 Bourbour, 413; Lathrop's Appeal, 1 Barr, 512; At-
loood v. Vincent, 17 Conn. 576; Hardcastle v. Commercial
Bank of Delaware, 1 Harring. 374; note, Cino v. Vance, 4
Clark, 434; Yourkv. Landis, 65 N. C. 557; Burk et al. v.
Chisman et al. 1 Ala. 23; Brown v. Lang, 4 id. 50; Commer-
cial Bapnh of Lake Erie v. Western Reserve Bank, 11 Ohio, 444 ;
Miller v. Woodward & Thornton, Admrs. 8 Mo. 169; Buthaldv,
Buthald, 46 id. 557; Hill v. Marnier, 11 Grattan, 522; JDech-
ard v. Edwards, 2 Sneed, 93 ; Dodier v. Lewis, 27 Miss. 679;
Lewis v. Palmer, 28 N. Y. 271; Klop v. The Lebanon Bank,
10 Wright, 88; Constant v. Matteson et al 22 111. 556; Funk
v. McReynolds, Admr. 33 id. 481 ; Foss v. The City of Chicago,
34 id. 489; Billings v. Sprague, id. 511; Roberts v. Roberts,
36 id. 339; Phares v. Barbour, 49 id. 370; Darst v. Bates,
51 id. 439; Honore v. Lamar Fire Lns. Co. id. 409, and
authorities there cited; Connell et al. v. McCowan et al. 53
id. 363; City National Bank of Ottawa v. Dudgeon, 6o id.
11 ; Rogers v. Meyers, Q8 id. 92.
168 Eicheson et al. v. Crawford et al. [Nov. T.
Brief for the Appellees.
Mr. Andrew D. Duff, and Mr. D. M. Browning, for the
appellees :
1. If the collector's bond creates any lien upon his real
estate, as contended for in this bill, such lien being purely
statutory it is purely legal, and exists by force of the law
alone, and can in nowise be considered an equitable lien. It
must, therefore, be enforced under the law creating it.
2. And unless this bill shows that some special and extra-
ordinary circumstances occurred which prevented and hin-
dered the ordinary eifect and legal execution of this lien,
under the law, a court of equity will not lend its aid towards
enforcing such lien.
3. If this bond was a lien upon any of the lands of the
collector, then as soon as a judgment was recovered upon it
an execution should have been issued and levied upon them,
and they sold in satisfaction of such judgment. Hume et al.
v. Gossett, 43 111. 297.
In the absence of any allegation in the bill that the officer
was requested to proceed, or that he refused to discharge his
legal duty in this behalf, we must presume he would have
done so had not these complainants prevented him by un-
necessarily and voluntarily paying off the execution before
he could sell said lands, and before, he was in a position to
demand property from them as sureties in said judgment.
Subrogation will never be enforced where a party voluntarily
pays. Richmond v. Marston, 15 Ind. 174; Mosier's Appeal,
6 P. F. Smith, 76; Gadsden v. Brown, 1 Spear Eq. 4; Shinn
v. Budd, McCarter Ch. 234; Sanford v. McGlure, 3 Paige,
122; Wilkes v. Harper, 3 Barb. Ch. 338; Garter v. Black, 4
Dev. Bat. 25; Littleton v. Thompson, 2 Beasley, 274; Hoover
v. Eppler, 2 P. F. Smith, 524.
Why pay this judgment before the sheriff could sell these
lands on his execution? For, until this was done he could
not call upon either of these complainants for property.
The lien of a collector's bond being a naked, statutory one,
and in derogation of the common law, must be construed
1879.] Richeson et al. v. Crawford et al. 169
Brief for the Appellees.
strictly. Brady v. Anderson, 24 111. 112; Potter's Dwarris on
Statute, 257, 259 and 275.
The secret lien is entitled to no favor at the hands of
courts. McCoy v. Morrow, 18 111. 523; Rosenthal v. Rennick,
44 id. 205.
The collector's bond is made, and this lien, whatever it may
be, is created for the benefit of the public alone, and no pri-
vate persons have any interest therein or remedies thereon.
Brown v. Phipps, 6 Sm. & Marsh. 51 ; Cooley on Taxation,
503, note 3.
If a surety pays a debt without requiring an assignment,
or doing some act at the time, showing that he did not intend
to extinguish the original debt, the rights of the creditor are
gone, and there are no rights as in this case to be subrogated
to. Pothier on Oblig. vol. 1, p. 280; Morse v. Campbell, 36
Vt. 364; JStna Ins. Co. v. Wises, 28 id. 95; Bassett v. Lock-
ard, 60 111. 164.
Subrogation, being but the creature of equity, will never
be allowed against a superior equity of a third person. Pa-
ter son v. Pope, 5 Dana, 241 ; Erb's Appeal, 2 Pen. & Watts,
296; Huston v. Bank, 25 Ala. 260; Kyner v. Kyner, 6 Watts,
221; Bank of Pennsylvania v. Potius, 10 Watts, 148; Crump
v. McMurty, 8 Mo. 408; Union Bank v. Edwards, 1 Gill &
Johns. 346 and 365; Hardcastle v. Commercial Bank, 1 Har-
rington, 374 and 378.
When both parties have an equal claim to the consideration
of a chancellor, no subrogation will be allowed. Ziegler v.
Louk, 3 Watts, 206; Withers v. Carter, 4 Grattan, 407; Wal-
lace's Estate, 9 P. F. Smith, 401.
When the equities are equally balanced no subrogation can
take place. Miller v. Jacobs, 3 Watts, 437.
The party seeking it must show a superior equity. McGin-
nis' Appeal, 4 Harris, 445 ; Winebrenner's Appeal, 6 Barr,
333.
It can not be enforced to the injury of an innocent pur-
chaser for value without notice. Mechanic^ B. and L. Asso-
170 Eicheson et al. v. Crawford et al. [Nov. T.
Opinion of the Court.
elation v. Conover, 1 McCarter, 219; Rush v. State, 20 Ind.
432; Douglas' Appeal, 12 Wright, 223; Reynolds v. Tooker,
18 Wend. 591; Riley v. Mayer, 2 Beasley, 351; Williams v.
Washington, 1 Dev. Eq. 157; Orvis v. Newell, 17 Conn. 97;
Wise v. Sheppard, 13 111. 41.
Mr. Justice Scott delivered the opinion of the Court:
It is set forth in this bill that Marion D. Hays was collec-
tor of taxes of Franklin county for the year 1867, and on
the 5th day of December of the same year gave bond as re-
quired by statute for the faithful performance of his duties as
such collector, which said bond was signed by complainants
with others as sureties for such collector. The bond of the
collector, so signed, was approved by the county court, was
correctly copied and entered on the records of the county,
and was forthwith forwarded to the Auditor of Public Ac-
counts, with the certificate of the county clerk, under the seal
of his office, showing such bond had been duly approved and
recorded. It is also alleged that a large sum of money came
to the hands of such collector which he failed to account for,
and afterwards a judgment was rendered against the collec-
tor and his securities for the amount due the county, which
judgment complainants paid and discharged.
It is further alleged, that the collector was in default in
regard to taxes due the State and by him collected, in a large
sum, for which the State recovered a judgment in the Supreme
Court, and by supplemental bill it is shown complainants have
paid and discharged the latter judgment.
It is shown, by appropriate allegations, that at the date of
the bond and the time of recording the same, the collector
was the owner of certain real estate described, and that he
afterwards became the owner of other real estate, all of which
lie sold and conveyed before either judgment was recovered
against him and his sureties for the respective sums due from
him for taxes to the county and State. As a ground of relief
it is charged that the bond of the collector, from and after the
1879.] Richeson et al. v. Crawford et al. 171
Opinion of the Court. *
time it was recorded, became a lien on all the real estate
which he owned at the time it was approved and recorded ;
and that it also became a lien upon all the real estate subse-
quently acquired by him, and that such lien is still in force.
The insolvency of the collector, and of one of his sureties,
who does not join in this bill, is alleged, and the prayer of
the amended bill is, that complainants be subrogated to all
the rights and benefits of the lien created in favor of the
State on the real estate of the collector described, by the
approval and recording of his bond; and that such real
estate be sold to pay complainants the amounts, with interest,
which they have paid as sureties for such collector, and for
general relief. A general demurrer interposed was sustained
and the bill dismissed, and that decision is assigned for error.
Numerous important questions have been discussed by coun-
sel, but we do not think all of them arise on the demurrer to
the bill, and we will only remark on sifch as do, in our opinion,
arise on the record as it comes before us.
The Revenue act of 1853, section 5, provides, "the collec-
tor's bond shall be approved by the county court, and shall
be correctly copied and entered on the records of said court,
and forthwith mailed to the Auditor of Public Accounts, with
the certificate of the clerk, under the seal of his office, show-
ing that said bond had been duly approved and recorded; said
bond, when approved and recorded, shall be a lien against the
real estate of such collector until he shall have complied with
the conditions thereof." That act was in force when the col-
lector^ bond in this case was signed, approved and recorded,
and it is under the section cited that complainants, by their
bill, seek to have a lien declared in their favor on the lands
of the collector owned by him at the time of making and
recording the bond, and in like manner upon all subsequently
acquired real estate, for the amounts they were compelled to pay
as sureties for such collector. Since then the act of 1853 has
been repealed, and section 134 of the Revenue act of 1872,
giving the same lien, enacted in its stead; but as we under-
172 Eicheson et al. v. Crawford et al. [Nov. T.
Opinion of the Court.
stand the repealing clause of the act of 1872, it expressly
provides the repeal of such act "shall not be construed to
impair any right existing."
Treating the lien created by the statute on the real estate
of the collector as a " right existing/' it seems clear a lien
exists in favor of the State, as if the act of 1853 had not
been repealed.
No construction could make the section of the statute cited
plainer than it is. It makes the bond of the collector, from
the time of its approval and recording, a lien on the real estate
of the collector until he shall have complied with its condi-
tions. Had the title to the property remained in the collector,
there might have been no necessity for invoking the aid of a
court of chancery, for it no doubt would have been the duty
of the sheriff to have exhausted the property of the principal
before levying upon that of the sureties; but the bill charges,
and of course the demurrer admits the allegation, the collec-
tor had previously conveyed all his property, and was then
insolvent. There was, therefore, no property of the collector
that the sheriff could seize on the execution in his hands before
proceeding against the property of his sureties. Had the State
found it necessary to avail of the lien given by the statute
against the property of the defaulting collector, a court of
equity would be the appropriate and, indeed, the only forum
where such lien could be established on the property the col-
lector had owned, in the hands of subsequent purchasers.
There being no property of the collector the title to which
was in his name, the sheriff could rightfully seize the prop-
erty of the sureties in satisfaction of the execution in his
hands; and whether there was in fact any levy upon the prop-
erty of the sureties, payment was made under coercion, and it
was not in any just sense a voluntary payment on the part of
complainants.
That the State would have had a lien on the real estate of
the collector for the amount of his defalcation, admits of no
doubt, unless that right has been lost by some act done; and
1879.] Eicheson et al. v. Ckawford et aL 173
Opinion of the Court.
the only question in the case is, whether complainants can be
subrogated to whatever rights the State may have had. No
reason is perceived why they may not be. Having paid the
sums due the county and State from their principal, it is
equitable the sureties should be subrogated to all rights the
State had to coerce payment from the defaulting officer. The
lien given by the statute was to secure the payment of the
taxes; and if the sureties of the officer, under what is the
same thing as coercion, are compelled to make up the deficit
in his accounts, it seems they should have the same benefits
of the statutory lien the State would have had in the premi-
ses. It is clear the property of the collector is the primary
fund out of which all defalcations in the payment of taxes
are to be made up, and the very object of creating the lien
was to secure the property of the collector for that purpose.
No doubt the sureties take upon themselves the obligations
imposed by the bond, in view of the fact the real property of
the principal is secured by a lien given by a positive statute
as indemnity against loss on account of the non-performance
of its conditions. Otherwise, they might not have been will-
ing to take upon themselves such onerous obligations unless
the property of the collector was held as the primary security
by the lien created. The sureties having paid the amount of
taxes to the State and county for which their principal was
liable on his official bond, what reason can be assigned why
they may not have the benefit of the property of the collector
secured by this statutory lien for their own indemnity, in like
manner as the State would have been entitled to it? It seems
to us it is the exact case where the doctrine of subrogation
applies, as that doctrine is defined in the books. It is well
understood law that where a mortgage is taken from the prin-
cipal as further security, the property embraced in it is to be
held not only for the benefit of the creditor, but for the
indemnity of the surety. It is the right of the surety, when
he pays the debt of his principal, to be subrogated to what-
ever security the creditor had. That principle has its appli-
174 Richeson et al. v. Crawford et al [Nov. T.
Opinion of the Court.
cation here. The lien given by the statute is in the nature
of additional security for the faithful performance of the
duties of the collector, and the property secured and covered
by the lien is not only for the benefit of the State, in case of
defalcation on the part of the officer, but as indemnity to his
sureties in case they are compelled to make up the deficiencies
in the collector's accounts; and unless the doctrine of subro-
gation applies, the sureties, who have made good the losses
sustained, can have no. remedy.
In Hunter v. The United States, 5 Peters, 173, it was de-
clared, "the same right of priority which belongs to the
government attaches to the claim of an individual who, as
surety, has paid money to the government."
In The United States v. Hunter et al. 5 Wash. 446, it was
held, under the sixty-fifth section of the Duty act of March
2, 1799, the surety, having discharged the bond for duties to
the United States, was entitled to whatever preference the law
secured to the United States, to be first paid out of the estate
of the principal.
In this case, complainants were judgment debtors to the
people, for the use of the county and State, and having paid
the debt due from their principal, on the plainest principles
of natural justice, they ought to be subrogated to all the rights
the State had to coerce payment from the principal out of his
property.
Exactly what may be the extent of the lien given by the
statute, or whether it embraces subsequently acquired real
estate as well as that owned by the collector when his bond,
as such, was approved and recorded, are questions we need
not now discuss. They can be more readily determined when
the exact facts shall be made known by the answer, and
whether the property sought to be subjected to the lien of
the statute was obtained by purchase for cash, or by exchange
of property as is suggested was the fact.
Nothing appears on the face of the bill that indicates com-
plainants have unreasonably delayed their application for the
1879.] Beaver v. Slanker, Admr. 175
Syllabus.
aid of the court in the premises. Whether the State or com-
plainants have been guilty of such laches as ought to bar
relief can be more understandingly discussed when the facts
shall be developed in the answer and by such testimony as
shall be offered.
The suggestion the fifth section of the .Revenue act, that
gives the lien in such cases, contravenes public policy by cre-
ating a species of secret liens calculated to result in wrong
and injury to the citizen, finds no sanction in any fair con-
struction of the law. The lien given is created by a public
law, and is evidenced in particular cases by the bond, which
is a matter of public record. Any one, therefore, who is about
to purchase real estate from the collector of revenues is put
on his guard by the public records; and if he avails of the
information within his reach, he may readily protect himself
against a lien created by a public law.
The decree will be reversed and the cause remanded.
Decree reversed.
John C. Beaver
v.
Gideon Slanker, Admr., etc.
1. Subrogation — generally — and as to rights of a surety, and a purchaser from
surety. Where, at the time when the obligation of a principal and surety is
given, a mortgage also is made by the principal to the creditor as an addi-
tional security for the debt, if the surety pays the debt he will, in equity, be
entitled to have an assignment of the mortgage and to stand in the place of
the mortgagee, and the mortgage will remain a valid and effectual security
in favor of the surety for the purpose of reimbursing him, notwithstanding
the obligation is paid. The mortgage is regarded as not only for the creditor's
security, but for the surety's indemnity as well.
2. A mere stranger or volunteer can not, by paying a debt for which
another is bound, be subrogated to the creditor's rights in respect to the
security given by the real debtor; but if the person who pays the debt was
176 Beaver v. Slanker, Admr. [Nov. T.
Syllabus.
compelled to do so, for the protection of his own interests and rights, the
substitution should be made.
3. Where a debtor gives personal security for his debt and also a mortgage
on his land to the creditor, who recovers judgment against both the principal
and surety upon the note given, which becomes a lien upon the land of the
surety, and the surety then sells his land by warranty deed to another, after
which his land so purchased is sold in satisfaction of the judgment, and the
purchaser is compelled to purchase the certificate of purchase to save his land,
and takes an assignment of the mortgage, the grantee of the surety so
paying will be entitled to be subrogated in equity to the rights of the cred-
itor, and to have the mortgage foreclosed to indemnify him for the sum so
paid by him.
4. Where a person gives a note with personal security for a debt, and also
a mortgage on his land as a further security, the surety, or his grantee of land
upon which a lien was created by judgment for the debt before the execution
of his deed, who is compelled to pay a portion of the debt, will be entitled to
have the mortgage, if duly recorded, foreclosed as against purchasers of the
mortgagor, the record of the mortgage being notice to them when they pur-
chased.
5. Notice to purchaser, of suretyship. Where a party derives title to land
through an administrator's sale under an order of court, and from the pur-
chaser at that sale, and the record of the court shows that the sale was to be
on credit and that the purchaser was to give a mortgage on the land purchased
and a note with personal security, and a sale to the grantor of the party who
alone gives a mortgage, this will be sufficient notice to such party purchasing
from the mortgagor that he was the principal and the other persons signing
the note were his sureties.
6. Chancery — variance in bill and proof. Where a bill in chancery alleged
the recovery of a judgment on or about the day of November, 1872,
against several, which became a lien upon the lands of one from whom the
complainant afterwards purchased, while the proof showed that the judgment
was recovered in April, 1869: Held, that the allegation of the time of obtain-
ing the judgment was not of a descriptive character of the judgment, and
that the variance was not material, the substantial question being whether
the judgment became a lien on the land before its purchase. So, it is no
fatal objection that the amount of the judgment is not correctly given, when
it was in fact for more than is stated.
7. Mistake — and notice thereof to purchasers. Where the name of
the mortgagee is by mistake written in the blank for the mortgagoi', and the
name of the mortgagor in that left for the mortgagee, but is signed by the
right party, and purports to secure a debt from the party signing to the
other, and is acknowledged by the party signing, the mistake in the trans-
1879.] Beavek v. Slanker, Admr. 177
Statement of the case.
position of the names of the parties being palpable, its record will be notice
to subsequent purchasers from the mortgagor of the mistake.
8. Same — correcting on foreclosure under bill. "Where a bill to foreclose a
mortgage alleges a mistake therein in the transposition of the names of the
parties in the commencement, but does not ask specifically for its reformation,
and the decree finds the fact of the mistake, but does not in express terms
order its correction, but orders a sale, this will be treating the mortgage as
corrected, and may be done under the general prayer.
Writ of Error to the Appellate Court of the Fourth
District.
In the year 1866, Victor Buchanan, as administrator de
bonis non of the estate of John C. Riley, deceased, in pursu-
ance of an order of the county court of Lawrence county,
sold at public sale divers tracts of lands belonging to the
estate of said Riley.
Israel A. Powell became the purchaser for the price of
$4178. The order of sale made by the county court re-
quired notes, with approved personal security and a mortgage
on the lauds sold, to be given to secure the payment of the
purchase money. Powell accordingly, on July 14, 1866, gave
to Buchanan, administrator, his note for the purchase price
named, with Johnson and Abernathy as sureties, and also a
mortgage on the lands purchased, to secure the payment of
the note, the mortgage being duly recorded.
In April, 1869, Buchanan, administrator, obtained a judg-
ment in the circuit court of Lawrence county on the note for
a remaining unpaid portion thereof, against Powell, Johnson
and Abernathy. Johnson at that time held land upon which
the judgment became a lien.
The judgment was made upon execution out of Powell's
property, except about $500, which remained unsatisfied until
in 1873. In 1870 Johnson sold and conveyed his land,
which was subject to the lien of this judgment, to Gustave
Klein worth, by deed, with full covenants of warranty. In
1873 an execution issued upon the judgment was levied upon
this land so sold by Johnson to Klein worth, as the land of
12—94 III.
178 Beaver v. Slanker, Admr. [Nov. T.
Statement of the case.
Johnson, a co-defendant in the judgment, bound by the lien
of the judgment, and the land was sold under the execution
February 2, 1874, to D. L. Gold, for $603.40, and the execu-
tion was returned March 1, 1874, as satisfied in full by such
sale. Gold was the administrator of the estate of Henrietta
Riley, one of the two children and heirs of John C. Riley.
On April 20, 1869, Buchanan, administrator of John C.
Riley, in settlement of the latter's estate, turned over and
assigned to Gold, administrator of the estate of Henrietta
Riley, the unpaid portion of said judgment, and at the same
time assigned to Gold the mortgage which had been given by
Powell to Buchanan at the administrator's sale by the latter.
In January, 1875, Kleinworth, the previous purchaser from
Johnson of the land sold under the execution, bought of
Gold his certificate of purchase of the land under the execu-
tion, paying him therefor $659, and Gold*assigned to Klein-
worth the certificate of purchase, as also the said mortgage.
The bill in this case was filed by Kleinworth, asking to be
subrogated to the rights of Victor Buchanan, administrator,
as the same stood before the said sale of said land under exe-
cution, and for the foreclosure of the aforesaid mortgage.
Kleinworth died during the progress of the cause, and in his
place Gideon Slanker, his administrator, was substituted as a
party.
Powell had made sale and conveyance of the several tracts
of land described in the mortgage, at different times to differ-
ent purchasers, Beaver being the last, on May 2, 1868.
The circuit court decreed in favor of the complainant to the
extent of the amount he paid Gold for his certificate of pur-
chase of complainant's land, and that the mortgaged lands be
sold for the satisfaction of such amount in the inverse order
of their alienation by Powell. On appeal by Beaver to the
Appellate Court for the Fourth District, the decree was
affirmed, and Beaver brings the case here on writ of error to
the Appellate Court.
1879.] Beaver v. Slanker, Admr. 179
Brief for Plaintiff in Error.
Mr. S. W. Short, for the plaintiff in error :
It is a settled rule that the decree must conform to the al-
legations in the pleadings as well as the proofs. Crocket v.
Lee, 7 Wheat. 522; Conwell v. McCowen, 53 111. 363; Morri-
son v. Tillson, 81 id. 607.
And however just the demand proven by the complainant
may be, if his proof does not harmonize with the allegations
of his bill he can not recover. Smith v. Axtell, Saxton, 494;
Piatt v. Vattier, 9 Pet. 405 ; Lindsy v. Ethridge, 1 Dev. &
Bat. Ch. 36.
It can not be contended that Kleinworth was in any sense
a surety for the payment of the debt secured by the mortgage.
Johnson and Abernathy were the only sureties. Therefore the
doctrine of subrogation can have no application to him. It
is confined to the relation of principal and surety, guarantors,
and to cases where a person to protect his own junior lien is
compelled to remove one which is superior, and to insurers
paying losses. Bishop etal.v. 0' * Conner et al. 69 111. 431;
Wilson v. Brown et al. 1 Beasley, 246.
Kleinworth was neither, but voluntarily purchased of John-
son long after the lien attached, and had constructive notice
thereof. He is not entitled to the dignity of a stranger pay-
ing the debt of another, much less that of a co-surety; and
even that relation would not entitle him to be subrogated to
the creditor's rights, without an agreement to that effect be-
tween him and the vendees of Powell. Sanford v. McLean,
3 Paige, 117; Banta v. Garmo, Sandford, 384; Wilkes v.
Harper, 1 Comstock, 586 ; The Bank of the United States et al.
v. Winslpw's Executors et al. 2 Brockenbrough, 252, 254;
Douglass v. Fogg, 8 Leigh, 588, 602. See, under the leading
case of Bering v. Earl of Winchelsea, (2) p. 115 of 1 White
& Tudor's Leading Cases in Equity.
But the mortgage itself is inoperative as against appellant.
It is, in legal effect, a deed from Buchanan to Powell, as, in
the granting clause, Buchanan is the grantor and Powell the
grantee; and the fact that Powell signed and acknowledged
180 Beaver v. Slanker, Admr. [Nov. T.
Brief for Plaintiff in Error.
the deed does not change its character as a notice to others.
It purports on its face to be a conveyance from Buchanan to
Powell, and the recording of it was notice of that fact, and
was not notice of a conveyance from Powell to Buchanan.
And in such case, before the mortgage can be reformed as
against appellant, it must be averred in the bill and proven
that he purchased with actual notice of the mortgage and
mistake therein.
In cases of mistake in written instruments as against bona
fide purchasers for a valuable consideration without notice,
courts of equity will grant no relief. Story Eq. Jur. sec. 165;
Sickmon v. Wood, 69 111. 331. There was no such allegation
and no such proof in this case.
There is no prayer in the bill for the reformation of the
mortgage, and none has ever been made. Buchanan, as admin-
istrator, made no attempt at its reformation or foreclosure
during his administration, but elected to proceed to judgment
at law upon the note against the joint makers thereof, which
became a lien upon Johnson's land as aforesaid long before
Kleinworth's purchase, — and as between Kleinworth and
Beaver the equity is with the latter, for Kleinworth had legal
notice of the lien of the judgment upon his land when he
purchased it, but Beaver had no notice of the mortgage, but in
good faith paid the value of his land to Powell, as appears
upon the face of said conveyance from Powell and wife to
him. And complainant having wholly failed to show, by
proof or otherwise, that Beaver was not a bona fide purchaser
in good faith for a valuable consideration, with actual notice
of said mistake in said mortgage, the same can not be cor-
rected to afford the relief decreed. The complainant's bill is
defective. It has the peculiarity that there are no two alle-
gations of material matter that harmonize with each other,
much less with the evidence adduced.
1879.] Beaver v. Slanker, Admr. 181
Brief for Defendant in Error.
Messrs. Wilson & Hutchinson, for the defendant in error :
In the body of this mortgage the name of the mortgagor
was by mistake written in the blank left for the name of the
mortgagee, and the name of the mortgagee in the blank left
for the mortgagor; but the mortgage is in all other respects
correct. It was signed, sealed and duly acknowledged by
Powell as the grantor therein, and showed upon its face that
the exchange of names in it was a clerical error, and it pur-
ported to be a mortgage on this identical land and for the
true amount of money.
It is also urged that the sale of Johnson's land on execu-
tion for the full amount of the judgment was a satisfaction
of the judgment, and that the " payment of a debt which
is secured by a mortgage is a satisfaction of the mortgage."
This is a fallacy, — a good rule falsely applied. The payment
of a debt by a personal surety is not a satisfaction of the mort-
gage, but only transfers it.
It is also urged that Kleinworth has no right here because
"there was no assignment of the note, which is always neces-
sary to carry the mortgage." We answer, there was no note
to assign. It had been merged in the judgment, and the
certificate of purchase issued in pursuance of sale under that
judgment represents the same debt; and its assignment, with
the accompanying agreement, carried with it the mortgage,
just as the assignment of the note would have done before it
was merged.
Having, then, a valid mortgage (capable of being reformed
and enforced) which was not satisfied in equity, the only
remaining question is, can Kleinworth be subrogated so as to
be reimbursed out of the mortgage security, there being no
lispute that he has paid the mortgage debt.
It neeols neither argument nor citations to establish the
point that if either of the sureties on Powell's note had been
compelled to pay it, by suit or otherwise, the mortgage would
not thereby have been extinguished, but would by operation
of law have been transferred to the paying surety. Phares
182 Beaver v. Sl anker, Admr. [Nov. T.
Opinion of the Court.
v. Barbour, 49 111. 509. That furnishes the most usual ground
for subrogation. But here, the judgment became a lien on the
land of Johnson, one of the sureties; and Kleinworth, a pur-
chaser from this surety, was, by reason of the insolvency of
the surety, compelled to pay the debt, or lose a farm worth
ten times the amount of the debt. This was no voluntary
payment. The surety on the note was, in legal contemplation,
secured against loss, by the mortgage. The money was made
out of his land; but to save the title of this land, Kleinworth
advanced the money, under an agreement that he should be
reimbursed out of the mortgage security. Bouvier's Diction-
ary, title, Subrogation; 2 Binney's Rep. 382; White's Lead-
ing Cases in Eq. 60-72.
Mr. Justice Sheldon delivered the opinion of the Court:
As a mere assignee alone of the mortgage, the complainant
might not be able to sustain this decree in his favor, as the
judgment for the mortgage debt was satisfied in full by the
sale under execution of Kleinworth's land.
But, upon the doctrine of subrogation, we think there is
sufficient support for the decree.
It is the undoubted principle of equity, that if, at the time
when the obligation of the principal and surety is given, a
mortgage also is made by the principal to the creditor, as an
additional security for the debt, then, if the surety pays the
debt, he will be entitled to have an assignment of the mort-
gage and to stand in the place of the mortgagee, and that the
mortgage will remain a valid and effectual security in favor
of the surety for the purpose of obtaining his reimburse-
ment, notwithstanding the obligation is paid. The mortgage
is regarded as not only for the creditor's security, but for the
surety's indemnity as well. 1 Story Eq. Jur. § 499; Rogers
v. School Trustees, 46 111. 428; Phares v. Barbour, 49 id. 370;
Jacques v. Fachiey, 64 id. 87 ; City National Bank of Ottawa
v. Dudgeon, 65 id. 12; Bishop v. 0' Conner, 69 id. 431.
1879.] Beaver v. Slanker, Admr. 183
Opinion of the Court.
There can be no question, in the case of Johnson himself,
the surety, had the land been sold while he owned it, in satis-
faction of the judgment, that he would have been entitled to
maintain such a bill as the present. The only doubt is,
whether the principle in question, of subrogation, applies in
favor of a purchaser of the land from Johnson, the judgment
against the latter being a lien upon the land purchased. We
are of opinion it does. Kleinworth did not make the pay-
ment which he did for the certificate of purchase of his land,
as a mere stranger or volunteer, but he made it standing in
privity with Johnson, the surety, as his assignee of land in-
cumbered with the lien of the judgment against Johnson as
surety; and he made it compulsorily, to save to himself his
land which had been sold as being bound by this judgment
lien. In Hough v. JEtna Life Insurance Co. 57 111. 318, and
in Young v. Morgan, 89 id. 199, this court recognized the
doctrine that a mere stranger or volunteer could not, by pay-
ing a debt for which another is bound, be subrogated to the
creditor's rights in respect to the security given by the real
debtor; but that if the person who paid the debt was com-
pelled to pay, for the protection of his own interests and
rights, then the substitution should be made.
Further, the present proceeding is in the interest of the
surety, Johnson, it being in the indirect assertion of his right
of indemnity from the mortgaged premises. Johnson sold
and conveyed to Kleinworth with covenant of warranty, and
so was responsible to the latter for the goodness of the title.
Kleinworth, instead of resorting to Johnson, on the latter's
covenant of warranty, and leaving Johnson to have recourse
over to the mortgage, proceeds directly against the mortgaged
property, which is ultimately liable for the mortgage debt,
and in obtaining satisfaction therefrom for the portion of the
mortgage debt the sale of his land discharged, secures full
indemnity for the surety, Johnson, and thus avoiding circuity
of action.
And this meets the suggestion, that, in relief of the appel-
184 Beaver -v. Sl anker, Admr. [Nov. T.
Opinion of the Court.
lant and other purchasers from Powell, the recourse of Klein-
worth should have been against Johnson on his covenant of
warranty. If that had been done, then Johnson himself would
have been subrogated to the rights under the mortgage, so
that, in the end, the result to appellant would have been the
same — the subjecting of the mortgaged premises. There is,
besides, reason to believe that suit upon the covenant of war-
ranty would have been unavailing. Johnson has deceased,
and the records of the probate court show his estate to be
insolvent. To be sure, this showing is in respect of person-
alty only, and there is a possibility of the decedent having
left lands which might respond upon the covenant of war-
ranty; nothing appears as to this.
The circumstance of Powell having sold the mortgaged
lands, and they now being in the hands of purchasers from
him, should make no difference. Such purchasers occupy no
better position than Powell himself. The mortgage was upon
record, and they bought with notice that the lands were mort-
gaged; that they stood as security for the payment of this
mortgage indebtedness, and as indemnity to the sureties
against its payment, and that they were liable to be resorted
to and sold for the purpose of such security and indemnity.
They are now proceeded against but for such purpose, and
these purchasers have no equitable cause of complaint.
If it be regarded important that they should have had
notice that Johnson and Abernathy were sureties only, we
think they were chargeable with such notice.
The proceedings of the county court under whose order of
sale the administrator's sale of these lands of Riley was made,
were a link in the chain of title of the mortgaged lands, and
purchasers from Powell must be held as having notice of
them. These proceedings show that the sale was to be on a
credit, and that the purchaser was to give a mortgage on the
land purchased, and a note with personal security; they show
the sale of the lands to Powell, and Powell alone gives the
mortgage on the lands purchased. These circumstances, we
1879.] Beaver v. Slanker, Admr. 185
Opinion of the Court.
think, afford notice that Powell was the principal in the trans-
action, and Johnson and Abernathy but his sureties. The
answer of Beaver, too, admits such suretyship.
There are some minor questions made, which remain to be
considered.
The bill alleges, under a videlicet, that the judgment was
obtained against Powell, Johnson and Abernathy about the
day of November, 1872. The proof shows it was ren-
dered in April, 1869. It is insisted that in this respect there
is a fatal variance between the allegations and proof.
The bill alleges the events correctly; that the judgment
became a lien upon this land of Johnson, which he then
owned, and that he afterward sold the land to Kleinworth.
The allegations of the bill and the proofs show that the
judgment became a lien upon the land while owned by John-
son, and before his conveyance of it to Kleinworth. The
allegation as to the time of obtaining the judgment is not one
of a descriptive character as respects the judgment, and does
not purport to state with exactness the time when it was
recovered. We find no merit in this objection.
The same maybe said in regard to the amount of the judg-
ment. The allegation of the bill is, that the judgment was
obtained "for the sum of, to-wit: about $500 and costs of
suit, being, in all, a sum not now known to your orator."
The proof shows the amount of the judgment to have been
$2562.44.
A further objection is, in respect of a mistake in the mort-
gage from Powell to Buchanan. In the body of the mort-
gage, in the granting part, the name of the mortgagor appears
written in the blank left for the name of the mortgagee, and
the name of the mortgagee in the blank left for the mortgagor,
the mortgage in all other respects being correct. It is urged
that, although as between the parties to the mortgage, this
was a mistake that might have been corrected, yet, as against
Beaver, an innocent subsequent purchaser from Powell of the
mortgaged land, he not knowing of the mistake, the mortgage
186 Cummings et al. v. Mugge. [Nov. T.
Syllabus.
could not be reformed; that he, not having such knowledge,
would be entitled to hold the land unaffected by the mortgage,
and so was not compelled to pay the mortgage debt, for the
protection of his title to the land. We think Beaver had
notice of the mistake from the recording of the mortgage.
The mortgage was signed by Powell, not Buchanan; it
purported to secure a debt from Powell to Buchanan, not one
from Buchanan to Powell; and the certificate of acknowledg-
ment expressed that the mortgage was acknowledged by
Powell. The mistake in the transposition of the names of
mortgagor and mortgagee was palpable upon the face of the
mortgage.
It is objected that there is no prayer in the bill for the
reformation of the mortgage, and no decree made therefor.
The bill does not ask specifically for the correction of the
mistake, nor does the decree by express words order the cor-
rection of the mistake; but the bill alleges the mistake, and
contains the general prayer for relief; and the decree finds
the fact of the mistake, and, if not in terms decreeing its cor-
rection, it treats it as corrected, in declaring the mortgage to
have been, made by Powell, and the mistake in it to be ap-
parent upon reading the whole mortgage, and ordering the
sale of the mortgaged land for the satisfaction of the mort-
gage debt. We find nothing substantial in this objection.
The decree will be affirmed.
Decree affirmed
Cummings, Kenney & Co.
v.
George Mugge.
1. Injunction — measure of damages on dissolution. On an assessment of
damages, after the dissolution of an injunction, the dismissal of the bill and
dissolution of the injunction are conclusive evidence that the writ was wrong-
fully sued out. Where the defendant was enjoined from taking possession of
1879.] Cummings et al. v. Mugge. 187
Briefs for the Appellants and the Appellee.
lumber claimed by him, for about three weeks, the damages recoverable are
only such as will cover his injury by the delay caused and the expense neces-
sarily incurred in procuring the dissolution of the injunction.
2. The sureties in the injunction bond are not liable for wrongs suffered by
the defendant, during the time the injunction was in force, by unlawful acts
of the complainant, other than the improvident act of suing out the writ.
They are not liable for the tortious acts of the complainant in taking and
converting the property during the pendency of the injunction.
Appeal from the Circuit Court of Saline county; the Hon.
Monroe C. Crawford, Judge, presiding.
Messrs. Crebs & Conger, for the appellants, contended,
from the evidence, commented on at length, that during*the pen-
dency of the injunction 184,493 feet of appellant's lumber was
taken by the appellee, and sold beyond the reach of appellants,
in consequence of the wrongful suing out of the writ, for
which appellants were entitled to damages at the contract
price of $38 per 1000, making for that item $7010.73, and in
not allowing this the court erred, and also erred in not allow-
ing anything for the time and traveling expenses of Gravett
as agent for appellants.
Appellee wrongfully and without cause, as admitted by dis-
missing his bill,, sued out the writ, and appellants were com-
pelled to send their agent, whose regular wages was $8.50 per
day, to take testimony and look after their interests in the case,
in all 43 days, making $365.50. The testimony stands
uncontradicted that this sum has been paid in consequence of
.the wrongful suing out of the writ of injunction, and yet the
court refused to allow any damages on that account, and only
allowed the sum of $500 attorney's fee in the case.
Mr. Andrew D. Duff, for the appellee, insisted there was
but one single item in the suggestion of damages upon which
evidence could properly be heard, and that the attorneys' fee,
for which the court allowed $500.
Under the statute the expenses, etc., of the party can not
be allowed, nor extravagant attorney's fees. Collins et al. v.
188 Cummings et al. v. Mugge. [Nov. T.
Opinion of the Court.
Sinclair, 51 111. 350; Town of Tamaroa v. S. M. N. U. 54 id.
334.
The bill of exceptions and record wholly fail to show this
court that it contains all the evidence heard by the court
below, and the only question before the court is whether the
finding of the court below is in conformity with the evidence
heard by it. This court will not review the evidence unless
the bill of exceptions upon its face purports to set forth all the
evidence. Webster v. Eiifield, 5 Gilm. 298; Clark v. Willis,
16 111. 61; McCormick v. Gray, id. 138; Esty v. Grant, 55 id.
341; Rowan v. Bosh, 4 Scam. 460; Bates v. Bulkley, 2 Gilm.
389.
Mr. Justice Dickey delivered the opinion of the Court:
On the 30th day of January, 1874, George Mugge, the
appellee, filed a bill in chancery in the circuit court of Galla-
tin county, against Cummings, Kenney & Co., appellants,
charging that complainant, who resided in Shawneetown, was
the owner of about 500,000 feet of black walnut lumber, worth
about $15,000, stacked on the bank of the Wabash river at a
point about 18 miles from Shawneetown, and that defendants,
by their agent, one Gravett, were about to* seize and take
away the lumber, claiming, contrary to the truth, that it was
then their property, (setting out the alleged circumstances
under which the alleged false claim of property was set up by
the appellants.) It was also charged in the bill that the
location of the lumber in question was such that the same,
could easily be removed with boats and barges before the aid
of the law could be invoked, and stating that appellants were
residents of Massachusetts, and that their agent, Gravett, was
of doubtful solvency. The prayer of the bill was for an
injunction restraining appellants, their agents, servants, etc.,
from removing or in any manner intermeddling with said
500,000 feet of lumber, and for other relief. This bill was
verified by the oath of appellee. On application to the judge
of the circuit court on the same day, an order for the issue
1879.] Cummings et al. v. Mugge, 189
Opinion of the Court.
of the writ of injunction was made upon the execution of a
bond, and on the same day the bond with sureties was given
and the writ issued.
On the 24th of February, 1874, on motion of appellants,
the injunction was dissolved by order of the circuit court
made at chambers.
Thereupon appellants filed their suggestion of damages and
presented testimony to prove the same, and moved the court
for an allowance of the same.
This claim for damages embraced —
Alleged value of 200,000 ft. of lumber, - - $8400
Wages of agent, ------ 153
Wages of watchman, ----- 25
Cost of telegrams, ----- 60
Traveling expenses, ------ 49
----- 18
Interest on value of lumber, 70
Attorney's fees, ------ 1000
Total, -- $9721
On the 26th of May, 1874, complainant, in open court, by
leave of court, dismissed his bill without prejudice and at his
costs, but the court retained the case for the assessment of
appellants' damages.
On June 4, 1874, after the bill was dismissed, appellants
filed an answer.
On June 14, 1874, on application of appellants, the venue
was changed to Saline county.
In their answer appellants aver, that of the lumber so on
the bank of the river when the bill was filed, some 150,000 to
200,000 feet was the property of appellants, worth from $6000
to $8000 — and say that Mugge was and is of doubtful solvency,
— and that on the 28th of January, 1874, Mugge having
taken possession of appellants' lumber, they sued out a writ
of replevin for said lumber, and placed the same in the hands
of the sheriff to execute, and that the sheriff on that day
190 Cummings et al. v. Mugge. [Nov. T.
Opinion of the Court.
took possession of said lumber, and afterwards and on the
30th of January, 1874, while the lumber was so in the posses-
sion of the sheriff, the injunction in this case was issued.
The answer further says, that since the issuing of the writ
of injunction, the appellee has taken possession of said lumber
and removed it out of this State, and to parts unknown.
On the suggestion of damages, proofs were taken and such
proceedings had, from time to time, that at the May term,
1876, the matter was heard by the circuit court of Saline
county, and appellants' damages assessed at the sum of $500,
and judgment was entered against the appellee for such dam-
ages and for costs.
Appellants bring the record here, and seek a reversal of this
judgment upon the ground that the damages are not so large
as they had a lawful right to have assessed.
Appellants, by their counsel, claim that the proofs taken
show that the lumber in question was their property, and that
while they were restrained by the injunction from meddling
with the same, appellee wrongfully took and disposed of the
same to his own use, and that the necessary expense of col-
lecting and presenting this proof upon the assessment of
damages was large; and counsel insist that appellants were
entitled by law to have the value of the lumber and these
expenses included in the assessment of damages.
This position can not be sustained. The service of the
writ of injunction in no way authorized or caused the wrong-
ful act of appellee, in taking and converting the property.
The dismissal of the bill and the dissolution of the injunction
were conclusive that the injunction was wrongfully sued out.
The only question on the assessment of damages was, (assum-
ing the appellee to have been all wrong in suing out the
injunction) to what extent were appellants injured by being
delayed some three weeks in taking and caring for the lumber
and in procuring a dissolution of the injunction. Wrongs
suffered during that time by unlawful acts of appellee, other
than the improvident act of suing out the injunction, consti-
1879.] Welsch v. Belleville Savings Bank. 191
Syllabus.
tute no part of the damages caused by the injunction. The
sureties who joined in the injunction bond did not thereby
make themselves liable for damages resulting from any wrong-
ful acts of appellee, which he had done or might thereafter
do, save damages which naturally resulted from the legal
effect of the writ of injunction.
The decree of the circuit court must be affirmed.
Decree affirmed.
Barbara Welsch
V.
The Belleville Savings Bank.
1. Will — construction according to intention. Subject to a few exceptions,
the principle is firmly established that a will shall be so construed as to
effectuate the intention of the testator as far as possible; and in cases of doubt,
the scope of the instrument should be considered and its various provisions
compared one with another in ascertaining such intention. To this funda-
mental rule of construction all others, with but few exceptions, must be subor-
dinated.
2. Under the influence of this rule the express words of a will must some-
times yield to the manifest intention of the testator, and even words will be
added when it is necessary to effectuate such intention. But courts, under
pretence of construction, have no right to either reject or supply words, except
when it is absolutely necessary to avoid an absurdity and give effect to the
manifest intention of the testator.
3. The general rule is, that whenever it can possibly be done, a will should
be so construed as to give effect and operation to every word and provision in
it. Therefore, when the language is clear and unambiguous, and there is no
conflict in its various provisions, and no absurdity will thereby be involved,
the will should be given effect according to the literal terms used, taken in
their general and popular sense, except where technical terms are used, in
which case they should be taken in their technical sense, unless the context
shows they are used in a different sense.
4. Same — will construed, as to character of estate devised. Where a testator
devised all of his estate to his wife "for her own free, independent and
uncontrollable use and benefit for the term of her natural life," and that she
might at her own wish at any time divide the same among her or her and the
192 Welsch v. Belleville Savings Bank. [Nov. T.
Syllabus.
testator's children or grandchildren, provided that his grandchild A should
receive from the estate the wife might leave at her death, the sum of $4000
before such estate should be divided, and besides this his equal share of the
remainder, it was held, that the wife took only a life estate in the use of the
property, and that the grandson A took a vested interest as to the sum of
$4000, but that the interest of A and the other children and grandchildren
in the remainder was not to commence until her decease, unless she volunta-
rily saw fit to make the division before her death.
5. Where a devisee for life of the free use of the testator's entire estate is
expressly authorized to divide the estate among the children and grand-
children of the testator and the devisee, his widow, it by implication strongly
negatives a purpose to authorize her to dispose of the estate in any other
manner or to any other persons. Ezpressio unius est ezclusio alterius.
6. Same — when limitation over is void. Where, by the terms of a will,
there is given to one an estate, with unlimited power of selling or otherwise
disposing of the same in such manner as the devisee may think fit, a limita-
tion over is inoperative and void by reason of its repugnancy to the principal
devise. But this doctrine has no application to a case where a life estate
has been given to the first taker in express terms.
7. Same — when power of disposal does not give absolute fee. It may be laid
down as a general rule, that in all cases where by the terms of a will there
has been an express limitation of an estate to the first taker, for life, and a
limitation over, any general expressions apparently giving the tenant for life
an unlimited power over the estate, but which do not in express terms do so,
must be regarded as referring to the life interest only, and therefore as limited
by such interest.
8. Same — when property devised for life must be converted into money. It
may be stated as a general rule, that where personal property is given to one
for life with a limitation over to another and is not specifically given, and is
liable to perish or greatly deteriorate in value by keeping or using the same,
and there is nothing to indicate an intention that the property shall be
enjoyed in specie by the tenant for life, a court of equity will, on the applica-
tion of the remainder-man, require the property to be converted into money
and properly invested, giving the tenant for life all accumulations and
reserving the principal for the remainder-man.
9. When chattels are specifically given to the tenant for life he is of
course entitled to their possession and use, and so long as they are used with
ordinary care and prudence, the remainder-man can not be permitted to inter-
fere, even though the use may altogether defeat his future enjoyment of the
property.
10. But when a testator gives to one for life a certain sum of money out
of his estate, with a limitation over to another, the former has no right to the
possession of the money tnus bequeathed. The title thereto devolves upon the
1879.] "Welsch v. Belleville Savings Bank. 193
Syllabus.
executor, and it is his duty to see that the same is properly invested, and that
the annual accumulations are paid over to the tenant for life and the principal
to the remainder-man upon the death of the tenant for life. United States
bonds will be treated as money judiciously and properly invested by the
testator.
11. Remainder — in chattels. Originally, where a chattel or other personal
estate was given to one for life, with a limitation over to another, the former
took the absolute title, and the limitation over was void, both at law and in
equity. But in the course of time equity interposed in behalf of the remain-
der-man, holding the limitation over good as an executory devise, but not as a
remainder. At first this rule in equity was confined exclusively to disposi-
tions by will of chattels real, where the use had been given to tenants for life.
But now courts of equity have adopted the more reasonable doctrine that
where a chattel is given to one for life with a limitation over to another, the
first taker really acquires nothing but a right to the use. It is still doubtful
whether a remainder can be created by an ordinary deed, but such interests
may be limited by deeds of trust, in which case the trustee takes the legal
title.
12. The ancient doctrine which gave the tenant for life the absolute prop-
erty still prevails, both at. law and in equity, with respect to bequests of
specific things, the use of which consists solely in their consumption, such as
fruits, provisions, etc. The gift of such articles for life is said to be of
necessity a gift of the absolute property, because the use and property can
not exist separately.
13. Tenant for life — right to custody of money or United States bonds.
Where a testator devises all of his estate, real and personal, to his wife for life,
with remainder over to another after her death of $4000, the wife, unless exe-
cutrix, will have no right to the custody of moneys left by the testator, or
to United States bonds, which are in effect money, but only to receive the accu-
mulations of the same. And if such bonds come into her possession, whether
rightfully or not, and she by her written agreement places such bonds to the
amount of $4000 in the hands of a trustee to be reinvested in other bonds of
the United States, the interest thereon to be paid to her for life and the prin-
cipal at her death to be paid to the remainder-man, she can not afterward, as
tenant for life, disturb the trustee's possession of the substituted bonds, and
can not maintain replevin for the same.
14. Estoppel — to deny right of vested remainder. Where a party claims in
good faith a vested remainder in a bequest, of $4000, which the tenant for life
under the will entertains, and acknowledges its justice by an instrument
under her hand and seal, in which she agrees that a person as trustee shall
take $4000 of United States bonds left by the testator for her use for life, and
invest, them in other United States bonds, the interest thereon to be paid to
her during her life, and the principal to be paid to the party claiming the
remainder, which agreement is executed, and no fraud has been practiced
13—94 III.
194 Welsch v. Belleville Savings Bank. [Nov. T.
Statement of the case.
upon her to induce the execution of the agreement thus made, she will be
thereby estopped from afterwards denying the rights of the party so claiming
the remainder, and can not maintain replevin against the trustee for the
recovery of the substituted bonds.
15. Gift — when executed can not be recalled. A mere gift or voluntary
agreement is as binding as any other undertaking, when executed. If a party
voluntarily agrees to make a settlement of the principal of certain bonds
upon another, upon the delivery of the agreement in writing, and transfer of the
bonds in pursuance thereof, leaving nothing further to be done to complete the
gift, it will be to all intents and purposes an executed agreement, and the
gift can not be revoked.
Appeal from the Appellate Court of the Fourth District.
This was an action of replevin, brought by appellant against
appellee, to the September term, 1878, of the St. Clair circuit
court, for the recovery of certain United States bonds, amount-
ing in the aggregate to $4000. Among the pleas filed to the
declaration were the two following special pleas, designated as
first and second special pleas, to-wit:
And for further plea in this behalf defendant says actio non,
because it says that on the 25th day of February, A. D. 1878,
an agreement in writing was made between one Barbara
Welsch, the plaintiff herein, F. Herold, guardian for Arthur
Herold, and the defendant, under the respective seals of the
said parties, which was in words and figures following, viz:
"This agreement, made the 25th day of February, A. D.
1878, between Barbara Welsch, of the first part, and Ferdi-
nand Herold, guardian of Arthur Herold, of the second part,
and Belleville Savings Bank, party of the third part, witnesseth .
"That whereas Wolfgang Welsch, late of St. Clair county,
deceased, by his last will and testament, among other things
willed and bequeathed to Arthur Herold $4000, to have and
to hold the same upon the death of said Barbara Welsch, said
Barbara to have the free and uncontrollable use thereof during
her natural life. Now, therefore, it is agreed and stipulated
between the aforesaid parties that four United States 5-20 bonds
of the issue of March 3, 1865, of the par value of $4000 in the
1879.] Welsch v. Belleville Savings Bank. 195
Statement of the case.
aggregate, be deposited for safe keeping in the Belleville
Savings Bank; that Mrs. Barbara Welsch collect and receive
during her natural life the interest thereon, and upon her
death the said Arthur Herold to draw and receive the princi-
pal sum of $4000.
" The said Belleville Savings Bank agrees to receive and hold
said bonds as a special deposit, and to collect and pay the in-
terest accruing thereon to the said Barbara Welsch during her
natural life, and after her death to deliver said bonds to the
said Arthur Herold. The said Ferdinand Herold, for said
Arthur Herold, agrees to pay to said Belleville Savings Bank
any charge for safe keeping or collection of interest. Said
bonds, which are now called in for redemption by the United
States, are to be exchanged by the said bank for other United
States bonds at the best rate of interest that may be obtain-
able, and the bonds thus exchanged are to be held by the said
bank under and subject to this agreement. In virtue whereof
the said parties have executed this agreement in triplicate the
day and year first aforesaid.
"Barbara Welsch, [seal.]
"F. Herold, [seal.]
Guardian for Arthur Herold.
" Belleville Savings Bank, [seal.]
By Edward Abend, President."
Of which agreement one copy was delivered to said defend-
ant, and defendant avers that under the said agreement, and
by virtue thereof, the said bonds therein mentioned were
deposited by said plaintiff in said bank, and were exchanged
by the said bank for the bonds now replevied in this suit;
and defendant avers that under said agreement it is its duty to
hold said bonds during the. period of the natural life of said
plaintiff, which period has not as yet elapsed, and this the
defendant is ready to verify, wherefore it prays judgment, etc.
And for a further plea in this behalf defendant says actio
non, because it says that one Wolfgang Welsch died on the
— day of , A. D. 187-, and at the time of his death said
196 Welsch v. Belleville Sayings Bank. [Nov. T.
Statement of the case.
bonds were the property of said Welsch, and said Wolfgang
Welsch left a last will and testament, which was duly probated
in the probate court of said county and is now in full force,
and which is in words and figures as follow:
" I, Wolfgang Welsch, of the town of Mascoutah, of the
county of St. Clair and State of Illinois, of the age of sixty-
five years, and being of sound mind and memory, do make,
publish and declare this my last will and testament, in man-
ner following, that is to say:
" In consideration that in regard of claims of heritage my
children, three adult daughters, viz: Lisette Lucius, Therese
Rutz, Katharine Villinger, together with their husbands,
Rudolph Rutz and Theodore Villinger, declare themselves
already fully satisfied by the pecuniary supports, loans and
gifts received of me since many years until the present time,
as having received each and every one of them their justly
and equally distributed share:
"Now, therefore, I hereby give and bequeath all my estate,
of whatever the same may consist, to my wife, Barbara
Welsch, for her own free, independent and uncontrollable
use and benefit for the term of her natural life, and that she
may at her own wish at any time divide the same among her
or our children or grandchildren : Provided, however, that
my grandchild Arthur Herold shall receive from the estate
she may leave at her death the sum of $4000, before said
estate may be otherwise divided ; and besides this, that the
said Arthur Herold shall receive his equal share of the
remainder as well as any other one of our heirs.
" In witness whereof, I have hereunto set my hand and seal,
this 30th day of July, 1871.
Wolfgang Welsch, M. D. [seal.]
'Witness : Friedrich Jenning, Henry Beck."
And that under said will the use of all the property of said
Wolfgang Welsch was given to said Barbara Welsch for her
natural life, if she chose so to retain it, but with the privilege of
1879.] Welsch v. Belleville Savings Bank. 197
Statement of the case.
giving it or dividing it among her children or grandchildren,
with a preference to the amount of $4000 to one Arthur Herold,
her grandchild, at any time. And defendant avers that on,
viz, the 20th day of February, A. D. 1878, the said plaintiff
delivered bonds of the United States, of the value of $4000,
to said defendant, with directions to said defendant to exchange
said bonds for the bonds sued for, and to collect and pay the
interest due thereon from time to time to said plaintiff during
her natural life, and then deliver the same to said Arthur
Herold; and defendant avers that under said directions it
has taken possession of said bonds and exchanged them for
the bonds in said declaration mentioned, and holds said bonds
now, and this it is ready to verify, etc.
To which pleas the following replications were filed:
And the plaintiff, by way of replication to the plea of said
defendant secondly above pleaded, says precludi non, because
she says that the said Arthur Herold, in said plea mentioned,
died after the execution of said writing in said plea men-
tioned, and before demand made by said plaintiff upon said
defendant, and of which the defendant then and there had
notice, and this the plaintiff is ready to verify, wherefore she
prays judgment, etc.
And the plaintiff, by way of further replication to said
defendant's second plea, by leave of court, etc., says precludi
non, because she says that the said agreement in said plea
mentioned was null and void, and made without consider-
ation, and this the plaintiff is ready to verify, wherefore she
prays judgment, etc.
And the plaintiff, by way of replication to the defendant's
third plea, says precludi non, because she says that after the
making of said will in said plea mentioned, and before demand
made by plaintiff upon defendant for said bonds in plaintiff's
declaration described, and before the vesting of any interest
in said bonds in the said Arthur Herold, to-wit, on the —
day of , 1878, said Arthur Herold departed this life, of
198 Welsch v. Belleville Savings Bank. [Nov. T.
Opinion of the Court.
which the said defendant had due notice, and this the plaintiff
is ready to verify, wherefore she prays judgment, etc.
To these replications the court sustained a demurrer, and
the plaintiff electing to stand by her replications, final judg-
ment was rendered against her for costs, and a writ of retorno
habendo awarded.
This judgment, on appeal to the Appellate Court for the
Fourth District, was affirmed, and appellant by appeal brings
the record to this court, and assigns for error the affirmance
of the judgment of the circuit court by the Appellate Court.
Messrs. Hay & Knispel, for the appellant:
Messrs. G. & G. A. Kgerner, for the appellee.
Mr. Justice Mulkey delivered the opinion of the Court:
The argument in this case has been confined to the question
whether or not Arthur Herold took, under the will, a vested
remainder in the $4000 therein mentioned. And it seems to
be conceded that if such interest was taken by him, this action
was improperly brought and the Appellate Court committed
no error in affirming the judgment of the circuit court. Ap-
pellee claims that he did take such interest, and that appel-
lant, in depositing the fund with appellee for investment,,
safe-keeping and payment to her of the earnings and accumu-
lations thereof during her life, was simply performing a duty
which the law would have enforced on his application; and
that after having performed this duty she is bound by her
action, and will not be permitted to disturb the possession and
control of the fund so long as the trust is faithfully per-
formed. This we understand to be in substance the position
of appellee.
On the other hand appellant denies that Arthur Herold
took any such interest, but insists that by the provisions of the
will appellant was given power to dispose of the estate abso-
lutely, and that the grant of such power by necessary impli-
1879.] Welsch v. Belleville Savings Bank. 199
Opinion of the Court.
cation conferred upon her a fee simple interest, and that
hence the limitation over to Arthur was inoperative and
void; that at most he took a mere contingency or possibility,
liable to be defeated at any moment that appellant might
think proper to do so; and that, therefore, appellant had the
unquestioned and exclusive right to control the fund ; and
that appellee, as custodian, having no vested interest in it,
was bound to surrender it to her on demand, and that not
having done so, she has a right to maintain this action for its
wrongful detention. And this, as we understand, is substan-
tially the position of appellant.
We will consider the case on the grounds counsel have
placed it, and may possibly then give some additional views
upon a phase of it that has only in part been suggested by
counsel for appellee. Formerly wills were not construed by
the courts with the liberality they now are, in furtherance of
the intentions of testators. This is particularly true of de-
vises, properly so called; and even now, in those States in
which the legislature has not interposed by positive enact-
ment, there are still a few well recognized arbitrary rules of
construction that often defeat the manifest intentions of testa-
tors, among the most noted of which may be mentioned what
is known as the rule in Shelly9 8 case. The rule of construc-
tion established by that most celebrated of cases has perhaps
contributed more than all other causes combined to defeat the
manifest wishes and purposes of those who have attempted to
make dispositions of their estates by will. Subject to these
few exceptions, however, the principle is firmly established
and universally recognized that a will should be so construed
as to effectuate the intention of the testator as far as possible,
and, in cases of doubt, the scope of the instrument should be
considered, and its various provisions compared, one with
auother, in ascertaining such intention. To this fundamental
rule of construction all others, with the exceptions above
noted, must be subordinated. Under its influence, the express
words of a will must sometimes yield to the manifest inten-
200 Welsch v. Belleville Savings Bank. [Nov. T.
Opinion of the Court.
tion of the testator; and even words will be added where it
is necessary to effectuate such intention. Wright v. Dunn, 10
"Wheat, 204; Bartlett v. King, 12 Mass. 537; Buston v. Bus-
ton, 2 Dall. 244. But courts, under the pretence of construc-
tion, have no right to either reject or supply words, except
where it is absolutely necessary to avoid an absurdity or give
effect to the manifest intention of the testator; for courts have
no right to make a will either by rejecting some of its pro-
visions or by adding new ones, nor by placing upon its pro-
visions an arbitrary construction.
The general rule is, that, whenever it can possibly be done,
a will should be so construed as to give effect and operation
to every word and provision in it. Dows v. Swawn, 4 Mass.
208 ; 2 P. Wms. 282. Therefore, where the language of a
Avill is clear and unambiguous, and there is no conflict in its
various provisions, and no absurdity would thereby be in-
volved, it should be given effect according to the literal terms
used, taken in their general and popular sense, except where
technical terms are used, in which case they should be taken
in their technical sense, unless the context shows they are
used in a different sense.
Looking at the will before us in the light of these well
recognized principles, it would seem there ought to be little
or no difference of opinion as to its import.
There is clearly no uncertainty as to what appellant takes
under the will — manifestly the entire estate; nor is there any
uncertainty as to the length of time for which this bequest
was made or limited; for it is expressly declared to be u for
the term of her natural life;" and there is almost as little
doubt as to the purpose of the gift and right of user during
this term; for it is declared in unequivocal terms to be ufor
her own free, independent and uncontrollable use and benefit."
So far as the bequest to her is concerned, there can be no
doubt as to its character, unless such doubt is raised by the
subsequent provisions of the will.
Having thus given appellant a life estate in his entire prop-
1879.] Welsch v. Belleville Savings Bank. 201
Opinion of the Court. .
erty, the testator then proceeds to clothe her with an express
power to divide the same between certain specified persons,
subject to certain limitations thereinafter mentioned, which
are expressed in these words: "and that she may, at her own
wish, at any time, divide the same among her, or our, chil-
dren or grandchildren." While these words clothe appellant
with the power in question, they also, at the same time, indi-
cate, in unmistakable terms, the testator's intention that the
estate shall ultimately be divided between their children and
grandchildren, but not equally, for in the very next sentence
he expressly provides that his grandchild Arthur shall receive
"from the estate she may leave at her death," before any
division is made with the others, the sum of $4000, and also
an equal share with them in the residue.
It is supposed by appellant that the expression, "from the
estate she may leave at her death," strengthens the hypothesis
that it was the purpose and intention to give appellant unlim-
ited power to dispose of the entire estate in such manner as
she might think proper. While this view is not altogether
without force, we can not concur in it. When the several
provisions of the will are considered in connection with the
character of his estate, so far as it is made to appear, or may
reasonably be conjectured, the expression in question may be
accounted for on a more rational hypothesis. Before the
occurrence of this language the testator had already, in plain
and explicit terms, limited to her the use of the estate for the
term of her natural life, and had also empowered her, "at her
own wish/7 to divide it at any time, either before or at the
time of her death. Of course, if the division was made in
her lifetime, it would be at the expense of the interest in the
estate which had already been given to her; and in view of
this state of things, it is but reasonable to suppose that this
expression was used at least in part to negative the idea or
conclusion that there was any purpose on the part of the tes-
tator, by reason of having authorized this division in her life-
time, to make it obligatory on her, and thereby curtail the
202 Welsch *. Belleville Savings Bank. [Nov. T.
Opinion of the Court.
life interest which he had already given to her. It was but a
cautious, indirect repetition of his already unequivocally de-
clared intention that she was to have the estate for life, and
that the children's and grandchildren's interest was not to
commence till her decease, unless she voluntarily saw proper
to make the division before her death. But this expression
is also to be accounted for on another ground, which doubt-
less operated in connection with the one we have just men-
tioned.
It affirmatively appears from the pleadings that the estate
in question consisted in part of government bonds, which
were liable to loss or destruction by accident or misfor-
tune during her life, and it may reasonably be supposed
that the estate also consisted in part of such chattels as would
become greatly impaired in value from ordinary use and nat-
ural decay, so that by reason thereof the interest in remainder
would necessarily consist of what remained of the estate at
her death, and hence the expression in question. And this
construction is clearly sustained by authority. See 3 Lomax's
Digest, 2d ed., top page 193, and authorities there cited.
Whatever apparent room for doubt may exist by reason of
the use of those words, doubtless arises in part from the fact
that the provision authorizing appellant to divide the estate
among the children and grandchildren intervene between the
limitation to her and the limitation to them. Had the will,
after giving the life estate to her, proceeded directly to give
Arthur the $4000, and to direct an equal division of the resi-
due between him and the other children and grandchildren, and
then closed by directing that his wife might make this division
during her lifetime, if she saw proper to do so, there would
probably never have been any doubt as to what was intended
by it.
The fact that appellant is expressly authorized to divide
the estate among the children and grandchildren, by implica-
tion strongly negatives a purpose on the part of the testator
to authorize her to dispose of the estate in any other manner
1879.] Welsch v. Belleville Savings Bank. 203
Opinion of the Court.
or to any other persons. JExpressio unius est exclusio alterius.
If he had already authorized her to dispose of the estate ab-
solutely, why tell her she could divide it among the children?
It certainly added nothing to the power he had already con-
ferred. The principle that the greater contains the less is as
true in law as in mathematics.
We fully recognize the doctrine that where, by the terms
of a will, there is given to one an unlimited power of selling
or otherwise disposing of an estate in such manner as the
devisee may think fit, a limitation over is inoperative and
void by reason of its repugnance to the principal devise. Gay
v. Montague, 3 Bro. Par. Ca. 314; Attorney General v. Hall,
Vin. 103. • But this doctrine has no application to a case
where a life estate has been given to the first taker in express
terms. Redfield, in his work on Wills, expressly lays it down
that "a power of sale attached* to a life estate will not have
the effect to enlarge it into a fee. And a direction that the
devisee shall have the sole use of the estate," as in the case
before us, "and that at her death it shall go to her children,
but if they are not raised, then to her husband and others,
only creates a life estate in the first devisee/' citing, in support
of the text, Jossey v. White, 28 Ga. 295. It must be con-
ceded that the case at bar is a much stronger one against the
position of appellant than the one just cited. For, in the
case cited, there was not, as in the case before us, an express
limitation for life to the first taker. The same doctrine is
laid down in Loraax's Digest. In vol. 3, 2d ed., top page
317, the author says: "Although a devise to a person gener-
ally, with power to give and dispose of the estate devised as
he pleases, creates an estate in fee simple, yet where an estate
is devised to a person expressly for life with a power of dis-
posal, the devisee will only take an estate for life and a power
to dispose of the reversion." So, even if it were admitted
that the terms "her own free," "independent" and "uncon-
trollable" use gave appellant the power to dispose of the
estate absolutely, it would not follow that Arthur Herold did
204 Welsch v. Belleville Savings Bank. [Nov. T.
Opinion of the Court.
not take a vested remainder. On the contrary, the authori-
ties cited establish the very converse of that proposition.
But we are satisfied that the testator did not intend by those
terms to give appellant an unlimited power to dispose of the
property. All that was intended by them was to give her the
largest possible dominion over the estate consistent with the
interest conferred upon her by the will. And it may be laid
down as a general rule, that in all cases where, by the terms
of a will, there has been an express limitation of an estate to
the first taker for life and a limitation over, any genera 1
expressions like those in question, apparently giving the
tenant for life an unlimited power over the estate, but which
do not in express terms do so, must be regarded as referring
to the life interest only, and therefore as limited by such
interest. We are clearly of opinion, therefore, that in any
view that may reasonably be taken of this case, in equity
Arthur Herold had a vested remainder in the $4000 in
question. We say in equity, for the whole doctrine of remain-
ders in personal estates is a product of purely equitable
growth. Strictly speaking, it is unknown to the law as con-
tradistinguished from equity. It has been fostered and
developed by courts of equity, the spiritual courts of England
and the probate courts of this country, until it is deeply
rooted in the jurisprudence of both countries.
Originally, where a chattel or other personal estate was
given to one for life with a limitation over to another, the
former took the absolute title, and the limitation over was
void, both at law and in equity. In the course of time, how-
ever, equity — which has ever been a pioneer in the interest of
justice and right — in the case of a devise of a chattel real to
one for life with a limitation over to another, interposed on
behalf of the remainder-man, holding the limitation over
good as an executory devise, but not as a remainder. And
even now such limitations over are not, strictly speaking,
remainders; for it is as true now as then, one can not, in the
1879.] "Welsch v. Belleville Savings Bank. 205
Opinion of the Court.
common law sense of the term, have an estate in money or a
mere chattel.
The interest thus conferred, in so far as it is acquired by an
express limitation over, and is not to be enjoyed in possession
till a future day, is analogous to that of a remainder, and it
is only called a remainder by way of analogy.
The jurisdiction of courts of equity in cases of this char-
acter was originally confined exclusively to dispositions by
will of chattels real, where the use merely had been given to
tenants for life. But in process of time the same relief was
extended to cases where the use of other chattels had been
limited in a similar manner. And finally, equity wholly
repudiated the distinction between the use of a chattel and
the chattel itself, and adopted the more reasonable and sensi-
ble doctrine that where a chattel is given to one for life, with
a limitation over to another, the first taker really acquires
nothing but a right to the use, and such is the recognized
doctrine at the present time. Whether a remainder in per-
sonal estate can now be created by an ordinary deed is, upon
authority, very questionable. The weight of authority seems
to be against it; yet, in a hard case equity would probably
find some means of untying its hands and affording the
necessary relief. It is well settled, however, that such inter-
ests may now be limited by deeds of trust, in which cases the
trustees take the legal title, and, at law, would be recognized
as sole owners.
The ancient doctrine which gave to the tenant for life the
absolute property still prevails, both at law and in equity, with
respect to a bequest of specific things whose use consists
solely in their consumption, such as fruits, provisions, etc. The
gift of such articles for life is said to be of necessity a gift of
the absolute property, because the use and property can not
exist separately. 2 Kent, 353, side page. The same author
says: "If such articles are not specifically given, but gen-
erally as goods and chattels with a remainder over, the tenant
206 Welsch v. Belleville Savings Bank. psTov. T.
Opinion of the Court.
for life is bound to convert them into money, and save the
principal for the remainder-man."
And it may be laid down as a general rule, in all cases
where the property thus limited is not specifically given, and
is liable to perish or greatly deteriorate in value by keeping
or using the same, and there is nothing to indicate an inten-
tion that the property shall be enjoyed in specie by the tenant
for life, a court of equity will, on application of the remainder-
man, require the property to be converted into money and
properly invested, giving the tenant for life all accumulations,
and reserving the principal for the tenant in remainder, upon
the former's decease. Where chattels are specifically given
to the tenant for life he is of course entitled to their possession
and use, and so long as they are used with ordinary care and
prudence the remainder-man is not permitted to interfere,
even though it may altogether defeat his future enjoyment of
the property. But where a testator gives to one for life a cer-
tain sum of money out of his estate, with a limitation over to
another, the former has no right to the possession of the
money thus bequeathed. The title thereto devolves upon the
executor, and it is his duty to see that the same is properly
invested, and that the annual accumulations are paid over to
the tenant for life, and the principal to the remainder-man
upon the former's decease.
It follows, from this view of the law, that appellant had no
right to the personal custody of the moneys which her husband
left at his decease unless she happened to be executrix, and
that is not disclosed by the pleadings, upon which this case
alone turns. Nor was she entitled to the United States
bonds, for they were in effect money properly and judiciously
invested by the testator before his death. As to them, it was
the duty of the executor, after the payment of all debts, to
pay to her the coupons thereto attached as they became due.
But, inasmuch as these bonds came into her hands, — and
whether properly or not is immaterial so far as this contro-
versy is concerned, — and she voluntarily placed them in the
1879.] Welsch v. Belleville Savings Bank. 207
Opinion of the Court.
custody of defendant, as a trustee for herself and Arthur, in
the manner set forth in appellee's pleas, she had no right, as
tenant for life of the fund, to disturb the defendant's possession
of it, and hence she can not maintain this action.
But there is another view, that has not been urged by
appellee's counsel to any extent, that we regard as fatal to a
recovery in this case. Under the pleadings, appellee was
entitled to a judgment if either of the special pleas presented
a good defence. The agreement set forth in the first special
plea we consider a complete answer to this action, without
regard to whether Arthur took a vested remainder in the
$4,000 or not. In the first place, it must be conceded that
there was reasonable ground to suppose that he had such
interest. Arthur, through his guardian, claimed that he had.
Appellant entertained this claim on her part, and by an in-
strument under her hand and seal conceded the justness of it,
and thereby agreed that appellee should take the fund in
question and invest it in other United States bonds for their
mutual benefit; and this was done in pursuance of the agree-
ment. It is not pretended that there was any fraud or over-
reaching, on the part of any one, by which she was induced
to execute the agreement in question, and upon what princi-
ple it is now claimed that she can, without the consent of the
other parties to it, avoid the obligations which it imposes, we
are wholly unable to see. Having once fully and voluntarily,
without any fraud or overreaching from any quarter, by her
deed solemnly acknowledged the justness of his claim, and
delivered the fund to appellee for him, to be delivered on her
decease, she is now estopped from denying his right to it.
Under this state of facts appellant is bound, in any view we
can take of the case. Suppose the agreement is regarded as
a mere voluntary settlement, appellant is still bound, for the
agreement is fully executed. Upon the delivery of the
instrument in question and the transfer of the fund to appel-
lee, nothing further was required at her hands to make
Arthur's title complete, and it was to all intents and purposes
208 LlNEGAR V. RlTTENHOUSE. [Nov. T.
Opinion of the Court.
an executed agreement. And it is scarcely necessary to say
that a mere gift or voluntary agreement is just as binding as
any other undertaking, when executed.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
David T. Linegar
v.
Wood Rittenhouse.
Contested elections— jurisdiction. The county courts have no jurisdiction
to hear and determine the contest of an election in respect to the office of
alderman in a city organized under the general law for the incorporation of
"cities, villages and towns." That jurisdiction is conferred by the general
incorporation law upon the city council of the city in which the election has
been held, under the provision which makes the council the judge of the
election and qualification of its own members.
Appeal from the County Court of Alexander county ; the
Hon. Reuben S. Yocum, Judge, presiding.
Mr. David T. Linegar, pro se.
Messrs. Mulkey & Leek, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court :
An election was held in the city of Cairo, on the 15th day
of April, 1879, for aldermen and other city officers. The
parties to this controversy were- opposing candidates for
alderman in the second ward of the city. When the votes
were canvassed, on the 18th day of the month, by the city
council, appellant was declared duly elected. The city was, at
that time, organized under the general incorporation act
governing cities, villages and towns.
1879.] LlNEGAR V. ElTTENHOUSE. 209
Opinion of the Court.
Appellee filed a petition in the county court to contest the
election, and charged that Linegar did not receive a majority
of the legal votes cast in the ward at the election, and that peti-
tioner did receive a majority of the legal votes so cast for alder-
man in that ward; that there were a number of votes counted
for Linegar which were not cast for him, and twenty votes
were counted for him which were cast by persons not legally
entitled to vote at that election in that ward ; and that Linegar
had not paid a portion of his taxes when he qualified as an
alderman.
Appellant demurred to the petition, on the ground that the
county court had no jurisdiction to hear or determine the
contest, but that it belonged to the city council, which has
the sole jurisdiction of such contests.
The court overruled the demurrer, and defendant thereupon
answered. A trial was had, and the court found and decreed
that Linegar did not receive the majority of all the legal
votes cast at the election, and that petitioner did receive a
majority of all legal votes cast in that ward at the election.
Defendant thereupon appealed, and has assigned various
errors on the record, the first of which is overruling his
demurrer to appellee's petition. And this assignment of
error raises the question of whether the county court had
jurisdiction of the subject matter of this contest.
In the view we take of the case, this is the only question
we deem important to consider. The manner of contesting
elections is prescribed alone by statute. The jurisdiction,
the mode of trial and the whole contest is purely statutory,
and is not regulated or governed by the common law. At
the common law it was not a judicial proceeding except in a
proceeding in the nature of a quo warranto, in which evidence
was heard, and the court determined whether the defendant was
entitled to the office; — if*it was found he was a usurper he was
ousted; but it was only by such a proceeding that the courts
interfered in such contests. We are therefore to look to the
14—94 III.
210 LlNEGAR V. ElTTENHOUSE. [Nov. T.
Opinion of the Court.
statute, to ascertain where it has lodged the power to try the
contest of an election of an alderman to a city council.
The General Assembly has conferred jurisdiction on the
county court in cases of contested elections, after providing
for the contest of various officers by other courts, by the 98th
section of the Election law. It provides that "the county
court shall hear and determine contests of election of all
county, township and precinct officers, and all other officers
for the contesting of whose election no provision is made."
The city of Cairo is incorporated and acting under the
chapter entitled " Cities, Towns and Villages/' and must be
governed by its provisions. The 34th section of that act
provides that " the city council shall be judge of the election
and qualification of its own members." Now, what does this
language import? Most assuredly that in any contest be-
tween persons claiming to be elected an alderman, the council
shall be the judge of the contested election, and hear and
determine which of the contestants is elected a member of the
council. They in no other manner could be the judge of the
election of the members of that body. If this be true, then
there is another mode provided for the contest of the election
of this officer than by the county court, and if so, then by
the express terms of the statute it can take no jurisdiction in
this case.
The constitution of the United States, and of the various
States of the Union, it is believed, have provisions that each
house shall be the judge of the election and qualification of
its members, and we are aware of no case where it has been
held that the courts may determine the election and qualifica-
tion of the members of either house, where such a constitu-
tional provision exists. On the contrary, it has been the
uniform practice for each house of Congress, and of the
various States, to hear and decide contested seats. And we
can have no doubt that the General Assembly intended to
confer on city councils the same power, in cases of contests
for seats in the council.
1879.] LlNEGAR V. RlTTENHOUSE. 211
Opinion of the Court. It
It may be urged that because the legislature has not par-
ticularly specified the manner in which the council shall
proceed, therefore no other provision has been made for
the contest for this office. We think the objection has no
weight. It has made provision, as we have seen, that it shall
be determined by the city council. Suppose the section had
in specific terms provided that such contests should be heard
and determined by the city council, would any one have
doubted that ample provision had been made for such con-
tests? And yet we do not see that in substance and effect
these provisions are not equally broad and comprehensive.
To our minds there is no doubt that the city council has full
and complete jurisdiction to decide this contest, and the
county court has, no such jurisdiction.
But reference is made to section 57 of the general incor-
poration law of cities, villages and towns (Rev. Stat. 117.)
That section provides that: "The manner of conducting
and voting at elections to be held under this act, and the
contesting of the same, the keeping of poll lists and canvass-
ing the same, shall be the same, as nearly as may be, as in the
case of the election of county officers, under the general
laws of this State." Here we have the manner prescribed
by the general law, section 113 of which provides that the
person desiring to contest shall, within thirty days after the
person is declared elected, file with the clerk of the proper
court, a statement in writing setting forth the points on which
he will contest the election, which statement shall be verified
by affidavit, etc. The 114th section provides that a summons
shall issue to the person whose office shall be contested, or he
shall be notified to appear, and the 115th section requires the
evidence to be taken in the same manner and on like notice
as in cases in chancery, and the case shall be tried in like man-
ner as cases in chancery. These sections point out the mode,
and we can see no great inconvenience, by a few slight changes,
in rendering it entirely practicable for the city council to try
such a contest. The petition can be filed with the city clerk,
212 LlNEGAR V. ElTTENHOUSE. [Nov. T.
Opinion of the Court.
the notice can be given to appear before the city council, and
depositions taken and returned to the council under these
sections, and a trial had by that body. The city council are
certainly as well adapted to try such a contest as were these
justices of the peace to determine such contests as to county
officers under previous laws (see Rev. Stat. 1845, p. 222, sec.
42 et seq.) Hence we have a provision that the city council
shall determine such cases, and the manner prescribed.
We are referred to the case of Young v. Adam, 74 111. 480,
as having a bearing on this case. That was a contest as to
which of two persons was elected to the office of alderman in
one of the wards of the city of Joliet. The city was organ-
ized under a special charter. That case was based on Brush v.
Lemma, 77 111. 496. In this latter case it was held that the
general law providing for the contest of the election of a
county officer, by the 98th section, did not embrace the office
of the mayor of a city. That it only embraced officers
of the same class or grade. That the office of mayor is
not of the same class or grade as those enumerated in the
first branch of the section. The 57th section of the general
law for the incorporation of cities, villages, etc., was referred
to, and it was said that this evidently referred to cities and
villages organized under the general law. And it not appear-
ing that the city of Carbondale was acting under the general
law, that section had no application. By inference it was
held that, had that fact appeared, then the 57th section would
have given the county court jurisdiction of the case.
In Young v. Adam, supra, although it related to the office
of alderman, the court held, as the city was acting under a
special charter, that it was not embraced in the provisions of
the 98th section of the election law. It was said that the case
was governed by Brush v. Lemma, and this is true, because
the 98th section of the election law does not, as there said,
embrace the office of mayor, but the 57th section of the law
to incorporate cities and villages does. It was, therefore, by
1879.] LlNEGAB, V. ElTTENHOUSE. 213
Opinion of the Court.
force of this latter section that the county court acquired
jurisdiction in case of a contest for the office of mayor.
It was unnecessary to have referred to the fact that the city
of Joliet was acting under a special charter, as the result
would have been the same had it been under the general in-
corporation law. The decision was correct, under the case of
Brush v. Lemma, but not for that reason. The confusion or
uncertainty, if any exists, grows out of this immaterial ex-
pression in that opinion.
We have seen that at the common law courts have no inhe-
rent jurisdiction, except on quo warranto, or it may be in
mandamus, to decide contested elections; hence these enact-
ments are not cumulative, and the courts had no jurisdiction
of which to be deprived, but can only exercise such jurisdiction
as the statute confers, and in the manner specified. We pre-
sume these enactments do not deprive the circuit courts of the
power to hear and determine cases of quo warranto or man-
damus, but we apprehend a contest heard and decided by a court
under the statute could be pleaded in bar of such a proceeding.
The power conferred on the city council to judge of the
election and qualification of its own members, however, may
not be a bar to a quo warranto or mandamus proceeding.
Dillon on Mun. Corp., sec. 141. But that question is not
before us and is not decided. The cases of State v. Fitzgerald,
44 Mo. 425 and State v. Funck, 17 Iowa, 365, seem to have
been informations in the nature of a quo warranto, and, we
think, have no controlling influence on this question. Our
statute has made provision by which this contest could be
tried by the council, and it is, therefore, unlike the Iowa case
in that particular.
The county court not having jurisdiction to try the case,
the judgment is reversed.
Judgment reversed.
214 Perry County v. Jefferson County. [Nov. T.
Syllabus.
County of Perry
v.
County of Jefferson.
1. Boundary line between counties of Perry and Jefferson — of the Little
Muddy river. Under a proper construction of the act of 1835, "to change the
county line between Perry and Franklin counties," the Little Muddy river
forms the eastern boundary of only so much of Perry county as abuts upon
Franklin county, and does not constitute the eastern boundary of that portion
of Perry county which abuts upon Jefferson county. The boundary line
between Perry and Jefferson counties is the third principal meridian, as estab-
lished by the act of 1827 creating the county of Perry.
2. Same — construction of act of 1835. Jefferson county abuts upon Frank-
lin on the north, — both these counties abut in part upon Perry on the east. The
Little Muddy river crosses the north line of Perry county a short distance
west from its north-east corner, thence running south-easterly, crosses the
east boundary line of Perry into Jefferson county, thence meandering in a
southerly direction through Jefferson and Franklin to a point not far north of
the south-east corner of Perry, where the river takes a south-westerly course,
crossing again the east boundary of Perry, passing into that county and cross-
ing its south boundary line, thus cutting off the north-east and south-east
corners of Perry county. The letter of the act of 1835 would constitute the
Little Muddy river the east boundary line of Perry county, to the entire
extent of the county, thus making it the boundary line between Perry county
and the counties of Franklin and Jefferson abutting Perry county on the east.
But to give the act that effect would attach to Franklin county that part of
Perry situate in the north-east corner, which is cut off by the river*, and
which is entirely detached from Franklin county proper, and upwards of three
miles from it. To avoid this absurd result the letter of the act must yield to
the evident intention of the legislature as deduced from the whole act taken
together, giving due consideration to the title of the act, and the situation of
the territory to be affected.
3. So, the point of commencement as intended to be fixed by the act is the
middle of the river at the point where it crosses the north boundary line of
Franklin county, thence west on the county line to the third principal
meridian, thence north to the north-east corner of Perry county as established
by the act of 1827, thus leaving the meridian line as the boundary between
Perry and Jefferson counties.
4. Construction op statutes — of the title of an act. Although the title of
an act is commonly said to be no part of the act, it is not to be wholly disre-
garded in putting a construction upon the statute. The object of the legisla-
ture is very often avowed in the title as well as in the preamble; and where
1879.] Perry County v. Jefferson County. 215
Opinion of the Court. ►
the mind labors to discover the design of the legislature, it seizes upon every-
thing from whioh aid can be derived; and in such case, the title of an act
claims a degree of notice, and will have its due share of consideration.
5. Same — as to following the letter of the statute. Statutes must be interpreted
according to the intent and meaning, not always according to the letter. A
thing within the intention, is within the statute, though not within the letter;
and a thing within the letter is not within the statute, unless within the inten-
tion. There is sufficient authority to warrant departure from the words of a
statute when to follow them would lead to an absurd consequence.
Appeal from the Circuit Court of Perry county ; the Hon.
Amos Watts, Judge, presiding.
Messrs. Murphy & Boyd, for the appellant.
Mr. Seth F. Crews, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a suit, brought by the county of Jefferson, in this
State, against the county of Perry, to recover for moneys
expended in the construction and repair of bridges across
Little Muddy river, the alleged boundary line between the
two counties. It was agreed between the parties that the
question to be decided by the court was, is little Muddy river
the eastern boundary line of Perry county? If so found,
then the court to render judgment for the plaintiff for $453.
The circuit court found for plaintiff, and rendered judgment
for the above sum, and the defendant appealed to this court.
By an act of the General Assembly, approved January 29,
1827, (Laws 1827, p. 110,) the county of Perry was created
with the following boundaries: "That all that tract of country
within the following boundaries, to-wit: beginning at the
north-east corner of township numbered four south of range
numbered one west; thence due west on the line between town-
ships three and four twenty-four miles, to the north-west cor-
ner of township four south of range four west; thence due
south on the line between ranges four and five eighteen miles,
to the south-west corner of township six south of range four
216 Perry County v. Jefferson County. [Nov. T.
Opinion of the Court.
west; thence due east on the line between townships six and
seven twenty-four miles, to the south-east corner of township
six south of range one west; thence due north on the third
principal meridian line to the place of beginning, shall consti-
tute the county of Perry."
By a subsequent act of the General Assembly, approved
February 6, 1835, entitled "An act to change the county line
between Perry and Franklin counties," it was enacted:
" Section 1. That so much of an act creating Perry county,
approved January 29, 1827, as establishes the north-east cor-
ner of said county at the north-east corner of township num-
ber five south of range number one west, and so much as
establishes the south-east corner of said county at the
west corner of township six south of range one west, is
hereby repealed.
" Sec. 2. That the north-east corner of Perry county shall
be established in the middle of Little Muddy river, where the
line crosses said river dividing townships three and four;
thence due west on the line between townships three and four
to the north-west corner of township four south of range four
west; thence due south on the line between ranges four and
five, eighteen miles to the south-west corner of township six
south of range four west; thence due east on the line between
townships six and seven to the middle of Muddy river;
thence north with its meanderings to the place of beginning.
" Sec. 3. That all that tract of country lying west of Little
Muddy river, as before described, shall compose the county
of Perry, and all that tract of country lying east of said river,
heretofore belonging to the county of Perry, shall compose a
part of the county of Franklin, any former law to the con-
trary notwithstanding."
The question arises upon this statute of 1835, and is, whether
by that statute the Little Muddy river is made the eastern
boundary line of Perry county the entire extent of the county, or
only to the extent it adjoins Franklin county, making the river
the boundary line between Perry and Franklin counties only.
1879.] Perry County v. Jefferson County.
217
Opinion of the Court.
The relative situation of Jefferson, Franklin and Perry
counties and the Little Muddy river toward each other at
the time of the passage of the act of 1835 is shown by the
following plat :
* s
218 Perry County v. Jefferson County. [Nov. T.
Opinion of the Court.
The words of the act of 1835, after abolishing the north-
east and south-east corners of Perry county, are entirely clear,
explicit and consistent in defining the boundaries of Perry
county; and they make the Little Muddy river the eastern
boundary line of Perry county the whole extent of the county.
The river does cross the north line of the county, being the
line dividing townships three and four at a point a short dis-
tance west of the then north-east corner of the county, and
the north-east corner could be established in the middle of
the river at that point, and the lines could consistently run
from thence as described in the act. But this river also
crosses the north line of Franklin county, it being the line
dividing townships four and five at a point on that line a
little more than one mile east of the north-west corner of
Franklin county and of the third meridian, and it is in the
middle of Little Muddy river at the latter point where, Perry
county contends, the point of commencement was intended to
be established by the act of 1835, and the" line to run thence
west on the line between townships four and five to the third
meridian, thence north on that meridian six miles to the
north-east corner of Perry county, thence west on the line
between townships three and four, as described in the act.
According to this latter description, the county line only be-
tween Perry and Franklin counties would be changed, as the
title of the act of 1835 purports, and the line north between
Perry and Jefferson counties would remain unchanged.
The operation of the act, too, would be consistent. There
would be territory lying west of the river cut off from
Franklin county, and there would be territory lying east of
the river cut off from Perry county at the south-east corner;
and the act declares that the part lying west of the river
should belong to Perry county, and all that lying east of the
river should belong to Franklin county.
Making the Little Muddy river the eastern boundary line of
Perry county, the entire extent of the county involves this
absurd consequence. The river cuts off from the north-
1879.] Perry County v. Jefferson County. 219
Opinion of the Court. *
eastern corner of Perry county the triangular portion of
territory shown by the plat lying east and north-easterly of
the river, which, under the act of 1835, would become a por-
tion of Franklin county, the act attaching to Franklin county
all that tract of country lying east of the river theretofore be-
longing to Perry county. Now this portion of territory is
entirely detached from Franklin county, upwards of three
miles distant from it, a part of the county of Jefferson lying
between Franklin county proper and this territory. If so
cut off from Perry, it could properly be attached only to
Jefferson or Washington counties, the counties adjoining on
the east and north. No legislature could have understand-
ingly and intentionally attached and made this territory a
part of Franklin county. It would be a simple absurdity.
An inspection of the map will show this.
The act speaks, too, of only one tract, giving "that tract"
lying east of the river to Franklin county, when there are two
tracts cut off by the river from Perry county, this in the north-
east corner and another one in the south-east corner, which
may be said to be some indication that only one tract, this
latter tract, was contemplated by the legislature would be cut
off from Perry county by the change of boundary, and which
would be caused by the change of the county line between
Perry and Franklin counties in making the river the line
between them.
The title of the act is, "to change the county line between
Perry and Franklin counties." This is indicative of the
legislative design to change only the county line between
those two counties. Making the Little Muddy river the east-
ern boundary line of Perry county its whole extent, would
not only change the county line between Perry and Franklin,
but also that between Perry and Jefferson counties, cutting
off a portion from the south-western part of Jefferson county.
And though the title to an act is commonly said to be no
part of an act, it is not to be wholly disregarded in putting
a construction upon the statute.
220 Perry County v. Jefferson County. [Nov. T.
Opinion of the Court.
The object of the legislature is very often avowed in the
title to an act, as well as in the preamble. Potter's Dwarris
Stat. 103.
When the intent is plain nothing is left to construction.
When the mind labors to discover the design of the legis-
lature, it seizes everything from which aid can be derived ;
and in such case the title of an act claims a degree of notice,
and will have its due share of consideration. United States
v. Fisher, 2 Cranch, 258.
In Potter's Dwarris on Stat. p. 144, among a number of
rules and maxims of interpretation of statutes which are laid
down, are the following:
Statutes must be interpreted according to the intent and
meaning, and not always according to the letter.
A thing within the intention is within the statute, though
not within the letter; and a thing within the letter is not
within the statute, unless within the intention.
We have remarked upon the absurd consequences which
would follow from the adoption of the boundary as literally
described by the act of 1835, in giving to Franklin a piece
of entirely detached territory. There is sufficient authority
to warrant departure from the words of a statute when to fol-
low them would lead to an absurd consequence.
In Perry v. Skinner, 2 M. & W. 471, Parke, B., said :
"The rule by which we are to be guided in construing acts
of Parliament is to look at the precise words and to construe
them in their ordinary sense, unless it would lead to any
absurdity or manifest injustice; and if it should, so to vary
and modify them as to avoid that which certainly could not
have been the intention of the legislature should be done."
It is, unquestionably, a well settled rule of construction,
applicable as well to penal statutes as to others, that when
the words are not precise and clear, such construction will be
adopted as shall appear most reasonble and best suited to
accomplish the objects of the statute; and when any partic-
ular construction would lead to an absurd consequence, it will
1879.] Perry County v. Jefferson County. 221
Opinion of the Court.
be presumed that some exception or qualification was intended
by the legislature to avoid such conclusion. 24 Pick. 370;
and see United States v. Kirby, 7 aWall. 486 ; Oates v. First
National Bank of Montgomery, 100 U. S. Rep. (10 Otto,) 239,
that any construction should be discarded which leads to ab-
surd consequences.
There was evidently some misapprehension of the legisla-
ture in the matter. There was a palpable mistake as to
where the north-east corner of Perry county was, and the
whole difficulty comes from the fixing of the point of com-
mencement, the north-east corner of the county, and in the
description from that point of the first line of the boundary,
the north line of the county.
The act of 1835, in the first section, assumes that the law
of 1827 established the north-east corner of Perry county at
the north-east corner of township five south of range 1 west,
when, in fact, the act of 1827 fixed such north-east corner at
the north-east corner of township four south of range 1 west ;
and it also assumes that the south-east corner of the county
of Perry, as established by that act, is at the west corner of
township 6 south of range 1 west, when, in fact, it was estab-
lished at the south-east corner of township 6 south, range 1
west; — thus assuming that the north-east and south-east cor-
ners of that county were six miles from where they really
were established by the act of 1827.
The legislature clearly intended, in the act of 1835, to fix
the point of commencement, in defining the boundary of Perry
county, at a point in the Little Muddy river on the same line
east and west between townships on which the north-east
corner of the county was ; and if they were acting under the
supposition, as the first section shows, that the north-east cor-
ner was on the line between townships four and five, then
they intended to fix the point of commencement, which they
call the north-east corner, in the middle of Little Muddy
river on the line dividing townships four and five — which
would be on the north line of Franklin county, a little more
222 Perry County v. Jefferson County. [Nov. T.
Opinion of the Court.
than a mile east of its north-west corner — and not on the line
between townships three and four, as the act expresses; and
the description, instead of being from the point of commence-
ment due west to the north-west corner of Perry county, as
the act reads, should then have been due west to the third
meridian, -then north on the meridian line to the north-east
corner of Perry county, and thence due west to the north-
west corner of that county. This description of boundary is
the one Perry county contends for, and would change the line
only between the counties of Perry and Franklin, and the
change would be, in making the Little Muddy river the line
between them.
Evidence was introduced showing, that so far as all ques-
tions of county government and the assessment of taxes were
concerned, the county of Perry has, ever since the act of
1835, recognized the line of the third principal meridian as
the line dividing the counties of Perry and Jefferson, and has
never treated the Little Muddy river as the line between
them.
We are of opinion that it was not the intention of the act
of 1835 to change the county line between the counties of
Jefferson and Perry, but that it was the intention to change
only the county line between Perry and Franklin counties, as
the title of the act expresses; and that it is the sound and the
permissible construction of the act that it did not change the
county line between the counties of Perry and Jefferson, but
only the line between Perry and Franklin counties, making
the Little Muddy river the boundary between them, notwith-
standing such construction is contrary to the letter of the act
of 1835, in defining the boundaries of Perry county.
The judgment of the circuit court will be reversed, and the
cause remanded.
Judgment reversed.
1879.] Driggers v. Belt,. 223
Opinion of the Court.
Wasden Driggers
v.
David A. Bell.
1. Measure or damages — on failure to deliver grain sold. The measure of
damages for a breach of a contract to sell and deliver grain, where the price
has not been paid, is the difference between the market value at the time of
default and the contract price, with six per cent interest thereon.
2. Variance — as to time of delivery under contract. Where a declaration in
a suit for the breach of a contract for the sale of wheat, alleged that by the
contract the wheat was to have been delivered "in a reasonable time." and
the proof was, to be delivered on payment and demand, "at any time within
five weeks," it was held that the variance would have been fatal if the objec-
tion had been made on the trial, unless the declaration had been amended.
3. Practice — time to object. Where an objection could have been obviated
by amendment, and it is not made on the trial, it will be too late to urge the
same in this court for the first time. So held of a variance between the dec-
laration and proof as to the terms of a contract.
Appeal from the Circuit Court of White county; the Hon.
Tazewell B. Tanner, Judge, presiding.
Messrs. Bell & Green, Messrs. Partridge & Parker,
Mr. Leslie Durley, for the appellant.
Messrs. Crebs & Conger, and Mr. James McCartney,
for the appellee.
Mr. Justice Dickey delivered the opinion of the Court:
Bell, in this action, recovered of Driggers a judgment for
damages to the amount of $1400, upon a claim that Driggers
had agreed to sell and deliver to Bell 7000 bushels of wheat
at $1.50 per bushel; that Driggers had refused to perform
this contract, although Bell was able and ready, and offered
to perform on his part.
Driggers has appealed to this court, and, by his counsel,
urges that the court erred in charging the jury that interest
could be allowed, in assessing the damages in this action, upon
224 Driggers v. Bell. [Nov. T.
Opinion of the Court.
the excess of the market price, at the time of default, over
the contract price.
Counsel concede that in a case where the price of the prop-
erty was paid by the purchaser before default in the seller,
the plaintiff may recover interest upon the whole market
value of the property from the time of default, but insists
that, where the contract price has not been paid, no interest
can be recovered, and that the limit of damages to be recov-
ered is simply the difference between the contract price and
the market price at the time of default.
No reason, on principle, is perceived for such a distinction.
The liability at the time of default, in each case, is for the
market value of the property, less the amount, if any, of
money paid on the price, and interest, in either case, is allowed
as compensation for the delay in payment of the damages
arising from the default.
Another ground of complaint is, that the proofs do not
support the allegations of the declaration ; that there is a
variance between the allegata and the probata. The decla-
ration alleges that, by the terms of the contract of purchase,
the wheat was to be delivered "in a reasonable time;" whereas
the proof is, that the wheat was, by the terms of the contract,
to be delivered, on payment and demand, "at any time within
five weeks" from the day of the contract.
This objection, if taken on the trial, certainly would have
been fatal to the action, unless obviated by an amendment of
the declaration, on trial, under the provisions of our statute.
No such objection was made upon the trial, nor does the atten-
tion of the circuit court seem (from anything in this record)
to have been called to this variance in any part of the pro-
ceedings in that court. Appellant can not be permitted to
raise that question for the first time in this court. It is true,
the circuit court was asked by the defendant to charge the jury,
and did charge, among other things, that, "in this case the
jury must believe, from the weight of the testimony, that all
the terms of the contract were agreed upon by plaintiff and
1879.] Driggers v. Bell. 225
Mr. Justice Scott, dissenting. ►,
defendant as set up in the plaintiff's declaration, or the jury
must find for the defendant;" but it does not appear, that any
point was made on the trial on account of the variance.
The entire record shows that the controversy at the trial
was not on this question at all, but the dispute was, whether
a contract of sale of 7000 bushels of wheat, at $1.50 per
bushel, was or was not agreed upon. The record does not
show that this question of variance was raised even on the
motion for a new trial in the court below.
Had this objection been made, it might have been obvi-
ated at once, by an amendment of the declaration. An
objection which, if made at the trial, could easily have been
obviated, ought not to prevail in this court, if raised here for
the first time.
Finding no sufficient cause to reverse this judgment, it must
be affirmed.
Judgment affirmed.
Mr. Justice Scott, dissenting:
It is conceded, in the opinion of the majority of the court,
there is a variance between the proofs and the declaration that
would be fatal had the objection been taken at the trial in the
court below.
One ground upon which the judgment is affirmed is, the
objection was not made in the motion for a new trial. The
motion for a new trial was in writing, and the seventh cause
alleged is, athe proof does not sustain the declaration." That
is equivalent to saying there is a variance between the proofs
and the declaration.
As it was a question of fact whether the proofs sustained
the declaration, or whether there was a variance between
them, defendant could not sooner make the objection, and he
ought to be allowed the benefit of it in this court.
The instructions given seem to indicate the same objection
was insisted on in the argument before the jury, but that fact
15—94 III.
226 The People v. Smith. [Nov. T.
Opinion of the Court.
can not be shown in the record. The formal objection would
more appropriately appear as it does in the motion for a new
trial.
The People of the State of Illinois
v.
Irwin Z. Smith.
1. Taxes — penalty as to forfeited land. Under the statute relating to the
revenue, where a forfeiture of land to the State has occurred, the back tax
and printers' fees, with one year's interest at ten per cent upon the amount
of the tax, is to be added to the amount of the current, year, and this regard-
less of the fact whether all the formalities required have been observed prior
to the rendition of judgment as to the preceding year.
2. On an application for judgment against land for taxes, it is not compe-
tent to inquire whether the judgments for taxes of previous years were in
strict conformity to the statute. If those judgments were erroneous, the
remedy was by appeal or writ of error.
Appeal from the County Court of Madison county; the
Hon. M. G. Dale, Judge, presiding.
Mr. C. L. Cook, and Messrs. Wise & Davis, for the
appellant.
Mr. Justice Craig delivered the opinion of the Court:
This was an application by the county collector of Madison
county, at the May term, 1879, of the county court, for judg-
ment against lands for taxes for the year 1878, and back taxes,
costs and penalties for the years 1876 and 1877.
One Irwin Z. Smith, who owned a certain tract, appeared
and resisted judgment against his land for the amount claimed,
on the ground that the statute had not been complied with
prior to the rendition of judgments in 1877 and 1378.
The court on the hearing refused to render judgment for
the amount claimed, $208.65, but rendered a judgment for
1879.] The People v. Smith. 227
Opinion of the Court. »
$199.98, the amount of taxes due for the year 1878, and the
back taxes for the years 1876 and 1877, with six per cent
interest on the back taxes. The collector claims that the
judgment is erroneous, and by agreement the parties have
certified the following questions for decision:
"1. Is it proper, in the present application for judgment
by the collector against the land, when taxes have not been
paid for several years on the land, and against which judg-
ment has been obtained each year without any defence being
made in writing or otherwise by the owner, for the court, in
this application, which includes the taxes of the present year
and all the taxes for said back years, with costs, interest,
etc., attached, to allow the owner at this time to raise any
defence which he could properly have raised when the judg-
ments were obtained each year? Are not the judgments thus
obtained each year against the owner settled, determined, and
can he afterwards attack the amount of the judgments thus
obtained? And if the forfeiture should be illegal in each
year in which back tax is charged, and the application for
this includes these illegal forfeitures, can judgment be ren-
dered against the land for the back taxes, interest, penalties,
etc., included in the illegal forfeitures?
" 2. If the owner can go back — show the judgment and
forfeitures were not legal — can the court in this proceeding
add to the back taxes interest from the time the land was
each year, respectively, sold, until the judgment, at the rate
of six per cent per annum?"
It appears that judgment was rendered against the objec-
tor's land, in the years 1877 and 1878, for the taxes remain-
ing due thereon in each of those years, and, for the want of
bidders, it was forfeited to the State. Whether the judgments
rendered in each of these years may be regarded as final and
conclusive on the parties in this application, is a question
which we do not deem it necessary to decide. As the land
was forfeited to the State in each of the years 1877 and 1878,
the question presented is, what amount the county clerk was
228 The People v. Smith. [Nov. T.
Opinion of the Court.
required to add to the assessment of 1878, on account of the
forfeiture, when he extended the taxes for that year.
This question must be determined by the statute, as our
entire revenue system is created by and depends upon the stat-
ute for its force and vitality. Sec. 129 of the Revenue law,
R. S. 1874, page 879, provides: "In all cases where any real
property has heretofore been or may hereafter be forfeited to
the State for taxes, it shall be the duty of the clerk, when he
is making up the amount of tax due on such real property for
the current year, to add the amount of back tax, interest,
penalty and printers' fees remaining due on such real property,
with one year's interest at ten per cent on the amount of tax
due, to the tax of the current year; and the aggregate amount
so added together shall be collected in like manner as the
tax on other real property for that year shall be collected."
This provision is followed by section 229, which declares:
"The amount due on lands and lots previously forfeited to
the State, and remaining unpaid on the first day of Novem-
ber, shall be added to the tax of the current year, and the
amount thereof shall be reported against the county collector
with the amount of taxes for said year; and the amounts so
charged shall be placed on the tax books, collected, and paid
over in like manner as other taxes." The section also author-
izes the county collector to sell the lands in the same manner
as if they had never been forfeited, and that the additions and
sales shall be continued from year to year until the taxes are
paid.
Under the requirements of these two sections of the Reve-
nue law, there would seem to be but little doubt in regard to
the amount for which a judgment could be obtained. Under
the first section referred to, where a forfeiture to the State has
occurred, the back tax, penalty, printers' fees, with one year's
interest at ten per cent on the amount of the tax, is to be
added to the amount of the current year, and this, too, re-
gardless of the fact whether all the formalities required have
1879.] The People v. Smith. 229
Opinion of the Court. ,»
been observed prior to the rendition of the judgment. The
People v. Gale, 93 111. 127.
It will be observed, that in defining the duty of the clerk in
extending the taxes, no mention whatever is made of a judg-
ment. Had the act provided that the penalty and printers'
fees could be added only where a legal judgment had been,
rendered against the land, a different question would have been
presented; but there is no such provision in the Revenue law.
By the terms of section 129 the force or validity of a judg-
ment seems to have been purposely left out of view. The
language, "in all cases where any real property has been for-
feited to the State," is so plain that it will admit of but one
construction. The addition which the clerk was directed to
make to the back tax, seems to have been required as a pen-
alty upon the owner of the land for a failure to pay the taxes
due, at the proper time, and we perceive no reason why it
should not be imposed. Suppose the legislature had provided
that where the tax due upon a tract of land was not paid, and
the land was forfeited to the State, the clerk, in extending
the taxes for a subsequent year, should add fifty per cent to
the back taxes as a penalty upon the owner for a failure to
pay his taxes when due. No reason is perceived why a provi-
sion of this character might not be enforced. If it could,
upon the same principle, and for a like reason, the clerk could,
under section 129, add to the back taxes ten per cent interest
for one year and printers' fees as a penalty.
In our view, therefore, it is not important to inquire
whether the judgments for taxes in the years 1877 and 1878
were strictly in conformity to the statute. It is sufficient that
the clerk, in extending the taxes in 1878, was authorized by
the statute to add certain amounts to the back taxes, and in
the discharge of this duty he followed the law. This view
can do no harm to the landowner. If the judgments rendered
in 1877 and 1878, under which the land was forfeited to the
State, were erroneous, he had a complete remedy by appeal or
writ of error; but as he did not see proper to avail of this
230 Bell et al v. The People. [Nov. T.
Syllabus.
remedy, he can not now complain of the action of the clerk
in extending the taxes, which seems to be in conformity to the
statute.
The judgment will be reversed, and the cause remanded.
Judgment reversed.
James Bell et al.
v.
The People, use of Mary E. Evans.
1. Administrator's bond — setting aside will does not release sureties. A
decree of the circuit court setting aside a will and directing an administrator
with the will annexed to administer the estate as intestate property, will not
release the sureties on his bond for the funds coming to his hands when he
continues to act as administrator and closes the administration of the estate.
2. Administrator — guardian — in which capacity liable. Where an ad-
ministrator of an estate is also guardian for the sole heir and distributee,
and closes the administration of the estate substantially, though he makes
no report of the same to the county court, and charges himself in a
private book with the funds due the heir, and pays the necessary expenses
of his ward and collects the rents as guardian, and a reasonable time has
elapsed for completing the administration of the estate, his sureties as admin-
istrator will be released, and his sureties as guardian will be liable for the
funds which came into his hands in the capacity of administrator.
3. Where a person sustains the dual relation or trust of administrator and
of guai*dian of the sole distributee, and before his death makes no settlement
of his accounts, or does any other act showing an election as to the capacity
in which he holds the unexpended funds of the estate in his hands, it will be
presumed after a reasonable time for settling the estate has elapsed, and
especially after the administration of the estate has been completed, that he
held such funds as guardian, and his sureties as guardian alone will be liable
for the same. An order of the county court transferring the funds in his
hands as administrator is not indispensable in such case to charge his sureties
as guardian.
Appeal from the Appellate Court of the Fourth District;
the Hon. Tazewell B. Tanner, presiding Justice, and the
Hon. James C. Allen and Hon. George W. Wall, Justices.
1879.] Bell et al. v. The People. 231
Opinion of the Court. >
Messrs. Green & Gilbert, for the appellants Bell and
Kieh.
Mr. Andrew D. Duff, for the appellees.
Mr. Justice Scott delivered the opinion of the Court:
This suit was brought against the sureties on the official
bond of Jackson Frick, now deceased, as administrator of the
estate of James Evans, deceased, for the benefit of Mary E.
Evans, in the circuit court of Union county. At the same
term of court another suit was brought for the use of the
same plaintiff, against Jacob Rendleman and Charles Hortline,
two of the defendants in this case, and who are sureties on
the official bond of the same Jackson Frick, as guardian for
the same Mary E. Evans.
Both cases were submitted to the court for trial on an
agreed statement of facts, from which it appears that Jackson
Frick, since deceased, was, on the 23d day of January, 1874,
appointed administrator, with the will annexed, of the estate
of James Evans, and gave bond, as required by law, in the
statutory form, with all of defendants in this action as his
sureties, and at once entered upon the discharge of his duties
as such administrator. Such proceedings were afterwards had
in the circuit court of that county that the will of James
Evans was set aside, but by the decree rendered the adminis-
trator was required to administer the effects of the estate as
intestate property, unless the county court should otherwise
direct. It does not appear, however, that the county court
ever made any different order relieving Frick from the duty
imposed by the decree to administer the estate as intestate
property.
After giving bond as such administrator Frick filed an
inventory of the effects of the estate. In the course of
administration he substantially reduced the effects of the
estate to his possession, and paid all the debts of the estate
with the exception perhaps of two small claims, trifling in
232 Bell et at. v. The People. [Nov. T.
Opinion of the Court.
amount. On the 20th .day of August, 1874, Frick was
appointed guardian of Mary E. Evans, sole heir of the said
James Evans, deceased, and as such guardian gave the bond
declared on in the other suit, with the defendants in that
action as his sureties.
It is admitted that Frick never made any report of his acts
as administrator of the estate of Evans, other than filing an
inventory of the assets of the estate and the sale bills of the
personal property; and that the records of the county court
show no further proceedings, except the allowance of claims
against the estate.
It is also admitted that Frick at no time made any report
of his acts and doings as guardian of the heir of the estate
of which he was administrator; and that the records of the
county court, when he was appointed, show nothing other
than his appointment as such guardian and the issuing of
letters of guardianship. But it is admitted that Frick con-
tinued to act as guardian for the beneficial plaintiff up to the
time of his death, and paid out money for and on behalf of
his ward, and made entries in his memorandum book in
relation to his trust as such guardian.
It is also admitted that notes and accounts belonging to the
estate, amounting to $7800, were in the hands of Frick at
the time of his death; that of such amount the administrator
de bonis non has collected $78, and of the remainder probably
$88 can be realized, and the balance is conceded to be worthless.
At the time of the death of Frick, which occurred on the
20th of December, 1877, it is admitted, afcer allowing all
just credits, there remained in his hands the sum of $5797.14
unaccounted for, either as administrator or guardian, or other-
wise, and for which one set or the other of his sureties on his
official bond is responsible. Certain rents came to his hands
for the use of his ward, for which it is conceded the sureties
on his bond as guardian are alone liable.
In the case before us the circuit court rendered judgment
against the sureties on the administrator's bond for the
1879.] Bell et at v. The People. 233
Opinion of the Court.
penalty named, and for the damages found, $5797.14; and
we understand from counsel that a judgment was also rendered
in the other case on the guardian's bond, against the sureties
therein, for the penalty named, and for the balance found
due from Frick to the estate at the time of his death, and
also for the rents that had come to his hands from the lands of
his ward. The suggestion is, that the latter judgment, as well
as the one on the administrator's bond rendered in the circuit
court, was affirmed in the Appellate Court, but the transcript
before us contains only the record of the judgment on the
administrator's bond.
All the facts in the case appear in a statement signed by the
respective counsel, and there can be no disagreement concern-
ing them.
The parties complaining of the judgment in this case are
the sureties on the bond of Jackson Frick, as administrator
of the estate of James Evans, deceased, and not the sureties
on his bond as guardian of the heir to the estate of which he
was administrator. Although it is conceded the administrator
made no reports of his acts and doings in the matters of the
estate to the county court, as the law required him to do, still
it is maintained the sureties on his bond as administrator are
not responsible for the funds remaining in his hands at the
time of his death, for two reasons: first, because his appoint-
ment as administrator, with the will annexed, of the estate of
Evans ceased and was determined when the will was declared
void by the decree of the circuit court; and second, because
he ceased to act as such administrator long before his death.
On the first point made, we are inclined to hold the effect
of the decree declaring the will of decedent invalid, was only
to relieve Frick from administering the estate according to
the provisions of the will. The decree itself provided he
should continue to administer the estate as intestate property,
unless the county court otherwise ordered, which, as we have
seen, it did not do; and he must have so understood it, for he
continued to act as such administrator until the administra-
234 Bell et al. v. The People. [Nov. T.
Opinion of the Court.
tion of the estate was in fact closed by the payment of all
claims against it, and of the expenses of administration.
The other point made we think is well taken. Frick was
appointed administrator of the estate in January, 1874, and
did not die until December, 1877, more than three years after
his appointment, and long after he had been appointed guar-
dian of the heir of the estate. Ample time had elapsed in
which to complete the administration of the estate^ and, as we
understand the admissions in the record, he had in fact re-
duced all the personal effects of the estate to his possession
that could be collected, except, perhaps, a small amount, and
had paid all claims allowed against it, with the exception of
two, both of which were insignificant in amount. Although
he made no reports to the county court of his acts and doings
as such administrator, the administration of the estate was
practically closed long before the death of the administrator.
The funds not wanted for the payment of claims and expenses
of administration remained in his hands, and nothing remained
to be done but to formally charge himself with the funds on
hand as guardian of the heir of the estate.
The fact that Frick, from time to time, paid out funds on
behalf of his ward, as the same were needed, to defray cur-
rent expenses, is evidence that he treated the residue of the
estate unexpended by him as administrator as funds belonging
to his ward. Entries of such expenditures made in his books
are corroborative of the same fact. But this is not all. Since
the death of the administrator, there has been found among
his private and official papers a memorandum-book that be-
longed to him in his lifetime, which contains entries, in his
handwriting, in relation to his trust as guardian of Mary E.
Evans. In a schedule contained in the record the entries
made in the memorandum-book are set out in hcec verba, from
which it appears that, after making a brief statement of the
total amount received from the estate of which he was admin-
istrator, and of the amounts paid out, including the widow's
award, the deceased then stated the balance due his ward and
1879.] Bell et al. v. The People. 235
Opinion of the Court. .
the amount paid out on her behalf, together with a statement
of rents received, the last entry being of the date of Novem-
ber 27, 1877; and the admission in the record is, that at the
time of his death the administrator had in his hands moneys
and effects unaccounted for nearly equal to the sum he states
in that memorandum, under the date of February 13, 1877,
was due the ward, and the exact amount for which judgment
was rendered.
These entries were equivalent to formal charge of the then
unexpended funds of the estate to himself as guardian of the
heir; but even that was not indispensable to charge him with
such funds as guardian. After completing the administration
of the estate, as we have seen he did, by the payment of all
debts and the expenses of administration, it was his duty to
pay the funds unexpended to the guardian of the heir, and,
as he bore that relation to the heir himself, he could do nothing
more than retain such funds in his hands for the benefit of
his ward, which all the circumstances show he did. An
authority for this view of the law is found in Karr v. Karr,
6 Dana, 4, where the same person was executor or adminis-
trator of the estate and guardian of a distributee, and before
his death made no settlement or election showing in which
capacity he held the unexpended funds in his hands ; it was pre-
sumed, after a reasonable time for settling the estate had elapsed,
that he held such funds — at least that portion that was not neces-
sary for the payment of debts, as guardian of such distributee.
Reasoning upon the facts of the case, the court said, had the
guardian been another person, it would have been his duty to
coerce payment from such administrator, but as he was him-
self the administrator, he could only treat the funds as belong-
ing to his ward.
In Watkins v. Shaw, 2 G. & J. (Md.) 220, it was said : " This
court are of opinion that where a sole executor sustains the
twofold character of executor and guardian, the law will ad-
judge the ward's proportion of the property then in his hands
to be in his hands in the capacity of guardian, after the time
236 Bell et al. v. The People. [Nov. T.
Opinion of the Court.
limited by law for the settlement of the estate, whether a final
account has been passed by the orphan's court or not, upon
the principle that what the law has enjoined upon him to do
shall be considered as done, and from that time he holds the
ward's proportion of the property, by operation of law, in
that character in which he would be entitled to receive it
upon final completion of his trust as executor."
The case of Carroll v. Bosley, 6 Yerger, 220, was a suit on
an administration bond. One of the sureties sued pleaded
that before the appointment of defendant as administrator de
bonis non he had been appointed guardian for the party for
whom the suit was brought, and who would be entitled to the
estate under the will of the testator; that he gave bond and
security as guardian according to law, and that more than two
years had elapsed from the date of the administration bond
before suit was brought; that while the administrator united
in himself both the office of administrator and guardian, he
had in his hands all the assets of the estate which were left
after the payment of debts, and that by operation of law
the amount due him in right of his ward was retained by and
vested in him as guardian. On demurrer to the plea, the only
question made was whether, as the principal defendant was
both administrator and guardian, the law will presume he
held the property and money of the estate as guardian after
the expiration of two years from his appointment as admin-
istrator, although he had done no act to indicate in what
character he held, and the court ruled that "as it was his duty
to settle the administration in two years and pay over to the
guardian, the law will presume he performed the duty, and
and consequently the presumption is that after two years he
held the assets as guardian. "
In Taylor et al. v. Deblois, 4 Mason, 131, the question made
was whether the administratrix, being at the same time guar-
dian, could, by any act of her own or by operation of law,
transfer the property which was in her hands as assets of the
intestate so as to make it the property of the minors who
1879.] Bell et al. v. The People. 237
Opinion of the Court. „
were her wards, and thus exonerate herself from any further
liability as administratrix, and by consequence also exonerate
the sureties upon her administration bond, and it was held
that the assets in her hands could be so transferred, both by
the act of the administratrix indicating an election to hold as
guardian, and by operation of law. After a close and logical,
consideration of the question raised, Story, J., said: "Here,
after the guardianship, the administratrix having assets to
pay the amount of the distributive shares, it was presently
satisfied by way of retainer, and by operation of law there
was a transmutation of the same to her as guardian, and she
no longer held the same as administratrix."
In Pratt et al. v. Northam et al. 5 Mason, 95, after ap-
proving of the principle declared in Taylor v. Deblois, Story,
J., said: "If any act had been done by" the administrator
"by which he elected to pass the property to his guardianship
account, or if he had charged himself with it in the probate
court as guardian," it would bring the case in hand within the
principle of the case cited. According to the decision in
Pratt v. Northam, the administrator may indicate his election
to hold the funds in his hands in the capacity of guardian by
an act done out of court as effectually as if the same act were
done in court. The account the administrator in this case
stated in his memorandum book, where he charged himself
with the funds remaining in his hands as guardian, indicates
as clearly his election to hold such funds as guardian as
though the statement he made had afterwards been filed in
the office of the clerk of the court or with the court.
The cases cited bear a striking likeness, both as to the facts
and principles discussed, with the one at bar. As we have
seen, the funds remaining in the hands of Frick at his death
were not needed for the payment of the debts or other charges
against the estate, and as it was not necessary for him to retain
them for that purpose, the presumption may well be indulged
he treated such funds still remaining in his hands as belong-
ing to his ward. The admitted fact that the guardian from
238 Bell et al. v. The People. [Nov. T.
Mr. Justice Craig, dissenting.
time to time paid out money to discharge the current expenses
of his ward and credited the same to himself as guardian,
tends strongly to corroborate this view. That Frick assumed
to act, and did act as guardian under his appointment, is con-
clusively proven by the fact he collected rents for his ward,
and we may well believe he took to himself all funds that
belonged to him in that capacity.
It was not indispensable there should have been an order
of the county court to transfer the funds remaining in the
hands of the administrator after payment of all claims
against the estate, to the guardian of the heir of the estate.
Of course that is the more regular way, but when the same
person acts in the dual capacity of administrator, and guar-
dian of the heir of the same estate, it will be sufficient if he
treat the funds in his hands as belonging to his ward and
held in his capacity as guardian, and it will be presumed he
does so after a reasonable time has elapsed for the settlement
of the estate, or, as in this case, where it appears the estate
has been in fact administered. The principle declared in Weir
v. The People, 78 III. 192, supports this view of the law.
Under the law as we understand it, the sureties on Frick's
bond as administrator of the estate of Evans, are not liable
for the funds that came to his hands from the estate and
unaccounted for at the time of his death, and the judgment
must be reversed and the cause remanded.
Judgment reversed.
Mr. Justice Craig, dissenting :
I can not concur with the majority of the court in the
decision of this case. In my judgment, under the provisions
of our statutes the sureties on the bond of Frick, as admin-
istrator of the estate, are liable for the amount of money
which he received as administrator, and which has never been
accounted for. Of the money which the administrator re-
ceived belonging to the estate, he died with $5797.14 in his
hands, no part of which has been paid over to the person
entitled thereto or otherwise accounted for.
1879.] Bell et al. v. The People. 239
Mr. Justice Craig, dissenting.
Section 58, Eev. Stat. 1874, page 114, provides that execu-
tors and administrators shall be chargeable with so much of the
estate of the decedent as they might or shall receive. Section
111 requires executors and administrators to exhibit accounts
of their administration for settlement to the county court at
the expiration of the first year after they were appointed, and
every twelve months thereafter, until the duties of their admin-
istration are fully completed, and no final settlement shall be
made and approved by the court until the heirs of the dece-
dent are notified, in such manner as the court shall direct.
No account was ever rendered by the administrator to the
county court for its approval ; nor was any order ever made
by the county court directing or requiring the administrator
to pay over to the guardian any portion of the estate which
was in his hands as administrator.
The theory of the majority of the court, as I understand
the opinion, is, that the presumption of law arises that Frick,
as administrator, paid over the funds in his hands, after the
expiration of the time provided by law for the settlement of
the estate, to himself as guardian, and upon this presumption
alone the sureties on the administrator's bond are released
from liability. If a presumption of that kind could arise in
any case, it is, in my opinion, rebutted by the facts presented
by this record, and can have no application here. In the first
place, the statute has not prescribed a definite time in which
the administrator shall settle the estate, as did the statute of
1845; and hence it is not seen when it can be presumed the
money passed to the guardian. Again, before an administra-
tor can close the administration of the estate, and make dis-
tribution among the heirs, he is required to render an account
to the county court, in order that it may be known by him
and all concerned what amount of money is to be distributed,
and an order of distribution must be obtained. This was not
done. Besides, the fact that when Frick died there were
claims against the estate unpaid, and notes and accounts in
his hands belonging to the estate uncollected amounting to
240 Bell et al. v. The People. [Nov. T.
Mr. Justice Craig, dissenting.
$7800, would seem to show conclusively that Frick had not
closed up the administration of the estate, and that the assets
of the estate were still in his hands as administrator.
There is another fact that has an important bearing on the
question. Section 22, Rev. Stat. 1874, page 560, requires a
guardian to put and keep his ward's money at interest, upon
security to be approved by the court, or invest the same in
United States securities; but it nowhere appears that a single
dollar of the money was ever loaned as required by law. If,
therefore, it is to be presumed that the guardian did his duty,
as it was presumed the money passed from the hands of the
administrator to the guardian, the fact that no part of the
money was ever loaned or invested as guardian, would seem
to be clear and direct proof that he was not acting in the
capacity of guardian with the money which had come to his
hands as administrator, but still held and retained the same
as administrator of the estate.
Importance is attached to the fact that a memorandum was
found in a private book of Frick, after his death, which shows
the amount of money which originally came into his hands as
administrator, amount paid out, and that the balance belongs
to his ward. I do not think this memorandum can have any
bearing on the case, as it fails to show that he had the money
in his possession when it was made; nor does it show in what
capacity the money was in his hands. Whether Frick, as
administrator, owed his ward the amount named, or whether
as guardian, is entirely uncertain. But I do not regard the
memorandum as competent evidence in this case. While it
might be used as evidence against the administrator and his
sureties for the purpose of fixing the amount in his hands
belonging to the plaintiff, I am aware of no rule of evidence
under which the defendants could introduce this memorandum
for the purpose of showing that the administrator had paid
out the money. It is a mere declaration of a co-defendant,
which could not be used as evidence in his own favor. If the
defendants had proven that the administrator, after sufficient
i
1879.] Bell et al. v. The People. 241
Mr. Justice Craig, dissenting. ^
time had elapsed for closing the estate, actually had in his
hands the amount of money which of right should pass over
to the guardian, there would be more plausibility for holding
that the money passed into the hands of the guardian; but
such was not the case. For aught that appears, the adminis-
trator may have squandered the funds that belonged to the
estate long before it was his duty to make final settlement.
Under such circumstances, no reason suggests itself to my
mind why the sureties on the administrator's bond should be
released.
The evidence shows that the money came into the hands of
Frick as administrator, and the least that could be required
of the sureties on his bond is, to establish by proof that the
administrator paid over the money to the guardian, or held it
in his hands as guardian. This has not been done; but the
sureties are released on a legal presumption, which may or
may not have any foundation in fact. I can not sanction a
doctrine which may lead to such disastrous results in the
administration of estates. The better and by far the safer
rule is, to require an administrator to make final settlement
with the county court, and have his accounts approved and
an order entered for the payment of the money in his hands
to a guardian or other person entitled to the same, and an
actual payment made, before the sureties are released. It was
the duty of the sureties to see that the administrator faithfully
discharged his trust. The bond they executed was given for
that purpose, and, in my judgment, the administrator has
failed to account for the money which came into his hands,
and his sureties should be held responsible according to the
terms and conditions of the bond which they executed.
In support of the principle announced in the opinion of
a majority of the court, Carroll v. Bosley, 6 Yerger, 220, is
referred to as an authority, but upon a close examination of
the case it will be found that an important fact existed in it
upon which the decision turned, which does not exist in
this case. In the case cited, where the time expired in which
16—94 III.
242 Bell et al v. The People. [Nov. T.
Mr. Justice Craig, dissenting.
the administrator was allowed to settle and close up the estate,
it appeared that he had the assets in his hands ready to be
paid over to the guardian, and upon that ground the court held,
as he had the money ready to be paid over, by operation of
law it would be vested in the guardian. It was there said:
"If he had wasted the estate as administrator, before the time
at which by law it was his duty to settle up and close his
administration, the case would have been altered, and that fact
should have been replied. But here it is averred that he had
the assets in his hands; and having the money so in his
hands, the amount due his ward was satisfied by way of re-
tainer." As it does not appear by this record that the admin-
istrator had the assets ready to be paid over when the time
had expired allowed him to settle the estate, it is evident the
case cited can not control here.
Karr v. Karr, 6 Dana, 4, is also relied upon, but in that
case no controversy arose between the two sets of sureties;
nor was there any question of defalcation in the case, and it
is not perceived what bearing the case can have here.
The principal case, however, relied upon is Taylor v. Deblois,
4 Mason, 131; but the facts upon which that decision was
rendered were so different from the facts of this case that it
can not control here. In that case the same person was admin-
istrator and guardian; but, from a statement of facts upon
which the decision was rendered, it appears that "in 1808 the
administratrix signed a certificate to the probate court, stating
that as guardian she had in her possession or control the full
amount of the distributive share of these minors; and there-
upon the court ordered a quietus to be given to her as adminis-
tratrix of her husband. This quietus, in substance, stated that
she having fully administered the estate, the court ordered that
she be and hereby is from henceforth acquitted and discharged
of the same." Under these facts the court very properly decided
that the money was held by Mrs. Deblois in the capacity of
guardian; but it will be observed that the decision is founded
on the fact that the administratrix made a report of her doings
1879.] Bell et at v. The People. 243
Mr. Chief Justice Walker, dissenting. >.
as such to the probate court, which was approved, and she
was thereupon discharged from further duties as administra-
trix. In her report it appeared that she then had on hand
the distributive share of the money belonging to the minors.
I am willing to concede that if Frick, as administrator, had
made a like report, and obtained a like -order thereafter, he
would have held the money as guardian, and his sureties
would have been released; but as he did nothing of the kind,
the case cited can give no comfort to the position taken by
the majority of the court.
The case of Wilkins v. Shaw, 2 G. & J. 220, has also been
cited. I have had no opportunity to examine this case, and
do not know the facts upon which the decision was rendered,
but I am satisfied it will turn out, on examination, to be like
the other cases.
These are the authorities relied upon to sustain the position
that the sureties on the bond of the administrator are not
liable, except the case of Weir v. The People, 78 111. 192,
and the facts of that case are so widely different from this
that a reference to it is not necessary. In my judgment, the
authorities cited entirely fail to sustain the position taken by
a majority of the court, and upon what principle the sureties
on an administrator's bond ought to be released, where the
administrator has disregarded all the requirements of the
statute in the settlement of an estate, and finally squandered
the money which belonged to the estate, and failed to pay it
over, I can not well understand.
Mr. Chief Justice Walker : I concur in the views ex-
pressed by my brother Craig, and dissent from the conclusion
reached by the majority of the court.
244 Faiefield et al. v. The People ex rel. [Nov. T.
Syllabus.
Edmund B. Fairfield et al.
v.
The People ex rel. Samuel H. McCrea, Collector, etc.
1. Taxation — whether for corporate purpose, and herein, as to the validity of
an enabling act in respect to back taxes. The tax ordered to be levied by the
common council of the city of Chicago for municipal expenditures for the
years 1873 and 1874, was for a corporate purpose and within the appro-
priation ordinances of those years, and the act of 1877 authorizing cities and
towns to collect back taxes, the collection of which had been defeated, does not
require the imposition or levy of a new tax, but the act is merely remedial to
aid in the remedy to enforce a pre-existing right, and therefore the collection
of such back taxes is not for the payment of debts contracted in excess of the
constitutional limitation of the power of the city to create indebtedness.
2. Where a city levies a tax within its authorized powers but fails to collect
the same, the levy being defective in not having been made in the time required
by law, and because not certified to the county clerk for extension, it is com-
petent for the legislature subsequently to authorize their collection by certify-
ing the proper amount of the levy to the county clerk, and having the same
extended upon the assessment of the year for which they were levied, the
same as might have been done at the proper time.
3. Under the act of 1877 for the collection of unpaid back taxes, the com-
mon council has nothing to do in the way of the imposition of taxes, but is
merely to ascertain and cause to be certified what was done by the former
common councils, and the only limitation is that such amount shall not exceed
the appropriation ordinances for the years in which such taxes were levied.
4. The fact that the municipal expenses of a city have been paid for cer-
tain years in which the collection of its taxes was defeated, presents no
constitutional or other grounds why such back taxes may not be collected
under appropriate enabling legislation, it being a cardinal principle of taxa-
tion under the constitution that each shall contribute his share towards gov-
ernmental expenses in proportion to the value of his property.
5. Nor will the fact that such back taxes levied are not now needed, and will
not be applied to the particular corporate purposes for which they were origi-
nally required when attempted to be collected, render their collection improper.
They will still belong to the corporation for municipal purposes, and, like any
other surplus, will remain in the treasury subject to future appropriations,
and thereby lessen future taxation.
6. Same — actual levy not essential to lien. It is not essential to the lien given
by law for taxes, that an actual levy should be made within the year. If not
made within the year and the taxes are not paid, it is competent by subsequent
1879.] Fairfield et al v. The People ex reL 245
Opinion of the Court. \
legislation to enforce the lien, by authorizing the levy and collection in sub-
sequent years upon the assessment of the proper year or years.
7. Same — uniformity. Where the collection of a tax has been defeated for
defects in the levy, or other proceedings not going to the right to levy the
same, and some of the taxes have been voluntarily paid, a law authorizing
the proper extension and collection of such taxes, which provides for
giving credits to the parties paying personal taxes and to the land for the
taxes voluntarily paid on the same, is not in violation of the constitutional
provision requiring uniformity.
8. Same — construction of act of 1877. The act of 1877, giving power to the
common council to determine and certify the amount which was required to be
raised by taxation for all municipal purposes for any prior years, for or
during which an assessment or levy was attempted to be made, means the
amount that was by the action of the city council in such prior years required
to be raised by taxation for those years, and not merely for a sum sufficient
for the city expenses over and above the means and revenue derived from
licenses and other sources.
9. Appropriation ordinance — when passed. Where an appropriation
ordinance was passed within the time limited by law, and the mayor afterwards
vetoed some of the items, and after the time fixed for passing such ordinance
the city council passed most of the vetoed items over the veto, it was held
that the ordinance was passed in time, the subsequent action of the council
amounting in law merely to an adherence to appropriations already made.
Appeal from the Appellate Court of the First District.
Mr. John P. Wilson, for the appellants.
Mr. Francis Adams, Mr. George W. Smith, and Mr.
Joseph Bonfield, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
The city of Chicago attempted to assess, levy and collect
municipal taxes for the years 1873 and 1874, under and by
virtue of an act of the General Assembly entitled "An act
in regard to the assessment of property and the levy and col-
lection of taxes by incorporated cities in this State," approved
April 15, 1873, known as the " City Tax act," (Rev. Stat. 1874,
p. 254.) The validity of the taxes so attempted to be levied
and collected was contested by certain of the tax-payers, and
this court decided, in the case of The People v. Cooper, 83
246 Fairfield et al. v. The People ex rel. [Nov. T.
Opinion of the Court.
111. 585, that said statute was unconstitutional, and upon that
ground such tax-payers succeeded in defeating the collection
of the taxes.
In 1877 the General Assembly passed an act entitled "An
act in regard to the assessment, levy and collection of the
taxes of incorporated cities in this State for years prior to the
year 1877," and in force July 1, 1877. Laws of 1877, p. 56.
The city of Chicago proceeded to act under the last named
act, and caused the city taxes for the years 1873 and 1874 to
be extended upon the State and county assessment for those
years. At the July term, 1878, of the county court of
Cook county, application for judgment was made against the
real estate alleged to be delinquent for said city taxes, and
appellants filed objections. The county court overruled the
objections, and entered judgment for the taxes claimed in the
application, less sixteen per cent of the taxes of 1873 and
fourteen per cent of the taxes of 1874, from which judgment
an appeal was taken to the Appellate Court for the First Dis-
trict, where the judgment of the county court was affirmed, to
reverse which judgment of the Appellate Court this appeal is
prosecuted.
The first section of the aforesaid act, approved May 5, 1877,
is as follows:
"Section 1. That in all cases where any incorporated city
in this State has attempted to assess, levy or collect taxes for
any year or years prior to the year A. D. 1877, under or by
virtue of the provisions of an act entitled ' An act in regard
to the assessment of property and the levy and collection of
taxes by incorporated cities in this State/ approved April 15,
1873, or under or by virtue of any unconstitutional law, or
any law which has been declared unconstitutional or void by
the Supreme Court of this State, and in all cases where the
assessment of property for the purpose of taxation, or the
tax levy made by any city for any year prior to the year
1877, has been declared void or unconstitutional, or has been
set aside, and such city has failed to collect the taxes so
1879.] Fairfield et al. v. The People ex rel. 247
Opinion of the Court. •,
attempted to be assessed and levied, or any part thereof, the
city council or common council of such city may, by ordi-
nance, ascertain and determine and cause to be certified to the
county clerk of the county in which such city is situated, on
or before the second Tuesday in August, in any year, the
total amount which wTas required to be raised by taxation for.
all municipal purposes of said city, for any year or years
prior to the year 1877, for or during which an assessment or
levy was attempted to be made as aforesaid, the amount so
certified for any year not to exceed the total amount of all
appropriations made by such city for such year. Such
certificate, made to the county clerk as aforesaid, shall be
prima facie evidence that the amount certified does not ex-
ceed the sum total of the appropriations for the year for
which such amount is certified."
Section 2 provides for the ascertainment by the county clerk
of the rate which will produce the amount certified, the ex-
tension of the tax upon the assessment for State and county
purposes for the year for which such taxes are certified to
have been required, the issuance of warrants to the officers
charged with the collection of State and county taxes, and
that the collection shall proceed in the same manner, and by
the same officers, as in the case of State and county taxes.
Section 3 provides that all payments made on account of
the taxes upon any such former assessment or levy, shall be
deemed to have been voluntary payments, but shall be cred-
ited to the person paying the same when paid as a personal tax,
and to the land in respect to which the same were made when
paid as a real estate tax; and in case the payment shall equal
the amount of tax extended under the present law, nothing
shall be collected, and, if less, then the difference only shall
be collected.
It is objected that the city taxes, for which judgment was
rendered in this case, were not levied for corporate purposes
of the city of Chicago, and so not warranted by the constitu-
tion of this State; it being well settled that thereunder taxes
248 Faikfield et al. v. The People ex rel. [Nov. T.
Opinion of the Court.
can only be levied by municipal corporations for the corpo-
rate purposes of the municipal corporation levying the tax.
The argument by which the objectors reach the conclusion
that the taxes were not levied for corporate purposes, is in
this wise: That the taxes were levied for the municipal ex-
penditures of the years 1873 and 1874, and for no other pur-
pose; that it was proved or offered to be proved that the entire
expenditures of the city in 1873 and 1874 were met and paid
by voluntary contributions of the citizens prior to the passage
of the law of 1877, such voluntary contributions being taxes
for 1873 and 1874, which were voluntarily paid; that it ap-
peared that the bonded debt of the city of Chicago, in the
year 1872, exceeded the constitutional limitation of five per
cent, and has, ever since, continued in excess of said limita-
tion, whence, it was beyond the power of the municipal
authorities of Chicago to create any debt or obligation against
the city during the years 1873 and 1874, which could be
made the basis of subsequent taxation; that if the expendi-
tures in 1873 and 1874 created an obligation to levy a tax in
the future, they created a debt, and that could not then be
done; that the corporate purposes of 1873 and 1874 had been
subserved and had ceased to exist, and that a corporate pur-
pose which has ceased to exist can not be made the basis
of present taxation; that these taxes were levied in 1877;
that there is no object to which the present taxes, if collected,
could be lawfully applied; that taxes levied to raise a fund
to lie idle in the city treasury, are not levied for a corporate
purpose.
The defect in the argument is in the assumption that this
was a levy of taxes in 1877, and treating the act of 1877 as
though it were. one authorizing original taxation, and laying
out of view the character of the act as being purely reme-
dial. The act is not one creative of any right, but it is one
merely in aid of the remedy for the enforcement of a pre-exist-
ing right. It is not to authorize the imposition of taxes, but
it is simply to enable cities to collect their back taxes. In the
1879.] Fairfield et al. v. The People ex rel. 249
Opinion of the Court. ^
years 1873 and 1874 these taxes were needed and required
for a corporate purpose, — to pay the municipal expenses of
those years.
There was an appropriation ordinance for 1873 and 1874.
The city council had the power, irrespective of the "city
tax act," to pass the appropriation ordinance. There was a
valid assessment, made under the general Revenue law, upon
which the taxes required to be raised or the amount required
to be raised by taxation might have been extended. It was
an assessment made under that law by the town assessors,
reviewed by the town board, equalized by the county board,
and equalized by the State Board of Equalization. That
assessment for 1873 and 1874 stands now, and on that assess-
ment the taxes have been extended under the operation of the
act of 1877.
Levy ordinances were, in fact, passed in 1873 and 1874,
from which was ascertainable the amount required to be raised
by taxation in 1873 and 1874; and the amounts did not
exceed the amounts named in the appropriation ordinances.
But they were defective in not having been passed before the
second Tuesday of August, as required by the general Reve-
nue law, and the supplemental act of certifying to the county
clerk the amount required to be raised by taxation, as required
by that law, was wanting.
Had this act of certifying to the county clerk been done as
required, then the collection of the taxes might have been
proceeded with and effectually enforced under the general
Revenue law. The power and authority to that end were
ample under that law.
The irregularity was, in not proceeding to the end under
that law and having the collection of the taxes made in the
manner and by the same officers the State and county taxes
were ; but instead thereof, acting mistakenly by seeking to
have the collection made by the city officers under the uncon-
stitutional "city tax act."
Now, this statute of 1877 takes up the process of the col-
250 Fairfield et al. v. The People ex rel. [Nov. T.
Opinion of the Court.
lection of the taxes for 1873 and 1874 at the point where the
irregularity occurred, and enables the collection to be pro-
ceeded with from that point, as it might have been, and
should have been proceeded with at those times. The statute, in
substance, but extends the time for the performance of an act
which the common council might formerly have performed,
to-wit : to certify to the county clerk the amounts which they
required in those years to be raised by taxation, and giving
like effect to the act, as if then done.
Under this act of 1877 the city council does nothing itself
in the way of the imposition of taxes.
Its function is merely to ascertain and determine and cause
to be certified what was done by the former common councils —
in the language of the act, " by ordinance ascertain and de-
termine and cause to be certified to the county clerk of the
county * * * the total amount which was required to
be raised by taxation for all municipal purposes of said city
for any year or years prior to the year 1877, for or during
which an assessment or levy was attempted to be made, as
aforesaid." This is all that the city council does under the
act in the way of levying any tax. Such action clearly is not
the levy of a present tax. It is merely the ascertainment
and certification of a former step taken in the attempted levy
and collection of taxes for prior years. And if the taxes for
those years, at the time they were attempted to be assessed,
levied and collected, were then for municipal purposes, we
are of opinion that the objection does not well lie now to the
taxes, that they were not levied for corporate purposes.
It is by our constitution a cardinal principle of taxation that
all shall contribute to raising revenue for governmental pur-
poses in proportion to the value of their property. It was
the duty of these objectors to have thus contributed to the
municipal expenses of the city in the years 1873 and 1874.
The enforcement of this duty was entered upon by the
attempted levy and collection of taxes for those years on
their property, and failed only from an irregularity in the
1879.] Fairfield et al. v. The People ex rel. 251
Opinion of the Court.
mode of procedure. What if the expenses of those years
have been paid and satisfied? It was from the taxation of
others, and not from any contribution made by the objectors.
Their taxes remaining uncollected, the result would be that
they would escape the payment of their just proportion
toward the maintenance of municipal government, while others,
would bear more than their proportion of it. In avoidance
of such injustice, and in assertion of the constitutional prin-
ciple of equality of taxation, was the enactment of 1877.
The act merely provides that what might and should then, in
the former years, have been done, may now be done. The
taxes were at the time, in 1873 and 1874, authorized in the
respect of having the basis of a corporate purpose to sustain
them. Because the taxes are not now needed for, and will
not be applied to, the particular corporate purpose for which
they were required at the time they were attempted to be
levied and collected, the municipal expenses of 1873 and
1874, it does not follow that when collected they will not be
applied to some municipal purpose. They would belong to the
corporation, and would, like any other surplus, remain in the
treasury subject to future appropriations for municipal pur-
poses, and thereby lighten future taxation and thus operate
in the equalization of the burden of taxation. In Village of
Hyde Park v. Ingalls et al. 87 111. 11, where there was an
item of some $22,000 in the tax levy of the village to pay
expense of collection and deficiencies in collection, this court,
in answer to an objection to this item, said : "A surplus
may undoubtedly be brought into the treasury by this mode
of levying, but it will not be lost. It will belong to the cor-
poration, and may be used in extinguishing other debts or in
the payment of current expenses, and thereby lighten future
taxation."
The citation from Cumberland County v. Webster, 53 111.
141, where it was said, "It can not be held that the board of
supervisors may at pleasure force the people to pay heavy
taxes simply that the money may be placed in the county
252 Fairfield et al. v. The People ex rel. [Nov. T.
Opinion of the Court.
treasury, and, so far as we can see, never be appropriated," is
not applicable here. Such is not this law of 1877. If the
result shall be that money will come into the city treasury
unappropriated to any particular purpose then existing, it
will be the mere incidental effect of the operation of a law
which has for its sole object the enforcement of the collection
of the unpaid taxes of former years.
The act of 1877 may be viewed as one to assist the remedy
for the enforcement of a lien.
Section 253 of the general Revenue law is as follows :
"The taxes assessed upon real property shall be a lien thereon
from and including the first day of May in the year in which
they are levied until the same are paid." Almy v. Hunt,
48 111. 45, was an action for a breach of covenant upon a deed
made in October, 1865, plaintiff claiming that the taxes for
1865 had not been paid by defendant as covenantor. It was
there said that a lien for taxes, and an assessment or levy, are
different things; that the action of the board of supervisors
has nothing to do in the creation of this lien; that their
assessment but fixes the amount, the payment of which will
discharge the lien.
It was further said : "Appellant makes another objection,
that the tract was not properly listed for taxation for 1865,
nor was there any legal levy of taxes upon it, the lot having
been misdescribed, and consequently, no taxes were collectible
upon it for that year. This last proposition might be admit-
ted, yet, if there was a lien upon it, as we have shown there
was, the covenant was broken, as the lien had to be removed."
It is then stated that the lot was not misdescribed.
This case appears*to hold that it is not necessary for the
lien that an actual levy should be made within the year. If
not, then the lien arising under the statute on the first day of
May in 1873 and 1874 for the taxes of those years, might be
considered as continuing, and under the act of 1877 there
Avould be a remedy for the enforcement of the lien. And this,
1879.] Fairfield et al. v. The People ex rel. 253
Opinion of the Court.
at least as against the then owners of the property in 1873
and 1874, would be no more that just.
Remedial statutes of the character of the one in question
are of frequent occurrence in the exercise of legislation, and
have been almost uniformly sustained.
Kent says, upon the subject: "A retrospective statute
affecting and changing vested rights is very generally consid-
ered in this country as founded on unconstitutional principles,
and consequently inoperative and void. But this doctrine is
not understood to apply to remedial statutes, which may be of
a retrospective nature, provided they do not impair contracts,
or disturb absolute vested rights, and only go to confirm
rights already existing, and in furtherance of the remedy by
curing defects and adding to the means of enforcing existing
obligations." 1 Kent Com. (12th ed.) 455.
Unless there be some constitutional restriction the legisla-
ture may authorize a municipality to levy and collect retro-
spective taxes, and for this purpose use the assessment roll of
a previous year. 2 Dill. Mun. Corp. 595. In Cowgill v. Loyig,
15 111. 202, a case of a remedial statute in respect to a school
tax defectively voted, this court said: "Laws of this charac-
ter are often passed to secure the collection of taxes defectively
levied, and there can be no serious objection to their validity."
Hosmer v. The People, Sept. T. 1875, is the case where an ap-
plication for a judgment against lands delinquent for the un-
paid taxes of former years, in pursuance of the 277th section
of the general Revenue law, was sustained.
It is next objected that the taxes in question are not uniform
as .to persons or property within the city of Chicago, as, under
the constitution, they should be. The respect wherein this
alleged want of uniformity is supposed to consist, is in the pro-
vision in section 3 of the act of 1877 for credits upon the
amounts levied under its provisions of voluntary payments
made in 1873 and 1874.
It is argued that these voluntary payments were mere
advances made to the city in 1873 and 1874, which was at a
254 Faiefield et al. v. The People ex rel. [Nov. T.
Opinion of the Court.
time when the city could not incur any debt or obligation by
reason of its having reached its constitutional limit of indebt-
edness, and that it is the effect of the above provision that
taxes are levied under this statute of 1877 and applied to the
payment of a supposed debt or obligation of the city on
account of these advances, which debt or obligation the city
was incapable of incurring. This proceeds upon the same
erroneous theory as the previous objection did, which treats
the statute as one providing for the imposition of taxes origi-
nally, and that there is a present original levy of taxes under
the statute ; whereas the statute is one which deals merely
with the remedy in respect to the collection of former taxes
which had been attempted to be collected in an illegal way,
adopting what had been before done, so far as legal, and
enabling the process of the collection of the taxes to be gone
forward with in the legal mode now as of the time when it
might and should have thus proceeded. These deemed vol-
untary payments by the statute, and called advances in the
argument, were taxes which had been paid voluntarily.
Although the payment of the taxes could not have been com-
pulsorily enforced, in the manner they were being attempted
to be collected, they were nevertheless voluntarily paid. The
payments were as and for the taxes, and so accepted by the
city; and the provision in question as to credits is merely
that persons shall not be required to pay their taxes a second
time.
Viewing the statute in its true nature, nothing could be
more just than this provision, and the want of it, requiring
those who had voluntarily paid their taxes to pay them again,
would have been entirely unwarrantable upon any principle
of enlightened legislation. If authority be needed upon such
a point, reference may be made to Union Building Association
v. City of Chicago, 61 111. 440, where, upon the subject of
making a new special assessment in a case where there had
been a former illegal and void one, this court uses the follow-
ing language :
1879.] Faikfield et al. v. The People ex rel. 255
Opinion of the Court.
" Where no payments have been made, and from the cir-
cumstances of the work the amount of the costs and expense
rests upon estimates alone, then it (the new assessment) must
be made in all respects like a first assessment. But when
payments have been voluntarily made under the original, in
whole or in part, then, although such original assessment may
be void, still the payments must be allowed to apply; — if in
full, they operate to discharge the land in respect to which
they were made, if partial, they are a discharge pro tanto. It
would be against the rules of a sound public policy to permit
the city to receive such payments, then, alleging the invalidity
of its own proceedings, repudiate them, and subject parties
who have acted in the spirit of obedience to the law, to the
costs, trouble and expense of overhauling proceedings already
carried to full satisfaction by the voluntary acts and mutual
consent of competent parties."
In Tollman v. The City of Janesville, 17 Wis. 71, it was
held that an act passed in 1862, quite similar to that in ques-
tion here, (made necessary to avoid difficulties growing out of
previous unconstitutional taxation), providing for a reassess-
ment of the taxes for 1854, 1855, 1856, and 1857, in the city
of Janesville, was constitutional. The act contained a similar
provision as here for credits to those who had paid their taxes
voluntarily, and the constitution of Wisconsin had the same
provision as our own, that the rule of taxation should be
uniform. Cross v. The City of Milwaukee, 19 Wis. 509, is a
like case. It is answered to the authorities from other States,
which are substantially unanimous upon the question of the
validity of such laws, that they are not applicable here, owing
to the peculiarities in our constitution of the limitation of the
extent of municipal indebtedness, and the denial to the legis-
lature of the power to impose taxes upon municipal corpora-
tions. We do not consider the peculiar provisions of our
constitution referred to as excluding the applicability of the
authorities.
256 Fairfield et al. v. The People ex rel. [Nov. T.
Opinion of the Court.
The taxing power of a State is absolute and uncontrolled,
except so far as it is limited by constitutional provisions.
Eurigh v. The People, 79 111. 214.
The only grounds of constitutional objection which are
urged, are those considered in respect of the want of corpo-
rate purposes and the want of uniformity because of the pro-
vision for credits of taxes paid. We do not find them to be
sufficient.
It is insisted further, that the taxes levied for each of the
years 1873 and 1874 are greater in amount than was author-
ized by the act of 1877.
This claim is based on the interpretation which the objec-
tors put upon the statute of 1877, as respects the amount to
be certified to the county clerk as required to be raised by
taxation. The language of the statute, in this respect, is,.
that "the city council or common council of such city may,
by ordinance, ascertain and determine and cause to be certi-
fied to the county clerk, etc., the total amount which was
required to be raised by taxation for all municipal purposes
of said city for any year or years prior to the year 1877, for
or during which an assessment or levy was attempted to be
made, as aforesaid; the amount so certified for any year not
to exceed the total amount of all appropriations made by such
city for such year." The objectors say this means the amount
of the actual expenses of the year, after having deducted
therefrom the amount of miscellaneous receipts applicable to
the payment of appropriations; and that ascertaining the
amount to be certified upon these data, the amount actually
levied for each of the years 1873 and 1874 was largely in
excess of the total amount required to be raised by taxation.
It is said that it is not the total amount of legal expenditures
which is by the act authorized to be certified, but the total
amount of legal expenditures "required to be raised by taxa-
tion;" that the city has sources of revenue other than taxa-
tion ; that its income from licenses, and other sources than
taxation, amounts to a large sum each year, and that this
1879.] Fairfield et al. v. The People ex rel. 257
Opinion of the Court. *
should be deducted from the amount to be certified ; that
where the tax is levied for the current year, the tax is limited
to the estimated expenditures; but where the taxes are levied
for a past year, as it is claimed was the case here, they should
be limited to the actual expenditures of the year, less the
miscellaneous receipts, and that such was the intention of the
legislature here.
We are unable to concur in this construction of the statute.
It proceeds upon the same erroneous view, as before no-
ticed, of the character of the statute, and that the levy of the
taxes is made under it as an original levy. The act takes
notice of and presupposes that previous attempt had been
made to assess, levy and collect taxes for prior years under
and by virtue of the unconstitutional " city tax act." The
city here had made appropriation ordinances for the years
1873 and 1874, and had passed levy ordinances from which
was ascertainable the amount then required to be raised by
taxation for those years. And when the act conferred upon
the city council the power to ascertain and determine and
cause to be certified the total amount which was required to
be raised by taxation for all municipal purposes for any prior
years for or during which an assessment or levy was attempted
to be made, we can have no doubt that there was meant
thereby the amount that was, by the action of the city coun-
cil in such prior years, required to be raised for taxation for
the municipal purposes of those years. The construction con-
tended for is not warranted by the language employed, and it
would be inconsistent with, and in defeat of, the very end and
aim of the act, which we take to have been for the securing
of equality of taxation. A large proportion of the taxes for
1873 and 1874, on the basis of the amount which had been
required to be raised by taxation in those years, had been
voluntarily paid. If it was intended that the amount to be
certified to the county clerk, under the act of 1877, should be
for the actual expenses of those years, and no more, the bur-
dens of taxation would necessarily be unequal, and want of
17—94 III.
258 Fairfield et ah v. The People ex rel. [Nov. T.
Opinion of the Court.
uniformity would follow. There was not, under the act of
1877, to be taxation anew for prior years, but the proceeding
was purely remedial for the collection of the taxes of former
years which had been ineffectually attempted to be assessed,
levied and collected; and the certificate named was to be of
something which had been done in such attempt, — the amount
which had been required to be raised by taxation for those
years — in order that the county clerk might extend the tax
upon the assessment which had been made by the town
assessors for such years. The only limit fixed by the statute
to the amount to be certified to the county clerk is, that it
shall not exceed the amount of the appropriations for the
year. This construction is strengthened by reference to the
language used in section 2, in declaring what shall be done
on this certificate being filed with the county clerk. It says,
he shall extend the tax upon the assessment for the year for
which such taxes are "certified to have been required." Not
certified to be required now, or then, or to be required, but
to have been required. Evidencing that the certificate was to
be of Avhat had been required by the action of the council in
the former years.
It is not pretended that the certificate here, as to amount,
exceeds the amount of the appropriations for 1873 and 1874,
nor, as we understand, that it exceeds the amount that by the
action of the city council in those years was required to be
raised by taxation ; the claim being that the certificate should
have been only for the amount of the actual expenses of those
years, less the miscellaneous receipts.
The fact appears that the total appropriations for 1874
were of the exact amount which was levied as taxes for the
year 1874, and that no deduction from this amount was made
for miscellaneous receipts in 1874, which were of a consider-
able amount. It is claimed that this amount of miscellaneous
receipts should haVe been deducted, as it was not raised, or
necessary to be raised, by taxation. This amount levied for
taxes is certified to the county clerk as the amount which was
1879.] Fairfield et al. v. The People ex rel. 259
Opinion of the Court. .,
required to be raised by taxation for municipal purposes for
that year.
On the former defeated application for judgment against
these lands for the taxes of 1874, had the proceedings other-
wise been legal, we do not consider that it would have been
permissible to go behind the appropriation ordinance and
show that the amount of the appropriation made by the coun-
cil, and which they had required to be raised by taxation, was
too large, or that it had been required to be thus raised irre-
spective of the miscellaneous receipts. The appropriations
being for lawful municipal purposes, the amount would rest
in the discretion of the council, and their determination in
that respect, fairly made, would be accepted as conclusive;
and neither the question of the amount of the appropriation
nor of its having been satisfied in whole or in part would
have been gone into, as we conceive. It must be the same,
we think, upon the present application, and that the only
thing to be ascertained is, what was the amount which was
required by the city authorities in 1873 and 1874 to be raised
by taxation for those years for municipal purposes, and that
is to be accepted as the proper amount of the tax.
It is objected that the judgment is too large in the respect
following:
The appropriation ordinance for the fiscal year commencing
April 1, 1873, was passed by the council June 30, 1873, within
the first quarter of the fiscal year. The mayor vetoed certain
items in the ordinance, and his veto message, bearing date
June 30, 1873, was presented to the council at its regular
meeting held July 7, 1873, and the council, at that meeting,
passed most of the vetoed items over the veto.
It is contended that the vetoed items passed over the veto
included in the appropriation ordinance were not passed
during the first quarter of the fiscal year, as required by the
charter of the city, and that, consequently, the including those
items in the judgment was error. The provision, in this re-
spect, of the city charter then in force was: "All appropria-
260 Fairfield et al. v. The People ex rel. [Nov.. T.
Additional opinion of the Court.
tions shall be based upon specific and detailed statements made
by some proper head of a department or officer of a city, and
shall be made within the first quarter of the fiscal year, which
fiscal year shall be held to commence on the first day of April,
in every year."
Also: "Every act, ordinance or resolution passed by the
common council, before it shall take effect, and within five
days after its passage, shall be presented, duly certified by the
city clerk, to the mayor for his approbation." The mayor
had the power to veto any item in the appropriation ordinance.
We are inclined to regard that the appropriations were made
during the first quarter of the fiscal year, within the meaning
of the charter provision, and that the subsequent action of the
council, at the meeting of July 7, 1873, amounted, in law,
merely to an adherence to appropriations previously made,
the mayor's veto to the contrary notwithstanding.
Some of the questions made arise upon the exclusion of
evidence, but we have considered all the excluded evidence
as admitted. There are some minor questions made, which
have not been adverted to by specific mention, but we believe
that what has been said, by the application of the principles
and conclusions which have been announced, disposes virtually
of all the questions which have been raised in the case, ad-
versely to the objectors.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
Subsequently, the following additional opinion was filed :
Per Curiam: After a rehearing had in this case, and a
further full consideration, we adhere to our former decision,
and opinion filed herein, except in a single particular. For
the reasons stated in the opinion in the case of Mcintosh v.
The People, 93 111. 540, we find there to be an error in the
amount of the judgments in the present case to the extent of
one T4Q5o per cent on the amount of the judgment for the taxes
1879.] Fairfield et ah v. The People ex rel. 261
Additional opinion of the Court.
for the year 1873. The judgments of the court below will
therefore be affirmed, except as to one j^q per cent on the
amount of the judgments for the taxes for the year 1873, and
to the extent of such exception they are reversed. There will
be a similar order in respect of costs, as in the Mcintosh case.
Judgment affirmed in party and in part reversed.
CASES
SUPREME COURT OF ILLINOIS.
CENTRAL GRAND DIVISION.
JANUARY TERM, 1880.
Illinois Central Railroad Company
v.
John W. Goodwin, Collector, etc.
1. Taxation of lands owned by the Illinois Central Railroad Company — ex-
emption. Section 22 of the charter of the Illinois Central Railroad Company,
providing that the lands selected under the act of Congress approved Septem-
ber 20, 1850, which made a grant of lands to certain States named, in aid of
the construction of a railroad from Chicago to Mobile, should be "exempt
from all taxation under the laws of this State until sold and conveyed by
said corporation," has been held to be a constitutional enactment, and is a
contract between the company and the State which it is not competent for the
legislature to disregard or in anywise impair.
2. These lands may be sold by the company on a credit, and on failure of
the purchaser to pay the purchase money the company may, if the contract so
provide, declare a forfeiture thereof.
3. So, where the company had entered into a contract of sale of certain
of its lands, no conveyance being made, and the purchasers failed to pay the
purchase money according to the terms of the contract, whereupon the com-
pany declared a forfeiture of the contract of sale, it was held, the lands were
not subject to taxation. They had not been "sold and conveyed," within the
meaning of the 22d section of the charier.
I. C. E. R. Co. v. Goodwin. 263
t Opinion of the Court. ^
4. If the clause in section 61, chapter 120, Rev. Stat. 1874, which declares
that "Illinois Central Railroad lands and lots shall be taxable," after having
been sold, "from and after the time the last payment becomes due," was
intended to change the rule of taxation of these lands as prescribed in the
22d section of the company's charter, then the General Assembly has trans-
cended its powers in that regard.
Appeal from the Circuit Court of Cumberland county
Mr. B. F. Ayer, and Mr. Chas. H. Wood, for the appel-
lant.
Mr. Chief Justice Walker delivered the opinion of the
Court :
The collector of taxes gave notice and made application to
the county court for an order of sale of lands for taxes.
Appellant filed written objections, and upon the trial it was
stipulated between the State's attorney for Cumberland county,
who represented the people and the county treasurer, and the
counsel for the Illinois Central Railroad Company, as fol-
lows:
"1. That the lands above described are a portion of the
lands ceded by the State of Illinois to the Illinois Central
Railroad Company, by an act of the General Assembly of
said State, approved February 10, 1851, entitled ' An act to
incorporate the Illinois Central Railroad Company/ and
selected under the grant made by the government of the
United States to the State of Illinois, by virtue of the act of
Congress approved September 20, 1850, entitled 'An act
granting the right of way and making a grant of land to
the States of Illinois, Mississippi and Alabama, in aid of the
construction of a railroad from Chicago to Mobile.
"2. That the said lands had never been conveyed by the
said Illinois Central Railroad Company, but had been con-
tracted to be sold by said company to various purchasers upon
credit, and that by the terms of the contracts the last pay-
ments agreed to be made for the said lands had become due
before the assessment of the taxes in question in this suit;
264 I. C. R. R. Co. v. Goodwin. [Jan. T.
Opinion of the Court. I
but that the purchasers had failed to make the stipulated
payments, and in consequence of such default the said con-
tracts had been declared forfeited, and had been legally
canceled by the said Illinois Central Railroad Company before
said taxes were assessed, and said company had resumed pos-
session of said lands.
"3. That all the proceedings for the assessment of said
taxes and the collection thereof had been formal and regular,
if it shall be held that said lands are subject to taxation upon
the facts appearing in this case."
The following acts of the General Assembly of the State of
Illinois were offered in evidence, to-wit:
" An act to incorporate the Illinois Central Railroad Com-
pany," approved February 10, 1851, and the act amendatory
thereof, approved February 28, 1854, with a stipulation that
any other acts relating to said company, or its lands, should
be considered in evidence.
The cause was submitted to the court on the objections and
stipulation without other evidence. There was a finding against
the lands described in the judgment for $193.48, to the ren-
dering of which judgment the said Illinois Central Railroad
Company then and there excepted.
It is claimed that the charter of the company exempts these
lands from taxation. Section 22 provides, "the lands selected
under said act of Congress, and hereby authorized to be con-
veyed, shall be exempt from all taxation under the laws of
this State until sold and conveyed by said corporation or
trustees," etc.
It has been repeatedly held that this charter forms a con-
tract between the State and the company. Neustadt v. Illi-
nois Cent. Railroad Co. 31 IU. 484; Illinois Cent. Railroad Co.
v. Irvin, 72 id. 452. It is also held by these cases, and the
case of Illinois Cent. Railroad Co. v. McLean County, 17 111.
291, that this section is constitutional and binding. And by
a separate section of the constitution of 1870 (Rev. Stat. 1874,
p. 81,) it is provided that no contract, obligation or liability
t
1880.] I. C. K. K. Co. v. Goodwin. 265
Opinion of the Court.
of this company to pay any money into the State treasury, nor
any lien of the State upon or right to tax property of the com-
pany in accordance with the provisions of the charter of the
company, shall ever be released, suspended, modified, altered,
remitted, or in any manner diminished or impaired by legisla-
tive authority, etc. This, in the most unequivocal and emphatic
manner, confirms and prevents any alteration or change in the
charter and amendments relating to the taxation of the
property of the company. It fully confirms the provisions
of the 22d section of the charter. That section is embraced
in the revision of 1874, p. 910, section 309. This section is,
therefore, of binding force and unalterable by legislative
action, and the courts can not do otherwise than enforce it.
To do otherwise would be to violate the obligation of the
contract and to disregard this requirement of the constitution.
The exemption is not simply until the lands shall be sold,
but until they are sold and conveyed. These lands were sold,
but the purchasers failing to pay for them they were forfeited
to and belong to the company. The title, therefore, has never
been out of the company since they were ceded to it by the
State. The company, or the trustees, have never conveyed
them, and hence they are not and never were subject to tax-
ation. If the purchase money had all been paid, or it had
all been due and the contract had not been declared forfeited,
then it may be a different question would have been presented.
The company had the right to sell these lands on credit,
and on a failure by the purchaser to make the payments, the
company have the right, if the contract so provides, to declare
a forfeiture of the contract. The People v. Ketchum, 72 111.
212; Phelps v. Illinois Cent Railroad Co. 63 id. 468. These
cases so hold, and we regard the question as settled.
Thus it is seen the legislature has no power to change the
manner of taxing these lands from that fixed in the constitu-
tion and the charter of the company. If section 61, chapter
120, Rev. Stat. 1874, was intended to change the manner of
taxing these lands, the General Assembly transcended its
*
266 Hickox v. Greenwood. [Jan. T.
Syllabus.
powers. But if it was only intended to tax such lands as had
been sold, and all of the purchase money was due, and the con-
tract of sale was still in force and un forfeited, that would
present a different question, not now before the court and con-
sequently not decided.
It follows that the county court erred in rendering judg-
ment for the sale of these lands, and that judgment must be
reversed.
Judgment reversed.
Virgil Hickox
"William C. Greenwood.
1. Mechanic's lien — affects only the title of the person contracting. Where
the owner of land gives a bond or contract for a deed to the purchaser, who
procures a building to be erected thereon, the lien of the mechanic attaches
upon the purchaser's interest only, and the vendor can not be required to part
with his title until he receives full payment of his purchase money. The
vendor in such case does not occupy the position of a prior incumbrancer within
the meaning of sec. 17 of the Mechanics' Lien act.
2. Same — extent of the lien. The statute gives a lien by virtue of a con-
tract with the owner of the land, and the second section extends this lien to
any interest such owner may have at the time of the contract. If he has
only a bond for a deed, he can not by any act of his impair the title of his
vendor or give the mechanic or material-man any better title than he himself
had at the time he made the contract.
3. Same — xohen vendor makes a loan after building contract. Where a vendor
cf land who gives a bond for a deed to be made on payment of the purchase
money, after the purchaser has contracted for the erection of a building upon
ihe premises, loans the purchaser money and gives a new bond for a deed to
be made upon the payment of the original price and the sum thus loaned, the
vendor, as to the mechanic who erects the building, will in equity occupy the
position of a subsequent incumbrancer as to the sum loaned, and be post-
poned to the rights of the mechanic, but not as to the purchase money due under
the original contract of sale.
4. Same — decree. Where a mechanic's lien is established against a party
holding a lot under a bond for a deed, who has not paid the purchase money,
1880.] Hickox v. Greenwood. 267
Opinion of the Court.
a sale of the property should be ordered, subject to the rights of the vendor,
and out of the proceeds the mechanic should first be paid, and then the
amount due any subsequent incumbrancer, and the balance, if any, to the.
party against whom the lien exists.
Appeal from the Circuit Court of Sangamon county; the
Hon. Charles S. Zane, Judge, presiding.
Mr. K W. Edwards, and Mr. R. L. McGuire, for the
appellant.
Messrs. Scholes & Mather, for the appellee.
Mr. Justice Dickey delivered the opinion of the Court :
The lien of the mechanic by our statute extends " to an
estate in fee for life, for years, or any other estate, or any
right of redemption or oilier interest which such owner may
have in the lot or land at the time of making the contract."
When the contract of Greenwood, the mechanic in this case,
was made — on July 20th, 1876 — the owner, David Peat, had
an interest in this lot. That interest rested upon a contract
which he had before that time made with Virgil Hickox (the
owner of the fee in the land) for the purchase of the lot at
the price of $200, on a credit of 10 years, with interest on the
price at the rate of ten per cent per annum, payable semi-
annually. Peat had paid Hickox the first installment of
interest, and had taken possession under his contract, and had
built a fence about the ground with the knowledge and con-
sent of Hickox. Soon after the making of the contract to
build the house Greenwood began his work, and had it partly
completed when Hickox and Peat made an arrangement for
the advancing by Hickox to Peat of the sum of $230, on a
credit often years and at like rate of interest, and thereupon,
on the 7th of August, Hickox executed to Peat a bond by
which he agreed to convey the lot in question to Peat on the
payment to him of $430 (the sum of the price of the lot and
the amount of money to be loaned,) on or before August 7,
268 Hickox v. Greenwood. [Jan. T.
Opinion of the Court.
1886, with interest at ten per cent, payable semi-annually.
The building was completed about September 7, 1876, and
about that time Hickox lent to Peat the $230 above men-
tioned, and took his note dated August 7, 1876, for the sum
of $430, payable as stated in the bond.
At the time of the decree the court found that the price of
the lot, with unpaid interest accrued, was $215; that the
money borrowed by Peat from Hickox, with unpaid interest
accrued, was $250.08, and that the amount due from Peat to
Greenwood, the mechanic, with accrued interest, was $495.85,
and directed Peat to pay each of these demands, and on his
failure to do so ordered the house and lot to be sold to pro-
vide for their payment; and that Hickox should have a first
lien for the whole amount due him ($465.08) upon fff of
the proceeds of the sale, and that Greenwood have a first
lien upon |ff of the proceeds; that the costs of the suit be
first paid out of the fund, and then the amounts respectively
due to Hickox and Greenwood pro rata. From this decree
Hickox appeals to this court.
Of this decree Hickox complains, insisting that he is enti-
tled to have his purchase money from the property before any
part of the proceeds shall be applied to the payment of the
mechanic.
Counsel for Greenwood rely upon section 17 of chapter
82, Rev. Stat. 1874, wherein it is provided, no incumbrance
upon the land created before or after the making of the
building contract shall operate upon the building until the
lien in favor of the mechanic shall have been satisfied, and
that in such case the previous incumbrance shall be preferred
to the extent of the value of the land at the time of making
the building contract.
Insisting that the interest of Hickox in the property is in
the nature of a prior incumbrance, it is inferred that this
statute limits his preference to a portion of the proceeds pro-
portionate to the value of the land. The interest of Hickox
in the land is not a mere incumbrance. He is the owner of
1880.] Hickox v. Greenwood. 269
Opinion of the Court. >
the fee, and must have his purchase money and interest paid
in full before he can lawfully or equitably be required to sur-
render the title.
The statute gives a lieri by virtue of a contract "with the
owner" of the land (chap. 82, sec. 1, Eev. Stat. 1874). The
second section extends the lien to any other interest which
such owner may have in the land at the time of the contract.
The contract in this case was not made with Hickox, the
owner of the fee, but with Peat, who was the owner of a con-
tingent interest in the lot, depending upon his compliance
with his contract of purchase with Hickox. The lien, then,
was not upon the fee which Hickox held, but upon the inte-
rest of Peat, whatever that was, under his contract with
Hickox.
Peat could not, by any act of his, impair the title of
Hickox, or give to Greenwood any better title or greater
interest in the land than he himself held.
When it is said, in section 17 of the same act, that "No
incumbrance on the land created before or after the making
of the contract under the provisions of this act, shall operate
upon the building," etc., and that "upon questions arising
between previous incumbrances and creditors, the previous
incumbrance shall be preferred to the extent of the value
of the land at the time of making the contract, and the
court shall ascertain * * * what proportion of the pro-
ceeds of any sale shall be paid to the several parties," it must
be understood that the legislature is speaking of incum-
brances upon the matter which is made subject to the me-
chanic's lien.
When we read the second section in connection with the
seventeenth, this is apparent. Peat is to be considered as
owner only, in the sense of this statute, to the extent of the
interest he owns, and that interest is what the mechanic's lien
affects ; and as to these proceedings that interest is to be con-
sidered as " the land" on which the first and second sections
give the mechanic a lien. If Peat had incumbered that
270 Hickox v. Greenwood. [Jan. T.
Opinion of the Court.
interest before the building contract, then section seventeen
would have application; but it has no application to the owner
of the fee, who did not make the building contract.
Hickox in this case holds the fee, and it can not be taken
from him lawfully until his purchase money and interest
thereon be fully paid to him. This, too, can only be done in
accordance with his contract. He is not bound to part with
that title, under the terms of his sale, until he be paid the whole
of the principal and interest to accrue up to 1886; and unless
he has in some way waived his right to receive the $200 of
purchase money and the amount of interest thereon at ten
per cent per annum (as stated in his contract) until 1886, he
can not be required to convey without its full payment. No
doubt, the interest of Peat in this land may be subjected to
sale in this proceeding, but nothing else.
As to the $230, which was lent to Peat by Hickox after the
making of the building contract, Hickox occupies in equity
the position of the holder of an incumbrance subsequent to
the building contract and subordinate to the mechanic's lien.
This is an incumbrance not upon the fee, but upon Peat's
interest in the lot.
The decree should declare the relative rights of the sev-
eral parties as here indicated, and, in default of payment by
Peat, a sale of Peat's interest in the land should be ordered —
that is, the land should be sold subject to Hickox's rights as
vendor. From the proceeds the mechanic should be first paid
the amount of his lien, and from the balance, if sufficient,
the just demand of Hickox for the money lent and accrued
interest should be paid, and the remainder, if any, after pay-
ing these demands and costs, should be paid to Peat.
The decree must be reversed, and the cause remanded for
further proceedings.
Decree reversed.
1880.] National Bank v. Bank of Commerce. 271
Syllabus.
The Union National Bank of Chicago
v.
The Bank of Commerce of St. Louis.
1. Partnership debts, and debts of individual partners — out of what fund,
respectively, to be paid. In the distribution of the assets of insolvent partners,
the rule in equity is, that partnership creditors have a primary claim upon
the partnership assets, to the exclusion of the creditors of the individual
partners, until all the partnership debts shall be satisfied; — and the same rule
will exclude partnership creditors from participation in assets of the indi-
vidual partners until all their individual debts are paid.
2. Same — what constitutes individual indebtedness, as distinguished from part-
nership indebtedness.* Where three members of a partnership firm gave their
joint and several promissory note, payable to the firm, and the firm subse-
quently indoi-sed the note to a third person, such third person will hold the
note as an individual claim against the makers, as distinguished from a part-
nership claim, — having the right to hold the firm liable also, not as makers,
but as indorsers; — and this individual character of the claim against the
makers will not be in the least modified or changed by the fact that the note
has been reduced to judgment against them.
3. Assignment for the benefit of creditors — of its construction as to what
creditors are included. A debtor in failing circumstances made a deed of assign-
ment of all his property for the benefit of his creditors. The deed directed
the assignee "to pay over and discharge in full, with lawful interest, if the
net proceeds should be sufficient for that purpose, all and singular the debts
due from the said party of the first part, to the persons severally named in
the schedule of*creditors to be thereunto annexed, it being intended to include
in said schedule the names of all the creditors of the party of the first part,
with the amount due to each of said creditors. And if the said net proceeds
should not be sufficient for the payment of the said debts in full as aforesaid,
then to apply the same, so far as they would extend, to the payment of the
said debts, ratably, and in proportion to the amounts thereof, without distinc-
tion or preference." It was held, that under a proper construction of this
deed, all the individual creditors of the assignor were embraced in it, even
though the names of some of them did not appear in the schedule subsequently
filed.
4. Same — right of assignor to change the terms of the deed. Where a debtor
has executed and delivered to the assignee a deed of assignment of his prop-
erty for the benefit of creditors, the assignor has no power afterwards to
change the terms and conditions of the assignment without the consent of the
assignee and the creditors.
272 National Bank v. Bank of Commerce. [Jan. T.
Brief for the Appellant.
Appeal from the Appellate Court of the Third District;
the Hon. Chauncey L. Higbee, presiding Justice, and Hon.
Oliver L. Davis and Hon. Lyman Lacey, Justices.
Messrs. McCoy & Pratt, for the appellant:
The members of a partnership, in making assignments of
their individual property for their individual debts, have the
legal right to exclude a creditor of the firm from participation
in the assets until the creditors of the separate partners are
paid, and in so doing no fraudulent preference is created.
Citing Kirby v. Schoonmaker, 3 Barb. 46; Van Bossum v.
Walker, 11 id. 237; Hurlbert v. Dean, 2 Abbott's Dec. 433;
Newman v. Bagley, 16 Pick. 572.
Magoun, on June 15, 1877, in connection with his partners,
had, by a deed of assignment, made provision for all his part-
nership debts, and attached thereto, subsequently, a schedule
of all his partnership assets, directing therein that this debt
— the debt of appellee — should be paid out of the same.
While thus caring for this joint debt, he was at the same
time providing for his individual debts by his individual
assignment, in which the debt of appellee was not named, but
in which it was stated, "it being intended to include in said
schedule the names of all the creditors of the party of the first
part." It does not say individual creditors, and the partner-
ship creditors were also his creditors.
Rejecting the schedules, the result manifestly would be to
let in all the creditors of each — the firm creditors as well as
the individual creditors. By the subsequent instrument of
June 30, after reciting the date of the original assignment,
the name of the assignee, etc., he gives a list of his creditors,
and for the purpose of preventing any misunderstanding as to
what creditors should share in his estate, he uses this lan-
guage :
"Also, a schedule of all the individual liabilities of the said
John Magoun, which individual liabilities are to be paid out
of the proceeds of said assets, the residue to be applied to the
1880.] National Bank v. Bank of Commerce. 273
Brief for the Appellee.
payment of the liabilities of the said Magoun, as a partner of
the firm of MoClun, Holder & Co."
As to the right of the debtor to modify and amend his
assignment at any time before it is attacked, it has been clearly
settled by this court. Conlding et al. v. Carson et al. 11 111.
503; Pierce et al. v. Brewster et al. 32 id. 268.
It is contended that this alteration, or addendum, could not
become operative, unless signed and sealed by the assignee,
with the consent of all the creditors. Why is this necessary?
The record affords the same evidence that the assignee
assented to and accepted the second assignment, as it does that
he accepted the first.
If the amendment and schedules are ruled out, then we
insist that all creditors, both individual and joint, should
receive an equal distribution of the assets of the estate.
Mr. A. E. De Mange, for the appellee :
Appellee is the joint and several creditor of John E.
McClun, John Magoun and Charles W. Munsell, and the
judgment in appellee's favor was rendered upon 'the note
which is in terms joint and several, and that joint and several
liability must equitably inhere in the judgment.
The intention of parties to a deed will govern, and in con-
struing a deed of assignment, the same rules apply as in
ordinary conveyances. Piatt v. Lott, 17 N. Y. 479; Town-
send v. Stearns, 32 id. 213; Bridge v. Willington, 1 Mass. 226;
Means v. Presbyterian Church, 3 Watts & Ser. 312; Jackson
v. Dunsbaugh, 1 Johns. Ch. 95; Turner v. Jaycox, 40 Barb.
172; Ely, Clapp & Co. v. Hair, Nugent & Co. 16 B. Mon. 239.
In Adams et al. v. Sturgis et al. 55 111. 472, the court say :
"It is a just and uniform rule, that the partnership property
shall be applied to the partnership debts, to the exclusion of
the creditors of the individual members of the firm, and that
the creditors of the latter should be first paid from the sepa-
rate effects of the debtor before the partnership creditors can
claim anything."
18—94 III.
274 National Bank v. Bank of Commerce. [Jan. T.
Opinion of the Court.
.Rogers v. Meranda et al. 7 Ohio State, 130, an exhaustive
decision upon a general assignment for the benefit of cred-
itors. Rainey et al. v. Nance et al. 54 111. 34; Morrison v.
Kurtz et al. 15 id. 196; Ladd v. Griswold et al. 4 Gilm. 36;
Moline Water Power and Manufacturing Co. v. Webster, 26
111. 239; Murrill v. Neal, 8 How. (U. S.) marg. 421; Forbes
et al. v. Scannell (construing an assignment), 13 Cal. 287; 3
Kent's Com. 65.
Lord Coke said, in Coke's Littleton, 42: "Whensoever
the words of a deed, or of the parties without deed, may have
a double intendment, and one standeth with law and right,
and the other is wrongful and against law, the intendment
that standeth with law shall be taken."
Burrill on Assignments, 3d ed. p. 280, says: " In the ab-
sence of an express provision directing an unlawful appro-
priation of the funds, the law will interpret the instrument
(deed of assignment) according to the rights of the parties
and the respective equities of the creditors." Farquharson v.
Eichelberger, 15 Md. 64; Hickman v. Messinger, 49 Pa. State,
465; Black's Appeal, 44 Pa. St. 503; Eyre v. Beebe, 28 How.
Pr. 340; Forbes v. Scannell, 13 Cal. 287.
Mr. Justice Craig delivered the opinion of the Court:
John E. McClun, Charles W. Holder, John Magoun, Charles
W. C. Munsell and John W. Whipp composed the firm of
McClun, Holder & Co., engaged in banking in Bloomington.
On the 16th day of June, 1877, the firm executed and de-
livered a deed of assignment to Lawrence Weldon, as assignee,
in which all the property, real and personal, belonging to the
firm was conveyed on the trusts expressed in the deed. On
the same day John E. McClun, John Magoun and Charles
W. C. Munsell, being unable to pay their individual debts,
each executed a deed of assignment for the benefit of his
creditors, by which the individual property of each was con-
veyed to Lawrence Weldon, in trust, as set forth in each of
the three deeds. On the 18th day of August, 1877, the
1880.] National Bank v. Bank of Commerce. 275
Opinion of the Court.
assignee, Lawrence Weldon, filed his bill in equity in the
McLean circuit court, which, after disclosing the foregoing
facts, alleges that, among the assets assigned, were large
amounts of real estate, which said assignee asked power of
the court to sell upon credit; also power to compromise debts.
It also sets up, among other things, that a conflict of interest
exists between the individual creditors and the members of
the said firm and the creditors of the firm of McClun, Holder
& Co. That various opinions were entertained by different
creditors of said Magoun as to the best manner of selling and
disposing of the real estate belonging to him.
The bill prayed that complainant might be advised in the
premises, and instructed in the several particulars in the bill
mentioned in what manner he should sell the real estate assigned
to him, whether for cash or on credit; if on credit, upon what
security ; what extensions he might give of payment of
claims assigned to him. It made all the creditors parties,
among the rest the Union National Bank of Chicago, and
the Bank of Commerce of St. Louis.
The Bank of Commerce, on the 18th day of May, 1878,
filed its intervening petition in said cause, in which it sets up
that the Bank of Commerce is a corporation, organized and
doing business under the laws of the State of Missouri, in St.
Louis, and is one of the defendants to the original bill; that
on April 6, 1877, defendants, John E. McClun, John Magoun
and Charles W. C. Munsell, gave their note to McClun, Holder
& Co., a partnership doing business in Bloomington, under
the name of the Home Bank, which note is as follows:
" $20,000.00. Beoomington, April 6, 1877.
" Ninety days after date, for value received, we jointly and
severally promise to pay to McClun, Holder & Co., or order,
at the Bank of Commerce in the city of St. Louis, $20,000;
if not paid at maturity, to forfeit and pay 20 per cent interest
276 National Bank v. Bank of Commerce. [Jan. T.
Opinion of the Court.
per annum till paid, as liquidated, agreed and assessed dam-
ages thereon for said detention and non-payment.
"J. E. McGlun,
" John Magoun,
" C. W. C. MUNSELL."
That before the maturity of the note, the banking firm
indorsed the note under their firm name, for a good considera-
tion, as follows: " Pay Bank of Commerce or order, — McClun,
Holder & Co."
That at the November term, 1877, of said circuit court,
orator brought suit on said note against said John E. McClun,
John Magoun and Charles W. C. Munsell, and recovered a
judgment thereon, on the common law side of said court,
for the sum of $21,400, against the said John E. McClun
and John Magoun. Said Munsell was not included in
said judgment because he was not served by the sheriff with
the summons in said cause, and has not since been made a
party to said judgment, because he has been adjudicated a
bankrupt; but petitioner shows that he is still liable to orator
as one of the makers of said note, and the assets of his estate
in the hands of Lawrence Weldon, assignee, are still liable
for the payment to orator of said note, or the judgment ob-
tained thereon, and, as orator purchased said note upon the
faith and credit of said McClun, Magoun & Munsell, it is
entitled to recover the amount of said judgment, together
with the lawful interest, out of the individual estates of said
McClun, Magoun & Munsell, equally with the other, indi-
vidual creditors of the makers of said note, before any of the
creditors of McClun, Holder & Co. are entitled to receive
anything from the individual estates of either of the makers
of said note; and if the individual assets of McClun, Magoun
& Munsell are not sufficient to pay said judgment, then orator
insists that it is entitled to recover the unpaid balance of said
judgment out of the assets of said assignor and indorsers of
said note, paid McClun, Holder & Co., pi'o rata with the
1880.] National Bank v. Bank of Commerce. 277
Opinion of the Court. ►
other partnership creditors of said firm of McClun., Holder
&Co.
That said Weldon has paid to orator on said judgment, since
the recovery thereof, the sum of $3000, which amount has
been duly credited on said judgment by orator, but the bal-
ance thereof remains unpaid upon the records of this court.
That the individual creditors of said McClun, Magouu &
Munsell, as well as the creditors of the firm of McClun,
Holder & Co., are named in said original bill filed by said
Weldon, as assignee, and in the schedules thereto attached and
made part of said bill — all of which said individual and part-
nership creditors are made parties respondent to said original
bill, and are or will be duly summoned to answer the same —
all of whom your petitioner makes respondents hereto, and
prays that they may be required to answer the allegations
contained herein, but not under oath.
The petitioner also prays for an order upon Weldon to pay
petitioner out of the assets of Magoun, McClun & Munsell
his claim pro rata with the other individual creditors.
The Union National Bank of Chicago answered the petition,
in which it in substance sets up that the note does not repre-
sent an individual indebtedness of McClun, Magoun & Mun-
sell, or either of them, but only the indebtedness of McClun,
Holder & Co., which was well known to petitioner.
The court, on the hearing, found that the Bank of Com-
merce was an individual creditor of John E. McClun, John
Magoun and Charles W. C. Munsell, and decreed that the
assignee treat the claim as the individual debt of said parties.
This decree, upon appeal, was affirmed in the Appellate Court,
and the Union National Bank has taken an appeal from the
decision of that court.
In the distribution of the assets of insolvent partners, it
seems to be well settled by the authorities that partnership
creditors have a primary claim upon the partnership assets,
and all partnership liabilities must be paid before individual
creditors can obtain any share in or division of partnership
278 National Bank v. Bank of Commekce. [Jan. T.
Opinion of the Court.
funds. And this rule, which confers upon the partnership
creditors a priority over the partnership assets in equity,
requires that partnership creditors should only share in the
surplus of the individual estate of the partners after the pay-
ment of all individual debts. In other words, partnership
creditors can in equity only look to the surplus of the separate
property of a partner after the payment of his individual
debts; and on the other hand, the individual creditors of a
partner can, in like manner, only claim distribution from the
debtor's interest in the surplus of the joint fund after the
satisfaction of the partnership creditors. Rogers v. Meranda,
7 Ohio State, 180.
In Kent's Com. vol. 3, p. 65, the author says: "It was a
principle of the Roman law, and it has been acknoAvledged in
the equity jurisprudence of Spain, England and the United
States, that partnership debts must be paid out of the part-
nership estate, and private and separate debts out of the
private and separate estate of the individual partner. If the
partnership creditors can not obtain payment out of the part-
nership estate, they can not, in equity, resort to the private
and separate estate until private and separate creditors are
satisfied. Nor have the creditors of the individual partners
any claim upon the partnership property until all the part-
nership creditors are satisfied."
The rule announced by Kent has been sanctioned by our
own court in a number of cases. Ladd v. Griswold, 4 Gilm.
25 ; Morrison v. Kurtz, 15 111. 196 ; Rainey v. Nance, 54 id. 29.
The first question, then, to be determined is, in which class
does the claim of the Bank of Commerce fall? Is it a part-
nership claim or an individual claim? If an individual claim,
is it embraced in the list of creditors who are to share in the
assets of the three parties, McClun, Magoun and Munsell, who
severally assigned their property? A bare inspection of the
note will suffice to show that the claim of appellee is an individ-
ual claim against J. E. McClun, John Magoun and C. W. C.
Munsell. They, in and by the note, as individuals, jointly
1880.] National Bank v. Bank of Commerce. 279
Opinion of the Court. "*
and severally promise to pay the amount named in the note.
It is true the bank may hold the firm liable as indorsers,
but that fact will not change the character of the liability of
the three persons who executed the note as payors. Nor does
the fact that a judgment was obtained on the note, shift the
character of the liability of the makers. So far as the char-
acter of the liability is concerned it remains the same after
judgment as before.
We now come to the question whether the claim of the bank
was embraced and included in the deeds of assignment. Each
of the deeds of assignment of McClun, Magoun and Munsell
contained the following:
f< To pay over and discharge in full, with lawful interest,
if the net proceeds shall be sufficient for that purpose, all and
singular the debts due from the said party of the first part to
the parties severally named in the schedule of creditors, to
be hereunto annexed, it being intended to include in said
schedule the names of all the creditors of the party of the first
part, with the amount due to each of said creditors. And if
the said net proceeds shall not be sufficient for the payment of
said debts in full, as aforesaid, then to apply the same, so far
as they will extend, to the payment of said debts, ratably, and
in proportion to the amounts thereof, without distinction or
preference"
When the schedule of debts came in appellee was not
mentioned therein as one of the creditors, and the question
arises whether, from a fair construction of the deed, it was
intended to exclude this claim from a participation in the
assets. • If the intention of the assignor can be gathered from
the instrument, that intention must prevail. If the intent
had been to exclude some creditor from the list to be incor-
porated in the schedule, why was this language used: "It
being intended to include in said schedule the names of all
the creditors of the party of the first part, with the amount
due to each of said creditors."
280 National Bank v. Bank of Commerce. [Jan. T.
Opinion of the Court.
Then, again, the clause which in express language declares
that the assets, if not sufficient to pay the debts in full, shall
be distributed ratably among the creditors without distinc-
tion or preference, would seem to show, beyond any doubt
whatever, that it was intended that the proceeds of the prop-
erty should be divided among all the creditors. Those pro-
visions in the assignment so clearly manifest an intention to
include all the creditors, that we are satisfied the name of ap-
pellee was omitted from the schedule by misapprehension or
mistake; but however that may be, we are satisfied a fair and
reasonable construction of the deed of assignment shows a
clear intention on the part of the assignors to protect all indi-
vidual creditors and allow them to share in the proceeds of the
property, although not named in the schedule.
In Piatt v. Scott, 17 K Y. 478, it was held that an assign-
ment in trust, for the benefit of creditors, of all a debtor's
property, which was therein stated to be " more fully and par-
ticularly enumerated and described in a schedule annexed,"
passes property not mentioned in the schedule. In deciding
the question, the court said: " Hence, notwithstanding the
ordinary rule, that general words are controlled in their oper-
ation by those which are more particular and specific, if, upon
looking upon the assignment in this case, we are able clearly
to see that it was the intention of the assignors to convey to
the assignee their whole property, we are bound to give effect
to that intent. Were this question to depend solely upon the
main clause in the instrument, I should have very little doubt
as to the design with which it must have been executed. Not
only the general terms in which that clause is couched, em-
bracing, as they do, all the property of the assignors, both
real and personal, but the emphatic language with which, as
we have seen, it concludes, viz: 'Of every description, be-
longing to the said parties of the first part, or in which they
have any right or interest whatever/ would seem to manifest
a plain intent to convey everything which the assignors pos-
sessed. It is true, this clause is followed by the words, 'the
1880.] National Bank v. Bank of Commerce. 281
Opinion of the Court. ,
same being more fully and particularly enumerated and
described in a schedule/ etc. This, however, by no means
indicates an intention to qualify or limit the broad and com-
prehensive language previously used. A schedule would of
course be necessary, as a matter of convenience and as a
guide to the assignee, and the provision for its annexation
does not warrant the inference that it was intended that if any
portion of the property of the assignors should be omitted,
which might well occur through accident or inadvertence, the
title to such property should not pass to the assignee."
"What is said in the case cited is in point here. While, by
the terms of the assignment, the property is transferred to an
assignee to pay the debts due from the assignor to the parties
severally named in the schedule of creditors to be thereafter
annexed, yet the emphatic language, " it being intended to
include in said schedule the names of all the creditors of the
party of the first part, with the amount due to each of said
creditors," so clearly manifests the intention of the parties
that all the creditors of the assignor should share in the
assets, that we can not hold that creditors not embraced in the
schedule are cut off, without a clear disregard of the intention
as disclosed from an examination of the whole deed of assign-
ment.
The schedule of John Magoun, which was executed and
delivered fifteen days after the deed of assignment, after de-
scribing the property, real and personal, conveyed, contained
the following language: "Also a schedule of all the indi-
vidual liabilities of the said John Magoun, which individual
liabilities are to be paid out of the proceeds of said assets, the
residue to be applied to the payment of the liabilities of the
said Magoun as a partner of the firm of McClun, Holder &
Co." This, it is contended, changes the terms of the original
assignment. We have been referred to no authority which
would sanction the right of an assignor, without the consent
and concurrence of the assignee and the creditors, to change
the terms and conditions of an assignment after it has been
282 National Bank v. Bank of Commeece. [Jan. T.
Opinion of the Court.
properly executed and delivered. Upon the execution and
delivery of the deed of assignment to Weldon, the title to
the property passed to him, in trust, for the purposes declared
in tire deed. So far as shown by the record, neither the
assignee nor the creditors gave their assent to any change in
the terms or conditions of the original assignment, and with-
out such consent the assignor was powerless to make any
change whatever.
Gonhling v. Carson, 11 111. 503, cited by appellant's counsel,
does not sustain the position assumed. There, an assignment
contained a provision which rendered it voidable by creditors,
before, however, the rights of third parties intervened. The
assignor, assignee and all the creditors who had assented to
the assignment, executed an agreement which relieved the
assignment of its objectionable feature, and it was held that
they might lawfully make such an agreement. Nor has
Pierce v. Brewster, 32 111. 268, cited by appellant, any appli-
cation here. In that case the assignment contained a provi-
sion by which the assignee might sell the property on credit.
Before, however, the rights of third parties had intervened,
the assignor and assignee executed an agreement that the
property should not be sold on credit, and the court held that
this agreement removed the obnoxious clause in the assign-
ment. Neither of the cases cited has any bearing on the
question here involved.
After a careful examination of the whole record we are sat-
isfied it contains no error, and the judgment of the Appellate
Court will be affirmed.
Judgment affirmed.
1880.] Binkert v. Jansen et aL 283
Syllabus. t
Anton Binkert
v.
Frederick G. Jansen et aL
1. Taxation by the city of Quincy — as to the rate thereof — and by what law
governed. The act of 1863 "amendatory of the several acts relating to the
city of Quincy, to provide for raising a revenue therein, and regulating the
costs arising under the charter and ordinances of said city," fixes the limit
of taxation in that city upon real and personal property, at $1.03 upon each
one hundred dollars of the assessed value of such property, for all purposes,
and this includes taxes for interest, and sinking fund, other than the interest
ou registered bonds, which is provided for in another way.
2. The repealing clause in the 5th section of the act of 1863, after
declaring in express terms the repeal of all laws and parts of laws, other
than the provisions thereof touching the levying and collection of taxes on
property within the city, except those regulating such collection, and all laws
in conflict therewith, contains the following: "but this act shall not affect
taxes of said city relating to streets and alleys, or to licenses of whatever
nature, nor any source of revenue other than taxes on real or personal prop-
erty." Under the charter of 1857, the city had power, for the purpose of keep-
ing its streets and alleys, etc., in repair, to levy a capitation tax. The only
taxes relating to "streets and alleys" not affected by the repealing clause of
the act of 1863, is this capitation tax. A general tax on real and personal
property for "streets and alleys" is not within the saving clause of the 5th
section of the act.
3. The city of Quincy is not incorporated under any general law, but under
special charter granted before the adoption of the present constitution. The
act of 1877, " in regard to assessment and collection of municipal taxes,"
does not confer upon cities, villages, etc., incorporated under special charters,
the same power to levy taxes to raise the amounts appropriated by ordinance
that cities and villages incorporated under the general law of 1872 possess,
nor does the repealing clause of the act of 1877 remove the limitations
imposed by the charters or the special laws affecting municipal taxes. That
act has reference only to the mode or manner of assessing such taxes, the
purpose being to require uniformity in that regard, and has no relation
whatever to the rate of taxation.
4. Public laws — what to be so considered — judicial notice. It is doubtless a
correct principle, that all acts of the legislature conferring or restricting the
revenue powers of a municipal corporation are in their nature public laws,
whether so declared in terms or not, and of which all courts will be bound to
take judicial notice in all proceedings affecting revenue matters.
284 Binkert v. Jansen et al. [Jan. T.
Brief for the Appellant.
Appeal from the Appellate Court of the Third District.
This was a bill in equity, by Frederick G. Jansen and
others, against Anton Binkert, in the circuit court of Adams
county, and heard before the Hon. John H. Williams,
judge, presiding.
The object of the bill was to enjoin the collector, Anton
Binkert, from the collection of certain unpaid city taxes of
the city of Quincy for the year 1878. The court overruled a
demurrer to the bill, and the complainants abiding by their
demurrer, a decree was rendered in accordance with the prayer
of the bill. On appeal, the Appellate Court affirmed the decree
of the circuit court, whereupon an appeal was taken to this
court.
Messrs. Wheat & Marcy, for the appellant:
All legislative acts affecting the revenue powers of a muni-
cipal corporation are public, whether so declared or not, and
within the judicial cognizance of the court. Browning v.
Springfield, 17 111. 146; 1 Dill, on Mun. Corp. sec. 50.
The act of 1877 conferred the same power, as to amount of
taxation, upon cities incorporated under special charters, which
was vested in cities incorporated under the city and village
act. Laws 1877, 61; Eev. Stat. 1874, 227, 231.
No word in a statute is to be regarded as unmeaning or
useless. Decker et al. v. Hughes et al. 68 111. 41.
Words in a statute should be construed according to their
usual, natural and popular import. Way v. Way, 64 111. 410;
Stuart v. Hamilton, 66 id. 255.
The word "assess," in the law of 1877, includes the fixing
of the amount of taxation. 1 Burrill's Law Diet. 140, 141;
Const. 1848, art. 9, sec. 5; Const. 1870, art. 9, sees. 8, 9;
Eev. Stat. 1874, 254, 259; art. 8, sees. 1, 2,4, Eev. Stat.
1874, 231.
If the act of 1877 is construed to apply only to the manner
of certifying and collecting municipal taxes, it accomplishes
1880.] Binkert v. Jansen et al. 285
Brief for the Appellant.
nothing, and leaves the law substantially as it was before. 2
Gross' Stat. 354, sec. 122; City and Village Act, art. 8; The
People v. Cooper, 83 111. 592-5.
Prior to 1877, the legislature had repeatedly endeavored to
create a uniform power of taxation in cities, and these efforts
had failed in consequence of adverse decisions. City Tax Act,
Rev. Stat. 1874, 254; The People ex rel. Miller v. Otis, 74 111.
384; Sess. Laws 1875, 33; The People v. Cooper, 83 111. 585,
595-6; Edwards v. The People, 88 id. 345-6.
Increase or restriction of revenue power of a city organ-
ized under special charter can, since 1870, only be effected by
a general law. Spring v. Olney, 78 111. 101.
If the law of 1877 be construed as above contended, all
cities wil], for the future, be placed on a uniform basis of tax-
ation not exceeding 2 per cent. BradwelPs Laws of 1879, 62.
The act of 1863 expresses an intention, first, that street and
alley taxes shall not be levied under or included in section 4
of that law; and second, that street and alley taxes should
continue to be levied. Priv. Laws 1863, p. 171, sec. 5.
By section 4 of the law of 1863, the payment of interest
was thrown upon the general fund; hence the necessity of
relieving that fund from the item of streets and alleys. Com-
pare charter of 1857, ch. 3, sees. 2-5, with Private Laws of
1863, p. 171, sees. 4, 5.
Where power to construct public works is conferred on a
city, and no express power of taxation is granted, reasonable
power is implied. United States v. New Orleans, 98 U. S. 381.
The intention of section 5 of the law of 1863 was either
that section 2, chapter 3, of the charter should remain in
force as to street and alley taxes, or that such taxes should be
levied at a reasonable rate, and, in either case, as a tax addi-
tional to the 50 per cent tax authorized by sec. 4 of the law of
1863.
The tax for interest and sinking fund may be legal, not-
withstanding the facts averred in the bill, and must, therefore,
286 Binkert v. Jansen et al. [Jan. T.
Brief for the Appellees.
»
on demurrer, be pronounced legal. Taylor v. Thompson, 42
111. 10; Munson v. Miller, 66 id. 380, 382, 3, 4.
As to powers of Quincy to contract debt, levy interest tax
and provide sinking fund, see Sess. Laws 1851, 144; Priv.
Laws 1853, 471; Priv. Laws 1857, 229, 1052, 163, 160, 17-5,
181; Pub. Laws 1849-51, 33.
The power to levy interest taxes and maintain the sinking
fund could not be withdrawn as to debts originating prior to
1863. Van Hoffman v. Quincy, 4 Wall. 535.
Mere novation, by funding into new bonds, after 1863,
would not affect the question. The interest tax and sinking
fund must be maintained until prior debts are satisfied. No-
vation is not satisfaction. Van Hoffman v. Quincy, 4 Wall.
554-5 ; Flower v. Elwood, 66 111. 446.
The Registration law of 1865 does not impair either the
authority or duty of the city as to payment of its debts.
Rev. Stat. 1874, 790, sees. 5 and 8.
A court of equity does not enjoin a tax for mere irregulari-
ties. High on Inj. sec. 355, and note 3.
The city had power to make additional appropriations
during the first quarter of the fiscal year, which commenced
on the third Monday in April. Rev. Stat. 1874, 227; Charter
1857, ch. 2, sec. 19.
If the amendatory ordinance was void, then only the addi-
tional $4000 specified in that ordinance should on that ground
be enjoined. The amounts in the two ordinances are readily
separable. Taylor v. Thompson, 42 111. 17.
Messrs. Marsh & McFaddon, for the appellees:
The city of Quincy not having come under any general in-
corporation law of this State, no legislation under he new
constitution prior to 1877 had changed its power to tax. as
conferred by its special charter. The People v. Cooper, 83 111.
595; Edwards et al. v. The People, 88 id. 340.
The law of 1877, considered by itself, is plain and unam-
biguous. It defines its own object to be to provide a method
1880.] Binkeet v. Jansen et al. 287
Brief for the Appellees.
of assessing and collecting taxes, and has nothing to do with
the rate of taxation. Hurd's Rev. Stat. 1877, p. 245.
The same law of 1877, considered in connection with those
portions of article 8 of the general Incorporation law, im-
ported into and made a part of itself by reason of said refer-
ence, can effect no change in the rate of taxation fixed by the
special charter of the city of Quincy:
1. Because said article 8 does not purport to confer power
to tax at all, but presupposes a power to tax existing, and else-
where determined. In the case of the city of Quincy that
power is determined in her charter. In the general Incor-
poration law, it is conferred by article 7 of that law, which
article is not made a part of the law of 1877. Hurd's Rev.
Stat. 1877, p. 222.
2. Because the Supreme Court has designated the systems
in the general Incorporation law and in the general Revenue
law relating to the assessment and collection of taxes, as one
and the same. Andrews v. TJie People, 75 111. 612 ; The Peo-
ple v. Cooper, 83 id. 592; and the Supreme Court having, in
Edwards v. The. People, 88 111. 345, decided that the revenue
law had no effect on the rate of taxation as fixed by a special
charter, the same result must follow from said last named case,
so far as article 8 of the Incorporation law enters into the
law of 1877.
3. Because the provisions of a charter fixing a rate of
taxation and article 8 of the general Incorporation law and
section 122 of the Revenue law relate to different subject
matters. Rev. Stat. 1874, pp. 23, 1, 878; Edwards v. The
People, 88 111. 345.
The course of legislation and judicial decision prepared the
way for and made it most natural to expect the passage of a
law providing, not a rate of taxation, but a manner in which
cities could with certainty collect their legal taxes. Laws
1873, p. 51 ; TJie People v. Otis, 74 111. 385; Andrews v. The
People, 75 111. 612.
288 Binkert v. Jaksen et al. [Jan. T.
Brief for the Appellees.
The course of legislation since the new constitution went
into effect has been in the direction of modifying special
charters only with the consent of the people. The People v.
Cooper, 83 111. 590; Eev. Stat. 1874, p. 211 sec. 1, p. 240
sec. 168, p. 245 sec. 196; Session Laws 1875, p. 43.
The court should construe the act of 1877 and the special
charters as to rate of taxation so as to make both stand.
United States v. Tyner, 11 Wall. U. S. 92; City of Chicago v.
Quimby, 38 111. 274.
That no inconsistency exists between the law of 1877 and
the charter rate of a city, and that both may stand, appears in
Edwards v. The People, 88 111. 340.
The power to tax can not be deduced from considerations
of inconvenience. Hill v. City of Chicago, 60 111. 91 ; Hyatt
v. Taylor, 42 N. Y. 260; Dillon on Corp. sec. 605; ShacM-
ton v. Town of Guttenherg, 39 N. J. Law, 663.
The result of section 5 of the act of 1863 was to save to the
city special taxes it had a right to levy under the charter of
1857, for paving, etc., of streets, alleys or avenues, and grading
and paving sidewalks, and the per capita tax authorized by
said charter for repairing streets, lanes, avenues and alleys.
Private Laws 1857, pp. 164, 176, 178. And also wharfage,
and license, taxes and fines, and other incidental sources of in-
come. Private Laws 1857, ch. 4, sees. 35, 36, 47, 48, 55, 56,
58, 59.
The whole scope of the law of 1863 is restrictive of powers
conferred by the charter of 1857. Compare Private Laws 1857,
p. 160, ch. 3, sees. 2, 3, 4, 5, with sec. 4, act 1863, Private
Laws 1863, p. 172.
The construction as to streets contended for by appellant
can not be followed, because it would violate the rule that re-
quires that the construction to be adopted must harmonize
Avith the general spirit of the act. Sedg. on Stat, and Const.
Law, p. 287, rule 9 of division 17.
The city of Quincy was not authorized by law to create a
1880.] Binkert v. Jansen et at. 289
Opinion of the Court. , *
sinking fund at all, much less, after having exhausted its
powers of taxation, to levy an additional tax therefor.
The law of 1863 specified a rate of taxation which the city
should not exceed. Private Laws 1863, p. 172, sec. 4. No
additional powers being conferred on the city, by after legis-
lation, the powers of the city could only be exercised subject
to the limit of taxation fixed by that law. United States v.
Macon County, 99 U. S. 582 ; Burroughs on Tax. pp. 375, 376,
sec. 129, and cases cited, notes 1 and 2, p. 376; Leavenworth
v. Norton, 1 Kan. 432 ; Jeffries v. Lawrence, 42 Iowa, 505 ;
Beard v. Supervisors of Lee County, 51 Miss. 542 ; 2 Dill, on
Mun. Corp. sec. 610.
The law will presume that a debt was contracted simulta-
neously with the issue of bonds. Jeffries v. Lawrence, 42
Iowa, 503.
The |300,000 unregistered bonds, issued after 1866, but
under a law of 1857, and named in the bill, were then issued
subject to the provisions of the charter as amended by the
act of 1863, and the city could not be required to levy a tax
in excess of the charter rate to pay interest or principal of
said bonds. United States v. Macon County, 99 U. S. 582 ;
Jeffries v. Lawrence, 42 Iowa, 505 ; Beard v. Supervisors Lee
County, 51 Miss. 242.
But the complainant's bill makes a prima facie case, as to
said unregistered bonds, for an injunction. Jeffries v. Law*
rence, 42 Iowa, 505.
And there is no intendment on the pleadings that the in-
debtedness on which said bonds were issued arose prior to the
taking effect of the law of 1863. Story on Eq. Pleadings,
sees. 452, 452 a; 1 Dan. Ch. Prac. p. 545.
Mr. Justice Scott delivered the opinion of the Court:
The questions involved in this case have reference to taxes
levied by the city of Quincy for the year 1878, and the
Appellate Court, to which an appeal was taken from the
19—94 III.
290 Binkert v. Jansen et al. [Jan. T.
Opinion of the Court.
circuit court, having expressed doubts as to 'whether that court
had jurisdiction, it is stipulated by the parties, to avoid all
questions as to the jurisdiction of this court, that as the
original record from the circuit court is before us, it may
stand, if need be, as on error, so that in any event this court
can have jurisdiction to hear the errors assigned.
The bill is framed on the theory all taxes levied by the city
of Quincy for the year 1878 in excess of $1.03 on each one
hundred dollars worth of property, estimating the same at the
assessed value, is without warrant of. law, and is therefore
void; and complainants, having paid all taxes that the city
could legally levy for any purpose upon their property, bring
this bill to enjoin the excess. The questions made arise on
demurrer to the bill, consequently there can be no disagree-
ment as to the facts.
The city of Quincy was incorporated under a special
charter in 1840, and has never since then become incor-
porated under any general law. Prior to the adoption of
our present constitution, numerous amendments to the special
charter were adopted by the General Assembly and accepted
by the city, that will be presently considered, so far as they
authorize the imposition of taxes.
Counsel for the city seek to maintain their propositions :
1st. Under the act of 1877 the city of Quincy has power
to levy taxes sufficient to raise the amount legally appropri-
ated by the city council, without regard to prior limitations
contained in the charter or other special laws affecting the
city, as cities incorporated under the general incorporation
law of 1872 may do.
2d. If that proposition can not be maintained, and the
city is held to be governed in respect to taxation by special
laws, still it was authorized by those laws to levy a higher
rate than $1.03 on the one hundred dollars' worth of property,
real and personal, and the decree of the circuit court should
be so modified as to permit the collection of the whole amount
of taxes authorized by law and remaining unpaid.
1880.] Binkert v. Jansen et at. 291
Opinion of the Court.
It is doubtless a correct principle that all acts of the legis-
lature conferring or restricting the revenue . powers of a .
municipal corporation are. in their nature public laws, whether
so declared in terms or not, and all courts will be bound to
take judicial notice of the same in all proceedings affecting
revenue matters.
The act of 1873, generally known as the "city tax act," of
course can not affect the questions made on this record, as that
act has been declared in all its parts and provisions unconsti-
tutional and invalid. The People v. Cooper, 83 111. 585. Nor
do we understand counsel to maintain that any power is de-
rived from section 122 of the general Revenue law to levy
any rate of taxation beyond that authorized by the charter
and other special laws in relation to city revenues. It was
expressly decided in Edwards v. The People, 88 111. 340, that
the section of the general Revenue law cited did not repeal
a provision in the charter of the city of Springfield which
prohibits the city from levying a tax exceeding two and one-
half per cent. It was said there, was no conflict between
section 122 of the Revenue law and the charter. The cor-
porate authorities were bound to observe the provisions of the
Revenue law as to the time of making the return of the
amount required to be raised by taxation, but as to the rate
to be levied, they were to be controlled by the charter.
On this branch of the case the question most elaborately
argued is as to the eifect of the act of 1877. Section 1 of
that act provides that all cities, villages and incorporated
towns in this State, whether organized under the general law
or special charters, shall assess and collect their taxes in the
manner prov-ided for in article eight (8) of the act entitled
"An act to provide for the incorporation of cities and
villages," approved April 10, 1872, and "in the manner pro-
vided for in the general revenue laws of this State, and all
acts or parts of acts inconsistent with the provisions of this
act are hereby repealed."
292 Binkert v. Jansen et al. [Jan. T.
Opinion of the Court.
The argument is, this act, by reference to the act of 1872,
gives to cities and villages not acting under the general law
the same power to levy taxes to raise the amounts appropri-
ated by ordinance that cities and villages under that act
possess, and that the repealing clause of the act of 1877
removes all limitations imposed by the charter, and all special
laws affecting city taxes. We can not concur in this con-
struction. Reading the whole act together, as we should do,
it has reference only to the mode or manner of assessing and
collecting municipal taxes, and has no relation to the rate of
taxation. That being its meaning, it is not inconsistent with
the charter and special laws affecting the city, which impose
limitations as to the rates of taxation, beyond which the city
may not go, and therefore does not operate as a repeal of such
limitations.
The reference made to the "general revenue laws of the
State" strengthens this view. As we have seen, the general
law did not operate as a repeal of provisions contained in city
charters imposing limitations as to the rates of taxation by
municipal corporations. It will be observed the provisions
are, cities under special charters " shall assess and collect their
taxes" in the manner provided in the general incorporation
act of 1872, and in the "manner provided in the general reve-
nue laws of the State." Connecting the two provisions
together, as is done, it is obvious it was the intention of the
legislature to provide a uniform mode for assessing and col-
lecting municipal taxes without regard to the rates of taxa-
tion. The necessities of the cities of the State for revenues
are, of course, not the same, and the legislature has not seen
fit to fix any maximum rate of taxation by general law which
no city may exceed. Should the construction contended for
be adopted, it would not create, as counsel seem to argue, a
uniform rate of municipal taxation throughout the State. It
is neither practicable nor desirable there should be a uniform
rate of municipal taxation in the cities of the State, so long
1880.] Binkert v. Jansen et al. 293
Opinion of the Court. *
as their necessities for revenues remain so different, as must
always be the case.
The discussion of the second proposition submitted in-
volves a construction of the act of 1863, entitled "An act
amendatory of the several acts relating to the city of Quincy,
to provide for raising a revenue therein, and regulating costs
arising under the charter and ordinances of said city." Sec-
tion 4 of that act confers the power and makes provision for
the collection of a gas tax not exceeding twenty-eight cents,
and a school tax of not exceeding twenty-five cents, on each
one hundred dollars of the assessed value of real and personal
property in said city in every year; and "on all real and
personal property within the limits of said city, to pay the
debts and meet the general expenses of said city, not exceed-
ing fifty cents on each one hundred dollars per annum on the
assessed value thereof." The aggregate of the several sums
the city is authorized, under section 4, to levy in any one
year, for the purposes therein named, is $1.03 on each one
hundred dollars of the assessed value of real and personal
property, and of the taxes levied for 1878 only that sum,
complainants insist, is legal, and, having paid that sum, they
insist the residue shall be enjoined.
The difficulty arises out of the ambiguity in the repealing
clauses contained in section 5 of the act. All laws and parts
of laws, other than the provisions thereof touching the levy-
ing and collection of taxes on property within said city,
except those regulating such collection, and all laws in
conflict therewith, are, by that section, expressly repealed ;
and then it is added, "but this act shall not affect taxes of
said city relating to streets and alleys, or to licenses of what-
ever nature, nor any source of revenue other than taxes on
real or personal property." By reference to former laws, it
will be seen the city had numerous sources of revenue other
than taxes on real and personal property, such as wharfage
rates on all boats and crafts landing anywhere within the
limits of the city; from taxes imposed for licenses for keeping
294 Binkert v. Jansek et al. [Jan. T.
Opinion of the Court.
ferries, billiard saloons, dram-shops, omnibuses, theatrical
and other exhibitions, etc. These sources of revenue, it is
plain, are not affected by the act of 1863. The difficulty is
as to taxes relating to " streets and alleys." Turning again
to the charter of 1857, it will be seen the city had power to
levy and collect a special tax on. owners of lots for the pur-
pose of paving and grading the sidewalks in front of their
respective lots and keeping the same in repair; and to pave
and macadamize or otherwise improve the streets, and assess
real estate benefited thereby with the costs, provided such
assessment did not exceed a certain per cent. Under the act
of 1857, the city council had power, for the purpose of keep-
ing streets, lanes, avenues and alleys in repair, to levy in each
year a tax, not exceeding $2, on each white male inhabitant in
the city over tweuty-one years of age, not expressly ex-
empted. It will be observed that all taxes relating to "streets
and alleys," except the capitation tax, are upon real estate.
The saving clause of the repealing section as to taxes, re-
lating to " streets and alleys," is as " to other than taxes on
real or personal property." Hence it follows that the only
taxes relating to "streets and alleys" not affected by the
repealing clauses of the section, is the capitation tax. While
it may be conceded there is some ambiguity in the repealing
clause of the act, that is our understanding of its meaning,
and it is the most reasonable construction that can be adopted
and the only one consistent with the context.
But if this were not the true construction of the fifth sec-
tion, we do not understand that any special taxes for making
and repairing sidewalks or paving and grading streets have
been levied on the owners of lots, such as were authorized to
be imposed by the charter of 1857. The appropriation made
by the ordinance adopted was generally for "streets and
alleys," to be levied on all property within the limits of the
city, real and personal, and not upon lot owners specially
benefited. A general tax on real and personal property for
"streets and alleys" is not within the saving clause of section
1880.] McConnell v. McConnell. 295
Syllabus.
5 of the act of 1863. It does not seem to us it was the
intention of the legislature a general tax for streets and
alleys should be levied each year, notwithstanding the act of
1863 fixing limitations as to the rates of taxation to be levied
for the several purposes mentioned. The act will not bear
that construction.
After a careful consideration Ave are led to the conclusion
the act of 1863 fixes the limit of taxation upon real and per-
sonal property at $1.03 upon each one hundred dollars of the
assessed value of such property for all purposes, and this in-
cludes taxes for interest and sinking fund other than the interest
on registered bonds, which is provided for in another way. It
may be said this construction will greatly inconvenience the
city by cutting off needed revenues. That may be, but the
court can not furnish the remedy by construction. A remedy
is within the reach of the people by adopting the general
incorporation act, under which taxes sufficient to raise such
amounts as can be legally appropriated can be levied.
All taxes levied for the year 1878, above $1.03 on each one
hundred dollars of the assessed value of real and personal
property within the city, being without authority of law, are
void, and equity has jurisdiction to enjoin the collection of the
same, as was done.
The decree will be affirmed.
Decree affirmed.
John McConnell
v.
E. Amanda McConnell.
1. Executor db son tort — may discharge himself by paying debts of estate.
An executor de son tort of a solvent estate may discharge himself even as against
the demand of the rightful executor, by proving debts paid to the amount of
the goods received by him which had belonged to the estate of the deceased-
296 McConnell v. McConnell. [Jan. T.
Briefs for Plaintiff in Error and Defendant in Error.
2. Where a widow of a party took a United States bond of $1000, which
belonged to her deceased husband's estate, and never accounted for the same
to the administrator, but paid the same upon a note of $1500 against the
estate, it was held, that she was not liable to the heir at law in equity for the
amount of the bond.
Writ of Error to the Appellate Court for the Third Dis-
trict; the Hon. Chauncey L. Higbee, presiding Justice,
and Hon. Oliver L. Davis and Hon. Lyman Lacey, Jus-
tices.
Mr. N. M. Broadwell, for the plaintiff in error:
Where a person improperly intermeddles with the property
of an estate, he becomes a trustee de son tort, and is liable at
the suit of those beneficially interested. Perry on Trusts,
sec. 245.
In Williams on Executors it is said: " When a man has so
acted as to become in law an executor de son tort, he thereby
renders himself liable, not only to an action by the rightful
executor or administrator, but also to be sued as executor by
a creditor of the deceased, or by a legatee." 1 Williams on
Executors, p. 153.
And in Hansford v. Elliott, 9 Leigh, 79, it is expressly
held that the legatee may bring his suit in equity to charge
an administrator de son tort.
Mr. William L. Gross, for the defendant in error :
A person can not be charged by the heir as administrator
de son tort. A suit for that purpose can only be main-
tained by the rightful administrator or executor. Addison
on Torts, (4th Eng. ed.) vol. 1, 447; Muir v. Leake, etc.
Orphan House, 3 Barb. (N. Y.) Ch. 477; llclntire v. Carson,
2 Hawks (N. C.) 544.
If there has been intermeddling by the defendant sufficient
to charge her as administrator de son tort, to whom belonged
the right of calling her to account? Manifestly, to the extent
of the intermeddling, she was to be treated as an administra-
tor. As to this property she was administrator. Now, whether
1880.] McConnell v. McConnell. 297
Opinion of the Court. *
administrator by her own wrong, or rightfully, she was charge-
able. But to whom? Manifestly, again, to the rightful or
succeeding administrator. Such was and is the law of this
State. 1 Gross' Stat. 1871, ch. 109, Wills, sec. 97, p. 813,
(Rev. Stat. 1845, sec. 75, 552) ; Rev. Stat. 1874, ch. 3, p. Ill,
sees. 36 et seq; Duffin v. Abbott, 48 111. 17.
The legal title to the personal estate is in the administrator.
Lewis v. Lyons, 13 111. 117.
But if it be admitted that she, not having qualified as
an executor, had no right to meddle with the property of the
estate as she did, her sufficient answer is, that she used the
property of the estate, to the extent of this bond, in paying a
debt of the estate. The rule of decision is, that an administra-
tor de son tort of a solvent estate is entitled to be credited
with the amount of the debts of the estate which he has paid.
Dorsett v. Frith, 25 Ga. 537; Weeks v. Gibbs, 9 Mass. 74;
Reagan v. Long, 21 Ind. 264; Tobey v. Miller, 54 Me. 480;
Saam v. Saam, 4 Watts (Pa.) 432.
Mr. Justice Sheldon delivered the opinion of the Court :
The bill in this case, filed February 26, 1877, alleges that
James McConnell, father of the complainant, died January,
1867, testate, leaving a large estate; that, under his will, the
personal estate, after the payment of debts, etc., was bequeathed
to the children; that the defendant, the widow of said James
McConnell, took one U. S. government six per cent gold
interest bond, of the denomination of $1000, belonging to
trie estate, and never accounted for the same; that complain-
ant had, by assignments, acquired the interests of the other
legatees in and to the personal estate; that the executor had
settled the estate, and this bond was not needed to pay debts,
etc., and seeks to charge defendant with the value thereof,
and also to enjoin four suits which the defendant was prose-
cuting in the same court, against complainant, upon money
demands, in order that the amount due complainant on account
298 McConnell v. McConnell. [Jan. T.
Opinion of the Court.
of the bond, when ascertained, might be set off against the
claims in said suits. A temporary injunction was granted.
It was set up in defence that the bond had been applied by
the defendant in part payment of a promissory note for $1500
which had been given by the testator, in his lifetime, to one
Josiah Marvin.
On final hearing the circuit court dissolved the injunction
and dismissed the bill. On appeal to the Appellate Court for
the Third District the decree was affirmed. The complainant
sued out this writ of error.
The plaintiff in error does not deny the well settled doc-
trine that an executor de son tort of a solvent estate may dis-
charge himself, even against the demand of the rightful
executor, by proving debts paid to the amount of the goods
received which had belonged to the deceased. See Weeks v.
Gibbs, 9 Mass. 72; Reagan v. Long, 21 Ind. 264; Tobey v.
Miller, 54 Me. 480; 1 Williams on Exrs. 267.
But it is claimed that the evidence did not sufficiently estab-
lish the existence of the note, or that the bond was applied
toward the payment of it.
Without reviewing the evidence in detail, we think it suffi-
cient to say, that we have carefully examined it upon the
points wherein it is claimed to be deficient, and the proof
shows to our satisfaction the existence of this note as a debt
against the estate, and that the bond in question was paid
upon it.
The payee of the note testifies to the giving of the note,
and that it was paid to him in April, 1867. Another disin-
terested witness, through whom the payment of $1000 on the
note was made, testifies to making such payment, and that it
was made with this bond. There is other corroborative evi-
dence that the bond was paid upon the note. There appears
nothing contradictory. It is objected that the note itself is
not produced. But it could not be expected that a paid note
would be preserved for such a length of time after its pay-
ment, so as to enable it to be produced in evidence.
1880.] Wilson v. The People. 299
Syllabus.
Upon the dissolution of the injunction the circuit court
awarded the defendant $100 as damages sustained by the
injunction. This is complained of as of too large amount.
The allowance appears to be warranted by the evidence, and
we do not regard it unreasonable.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
James Wilson
v.
The People of the State of Illinois.
1. Juror — competency, in what manner to he questioned. This court can not
inquire into the competency of a juror, where the record fails to show that
the question of his competency was presented to the court below by challenge
for cause or otherwise, the bill of exceptions simply showing that after the
juror was examined touching his competency, he was challenged peremptorily.
2. Same — competency of a juror as having formed an opinion. A person
called as a juror in a criminal case where the defendant was indicted for
murder, stated, in response to questions touching his qualifications as a juror :
"I have read newspaper accounts of the commission of the crime with which
the defendant is charged, and have also conversed with several persons in re-
gard to it since coming here, and during my attendance upon this term of
court, — do not know whether they are witnesses in the case or not — do not
know who the witnesses in the case are. From accounts I have read and from
conversations I have had, I have formed an opinion in the case, and would
have an opinion in the case now if the facts should turn out as I heard them,
and I think it would take some evidence to remove that opinion. Would be
governed by the evidence in the case, and can give the defendant a fair and
impartial trial according to the law and the evidence." A challenge for
cause in behalf of the defendant having been denied, the juror was challenged
peremptorily. It was held, the juror was competent. The opinion formed
seems not to have been decided, but one of a light and transient character,
which, at no time, would have disqualified the juror from serving. But aside
from this, all objection as to his competency in respect to any opinion he
seems to have formed was removed by the statute. Rev. Stat. 1874, 633, $ 14.
3. Same — effect of peremptory challenge where challenges not exhausted. In
this case the defendant, in the selection of the jury by whom he was tried,
exhausted only two of his peremptory challenges, so that even if the juror
300 "Wilson v. The People. [Jan. T.
Syllabus.
was erroneously held to be competent, and the defendant thus compelled to
accept him or to challenge him peremptorily, no harm could have resulted,
and the error would not be ground of reversal.
4. Criminal law — self-defence. The law does not allow, a person to wilfully
bring an attack upon himself for the purpose of getting an opportunity to
kill his assailant, and then justify on the ground that he was acting only in
his necessary self-defence. So where a person pursues another to his place
of refuge, with malice, and actuated by a desire for revenge, and invites the
peril of an attack upon himself in order that he may have an opportunity to
kill his assailant, if he thus draws an attack and kills his assailant, the act
of killing is murder.
5. Same — threats. Where threats to take life are made, it has been held
that before a party may attack or inflict harm upon the person making the
threats, there must be some overt act from which an intention may be reason-
ably inferred to carry into effect the threats, and the danger must be imminent.
6. Same — of evidence as to motive of witness. One McDonald, while in the
store of another, was shot and killed by one Zack Wilson. On the trial of a
brother of Zack, on the charge of murder, as having advised and aided in the
act of killing, the proprietor of the store in which the killing was done, and
who was present at the time, was a witness, and in answer to the question by
the prosecution: "Will you tell the jury how you came to load your gun?"
said: "I had an intimation that Zack was coming there to shoot McDonald,
and I was loading my gun to protect my house." As original testimony this
would doubtless have been objectionable. But on cross-examination the defend-
ant had drawn from the witness the fact that he was loading his gun when
Zack approached McDonald, necessarily with the vieAV to raise some unfavor-
able inference against the witness, or some favorable inference in behalf of the
defendant, — and under the circumstances there was no impropriety in getting
at the motive of the witness in loading his gun.
7. Same — as to declarations of the person killed. In the case mentioned,
inasmuch as the line of defence justified the shooting of McDonald as in
necessary self-defence of Zack, it was competent, in rebuttal of that theory,
to show that McDonald was not aggressive, but on the contrary acting on the
defensive, and to that end, any of his declarations explanatory of accom-
panying acts would be admissible as a part of the res gestce.
8. Same — declarations of a co-conspirator. Where several persons have
conspired to have done an unlawful act, the declarations of one of them in
respect of the subject matter of the conspiracy, made after the conspiracy
has been formed, are admissible in evidence against his co-conspirators.
9. But declarations in respect to the proposed unlawful act, made by one
of the parties before the conspiracy was entered into, will not be competent
evidence against other persons who subsequently joined in the conspiracy to
do the threatened act. Though in this case the admission of such declara-
1880.] Wilson v. The People. 301
Brief for Plaintiff in Error.
tions against a subsequent co-conspirator was held not to be ground of re-
versal, as the evidence could have done no harm, under the circumstances of
the case, to the party against whom they were admitted.
10. Error — improper argument by counsel. Although a State's attorney
may have indulged in much intemperance of speech in his closing argument
in a criminal case, yet, if it does not appear that the attention of the presid-
ing judge was called fro the circumstance, it can not be said the court erred
in not checking the counsel.
11. Error will not always reverse. But even if there were error in
that regard, it would not authorize the reversal of a judgment clearly right
under the evidence. Where the result reached by a judgment is clearly right,
it will never be reversed for errors which do not affect the substantial merits
of the case.
"Writ of Error to the Circuit Court of Hancock county;
the Hon. Joseph Sibley, Judge, presiding.
Mr. Henry W. Draper, and Mr. Bryant T. Scofield,
for the plaintiff in error :
The jurors Gray and Garlinghauser were incompetent, hav-
ing both formed an opinion from what they had read and
heard, and stating that it would require some evidence to
remove their several opinions. They were challenged for
cause and the challenge overruled, when they were challenged
peremptorily. It will not do to say that the defendant was
not injured in being compelled to use his peremptory challenges
as to them because the bill of exceptions fails to show he
exhausted his peremptory challenges. Prudence would re-
quire an attorney to be careful not to exhaust his right to
such challenges, and to accept jurors he dislikes rather than
do so, for fear of getting still more objectionable jurors
forced on him. Baxter v. The People, 3 Gilm. 376; Gray
et al. v. The People, 26 111. 344.
The court erred in admitting in evidence the threats made by
Zachariah Wilson, in Colmar on the Saturday evening before
the killing took place, as there was no pretence that there was
any conspiracy between him and the defendant before the
next Monday, when the killing did take place. There being
no conspiracy at the time these threats were made, they could
302 Wilson v. The People. [Jan. T.
Brief for Plaintiff in Error.
not affect the defendant on trial, as he was no party to them
and knew nothing of them at the time. After a conspiracy
is formed, anything said or done by any' one of the conspira-
tors in pursuance of the original concerted plan is evidence
against each, but what any one of the conspirators said or did
before the conspiracy was formed, or after the object of the
conspiracy has been accomplished, is evidence against him
alone. 2 Russ. on Crimes, 697 ; 1 Phil, on Ev. 201, (9th
ed.) ; 3 Arch. Crim. Prac. and PL 6th ed. by Waterman,
621-2, and note; 1 Greenlf. Ev. sec. 111.
The declarations of Zachariah Wilson had no tendency to
further or promote any common criminal intent so as to be-
come a part of the res gestae. They were mere hearsay, and
not admissible to prove the body of the crime against the
prisoner, or to prove the existence of a conspiracy. Glawson
v. State, 14 Ohio State, 234-8; Fonts v. State, 7 id. 471 ;
Koscoe's Crim. Ev. 84 and 617; 1 Starkie's Ev. 406-7;
Browning v. State, 30 Miss. Qb6-666.
The fourth, fifth and twenty-sixth of the people's instruc-
tions given had attached to each a brief of authorities. This
was highly improper, and we think error, as giving undue
weight and prominence to them. Wright v. Prosseau, 73 111.
381.
The ninth instruction informed the jury that if they believed
the defendant had wilfully and knowingly sworn falsely to any
material fact in the case they might disregard his entire testi-
mony, except so far as the same was corroborated by other
witnesses whose testimony they believed to be true.
The latter clause of this instruction ignores all the evi-
dence in the case except that of "other witnesses/' such as the
acts of the parties, which is generally the strongest kind of evi-
dence, and the jury might well understand from it that it was
left to them to determine without restriction whom to believe
or disbelieve. Hartford Life Ins. Co. v. Gray et at. 80 111.
28-31.
The 13th instruction for the people proceeds upon the
1880.] Wilson v. The People. 303
Brief for The People.
assumption that all the parties indicted were acting together
in pursuance of a common, unlawful and felonious design
against the person of McDonald. This was one of the dis-
puted facts, and the jury should have been left free to say
from the evidence if the defendant did so act. Roach et al. v.
People, 77 111. 29; Adams v. Smith, 58 111. 421; Durham v,
Goodwin, 54 111. 470.
Messrs. Mason & Griffith, for the People:
The jurors had no such fixed opinions as to disqualify them.
They were only hypothetical, and not decided. Smith v. Eames,
3 Scam. 81 ; Gardner v. People, id. 89; Thompson v. People, 24
111. 65; Leach v. People, 53 111. 317.
But if the challenges to them were improperly overruled,
the defendant was not prejudiced thereby, as he excused the
jurors peremptorily, and did not exhaust his peremptory chal-
lenges in the selection of the jury. Mingia v. People, 54 111.
274.
It is the well settled rule of this court that it will not grant
a new trial or reverse a judgment where it appears from the
entire record that justice has been done, and that the errors
complained of could not have affected the merits of the case.
Greenup v. Stoker, 3 Gilm. 202; Winnesheih Ins. Co. v.
Schuelter, 60 111. 473; St. Louis and Southeastern Railway
Co. v. Lux, 63 111. 525; Robinson et al. v. Randall, 82 111.
523; Roach v. People, 53 111. 317.
The question whether or not evidence is admissible and
improper can not be raised for the first time in this court. It
must be objected to in the court below, and the record must
show it, and show that the ruling was excepted to. Snyder
v. Ijoframboise, Bre. 343; McKinney v. People, 2 Gilm. 552;
Holmes v. People, 5 Gilm. 480; Clay v. Boyer, 5 Gilm. 508;
Miner v. Philips, 42 111. 131 ; Mingia v. People, 54 111. 274;
Gardner v. Haynie, 42 111. 292 ; B?ebe v. People, 73 111. 320;
Earl v. People, 73 111. 329 ; Humphrey ville v. Culver, Page &
Hoyne, 73 111. 329.
304 Wilson v. The People. [Jan. T.
Opinion of the Court.
The threats of Zachariah Wilson, made in Colmar on the
Saturday before the killing of McDonald, were properly ad-
mitted as tending to show malice on the part of Zachariah,
and characterizing the act of killing by him as murder. The de-
fendant was tried as an accessory to the murder, and hence it
became necessary to show what crime the act of the principal
actor in the tragedy amounted to. If it was not murder, then
the defendant could not have been convicted as accessory
thereto. Brennan v. People, 15 111. 511; Regina v. Murphy,
8 C. & P. 744; Regina v. Shellard, 9 C. & P. 170; Crown-
ingshieloVs case, 10 Pick. 497; People v. Mather, 4 Wend.
257; 1 Phil. Ev. 194-197, note 5, p. 197.
The giving or refusing of an instruction stating merely an
abstract proposition of law can not be assigned for error.
Reynolds v Greenbaum, 80 111. 416; Ryan v. Donelly, 71 111.
100; Tuttle et al. v. Robinson, 78 111. 332.
If the whole series of instructions present the law fully
and fairly to the jury, this court will not reverse because
some of them may appear insufficient or erroneous when con-
sidered independently. Toledo, Wabash and Western Railway
Co. v. Ingraham, 77 111. 309; Stowell v. Beagle, 79 111. 525;
Kennedy v. People, 40 111. 502; Northern Line Packet Co. v.
Binninger, 71 111. 511; Latham v. Roach, 72 111. 179; Smith
v. People, 74 111. 146.
Mr. Justice Scholfteld delivered the opinion of the
Court :
An indictment was returned by the grand jury of Hancock
county into the circuit court of that county, at its October
term, 1876, against Zachariah Wilson, alias Zack Wilson,
Nicholas Wilson, alias Nick Wilson, and James Wilson, for
the murder of Thomas McDonald.
James Wilson was put upon his trial alone, upon that in-
dictment, at the March term, 1877, of the Hancock circuit
court. The jury returned a verdict of guilty, as charged in the
indictment, against him, and fixed his punishment at fourteen
1880.] Wilson v. The People. 305
Opinion of the Court.
years imprisonment in the penitentiary. The court, after over-
ruling motions for a new trial and in arrest of judgment, gave
judgment upon the verdict of the jury, and the present writ
of error is prosecuted to reverse that judgment.
While empanneling the jury, William Gray was called as
a juror in the case, and, being first duly sworn, testified, in
response to questions touching his qualifications as a juror:
"I have read newspaper accounts of the commission of the
crime with which the defendant is charged, and have also
conversed with several persons in regard to it since coming
to Carthage and during my attendance upon this term of
court; do not know whether they are witnesses in the case or
not; do not know who the witnesses in the case are. From
accounts I have read and from conversations I have had, I
have formed an opinion in the case; would have an opinion
in the case now, if the facts should turn out as I heard them,
and I think it would take some evidence to remove that
opinion ; would be governed by the evidence in the case, and
can give the defendant a fair and impartial trial, according to
the law and the evidence." The defendant, by his counsel,
thereupon challenged said Gray, for cause, but the court re-
fused to allow the challenge, and held that he was a competent
juror to try the case. To this the defendant excepted, and
then challenged Gray peremptorily.
A. A. Garlinghauser was also called as a juror in the case,
and, after he was examined touching his qualifications as a
juror, the defendant challenged him peremptorily.
The point is made that the court erred in holding these
jurors to be competent.
The question of Garlinghauser's competency was not raised
in the court below. The bill of exceptions simply shows that,
after his examination touching his competency, the defendant
challenged him peremptorily. It fails to show that the ques-
tion of his competency was presented to the court by chal-
lenge for cause or otherwise.
20—94 III.
306 Wilson v. The People. [Jan. T.
Opinion of the Court.
We think all objection to Gray's competency is clearly
removed by the statute, if indeed he would have been incom-
petent otherwise. It provides in two of the clauses of sec.
1*4, chap. 78 (Rev. Stat. 1874, p. 633,) as follows: "Provided,
further, that it shall not be a cause of challenge that a juror
has read in the newspapers an account of the commission of
the crime with which the prisoner is charged, if such juror
shall state, on oath, that he believes that he can render an
impartial verdict according to the law and the evidence:
And, provided, further, that in the trial of any criminal cause,
the fact that a person called as a juror has formed an opinion
or impression based upon rumor or upon newspaper state-
ments (about the truth of which he has expressed no opinion),
shall not disqualfy him to serve as a juror in such case, if he
shall, upon oath, state that he believes he can fairly and im-
partially render a verdict therein in accordance with the law
and the evidence, and the court shall be satisfied of the truth
of such statement."
The opinion formed seems not to have been decided, but
one of a light and transient character which, at no time, would
have disqualified the juror from serving. It was said, in
Smith v. Eames, 3 Scam. 81, "If the opinion be merely of
a light and transient character, such as is usually formed by
persons in every community, upon hearing a current report,
and which may be changed by the relation of the next person
met with, and which does not show a conviction of the mind
and a fixed conclusion thereon, or if it be hypothetical, the
challenge ought not to be allowed." See also, to the same
effect, Gardner v. The People, 3 Scam. 88 ; Thompson v. The
People, 24 111. 65; Leach v. The People, 53 id. 317.
But even if the juror had been incompetent, still, under
the ruling in Robinson v. Randall, 82 111. 522, holding that
he was competent was an error that did no harm, and could
not, therefore, be held to be ground for reversal. The de-
fendant exhausted but two of his peremptory challenges,
and hence, when he accepted the jurors by whom he was
1880.] Wilson v. The People. 307
Opinion of the Court. .
tried, he was entitled to eighteen peremptory challenges;
and it must, therefore, be presumed the jurors by whom he
was tried were entirely unobjectionable to him.
The most important question in the case, and that to which
our attention shall now be directed, is, whether the verdict
is against the law and the evidence?
The fact that Thomas McDonald was shot and killed by
Zachariah Wilson, in Wade's drug store, in the town of Ply-
mouth, Hancock county, on Monday, the 14th of August,
1876, is not controverted. It is controverted, however, 1st,
that James Wilson was a party to that killing; and 2d, that
such killing was felonious.
The evidence shows, that on Saturday, the 12th day of
August, 1876, Zachariah Wilson and Thomas McDonald were
in Plymouth. Wilson had got on his horse to go home, and,
whilst his horse was drinking at a public well, McDonald
seized the bridle and threatened to whip Wilson — cursing and
abusing him with loud and profane epithets — and daring him
to get off his horse and fight. Wilson seems to have taken
this very quietly, at the time, remaining on his horse, and,
when ready to go, disengaging McDonald's hold without
difficulty. The witnesses all concur that he let his horse
walk off at a moderate pace, and kept watching McDonald
over his shoulder, who followed him for some distance, abus-
ing him, threatening him, and challenging him to fight.
Some of the witnesses think McDonald had a knife or pistol,
or both, in his hands at the time, while others, with equal
opportunity for observation, deny that he displayed any
weapons whatever. Some of the witnesses also say that
McDonald, at this time, threatened to kill Wilson, while
others, with equal opportunity of hearing, deny that he made
such threats. Without stopping to consider on which side is
the weight of evidence in these respects, we think it sufficient
to say that all of the witnesses concur that McDonald did
not use, or attempt to use, any weapon upon Wilson ; and
they also concur in describing such conduct on the part of
308 Wilson v. The People. [Jan. T.
Opinion of the Court.
Wilson, as pretty clearly indicated, that he, in fact, had no
fear of McDonald. It is shown, however, that his anger was
aroused, and that he resolved to have revenge.
Zachariah Wilson, when examined as a witness, admitted
that he intended, on Monday, the 14th of August, to cowhide
McDonald, qualifying it, however, with the proviso, "if
McDonald did not let him alone."
Whether the defendant was in Plymouth, on Saturday, is
not certain, — both he and Zachariah deny that he was — but
one of the defendant's witnesses (Washington) makes McDon-
ald say, on Saturday, that he was threatening him and Zach-
ariah, and he would kill both before they left town. This,
doubtless, is not very reliable; but it is certain, at all events,
that defendant learned, in some way, on Saturday, that there
had been trouble between Zachariah and McDonald on that
day; for he says, in his direct examination as a witness, "I
had been informed, on Saturday, that McDonald, with the
Barkers, had assaulted Zack."
The defendant, Zachariah, and Nicholas Wilson, are broth-
ers, and, at that time, they lived in the country, within a few
miles of Colmar, though not all in the same locality. On
Monday morning, August 14, 1876, three of the Wilsons,
(probably not including the defendant, as he denies that he
was with them, and the proof does not show affirmatively
with certainty that he was) and a cousin of theirs, called
"Arch Allen," were in Colmar, as it appears, to take the
train for Plymouth.
Andrew Way, testifying on behalf of the prosecution, says:
" I was in Colmar the Monday morning that McDonald was
killed; saw the Wilsons and Allen come in Colmar together;
there were four of them; came in two buggies; they all took
the train together for Plymouth." This witness also shows
why these parties went to Plymouth on that morning. He
says that he, himself, went to Plymouth in the afternoon,
and, on cross-examination as to his motives for going there,
he said : " I had two reasons for going to Plymouth. * * *
1880.] Wilson v. The People. 309
Opinion of the Court. •*
The other reason was, when I went into the saloon where the
Wilsons and Allen were that morning, one of them said,
'Tom McDonald will be the worst hurt man in Plymouth
before night;' and, just like any other fool, I had my curi-
osity aroused, and went down to see what would turn up."
Whether the defendant went from Colmar to Plymouth on
the same train with his brothers and cousin, or not, it is cer-
tain that he also went to Colmar on the same morning, and
there took the train for Plymouth, — and that Zachariah,
James and Nicholas Wilson, and Arch Allen, were all in Ply-
mouth by noon, or a little after that time.
The next account the evidence gives of these parties is,
Zachariah and the witness Marion Curry, not far from noon,
were playing cards, for money, at an old hay-press. This was
only about fifty yards south of the street on which is Wade's
drug store, in which McDonald was killed. When in the
middle of the game, some one came below and called up:
" Zack, Jim wants you ! " The witness saw no one, but recog-
nized the voice calling to be that of Nicholas Wilson. Zacha-
riah immediately threw down the cards, got up, and departed
without saying a word. Zachariah, in his examination, admits
that it was his brother Nicholas who called him, and he says:
"Nick came and said he wanted to see me, and told me
McDonald had come to town, and I had better look out for
him; that McDonald and I had had trouble before, and I had
better be careful. We went to Bagby's store, and, I think,
got a drink there. Went from there to the harness shop. Met
Romine Smith, and talked about the affair on Saturday," etc.
The village of Plymouth contains a public square, with a
street on each side of the square, and four streets, being one
from each point of the compass, terminating opposite the
center of the square. Wade's drug store is on the street run-
ning east and west, on the south side of the square. It is
near the south-east corner of the square, and faces to the north.
Metzger's store is 30 or 40 feet east of Wade's drug store, and
adjoins, on the east side, the street running from the south,
310 Wilson v. The People. [Jan. T.
Opinion of the Court.
opposite to the center of the square. There is a stairway on
the east side of this store, running up to the second story of
the building, and affording access to Rallston's harness shop,
which was then kept there. Bagby's store is just across the
street from Metzger's store, facing north, and King's store is
a few feet still west of Bagby's store. Shafer's drug store is on
the street running north and south, on the east side of the
square, near its south-east corner, facing west. It is about
150 feet diagonally across from Shafer's drug store to Wade's
drug store. Just north, a few feet, of Shafer's drug store is
Miller's hardware store, also facing west. On the north side
of the street running from the east, opposite the center of the
square, and facing to the west, is the Rallston House; and
farther north, on the same street, and near the north-east cor-
ner of the square, and also facing west, is the postoffice.
When Zachariah met Romine Smith, as Smith says, he was
in front of King's store, and Zachariah was coming down the
street from the west. Smith says, "he came up toward me,
and, looking me in the face with a peculiar smile, said : ' There
is going to be a man in Plymouth get a good cowhid-
ing to-day.' I said : ' Who, Zack?' He repeated it, that some
one would get a cowhiding before night. I asked him
again who he meant. He said: ' Thomas McDonald.' Just
then Nick Wilson came up from the east, towards Bagby's
store, and beckoned to Zack to step to one side. Zack and he
talked together a few minutes in a low tone, but I could not
hear what they said. They then started east. They went
down by Metzger's store, and went up into Rallston's harness-
shop." This same witness says that about ten minutes before
hearing the conversation with Zachariah, he had a conversa-
tion with Nicholas, and that while they were talking Thomas
McDonald rode up and tied his horse in front of Wade's drug
store. Thereupon Nicholas said: " Yonder is a man that
will be the worst hurt man in Plymouth before night. I
said: 'Who?' He said : < Old Tom McDonald.' He then
started off south." That was in the direction of the old hay-
1880.] Wilson v. The People. 311
Opinion of the Court. *
press, where Zachariah, as we have before seen, was -playing
cards; and so, this conversation must have been before, and
that with Zachariah after, Zachariah was called away from the
hay-press, by Nicholas, to see the defendant.
After Zachariah and Nicholas went into the harness shop,
other witnesses take np the narrative. Samuel Rallston, the
proprietor of the shop, says: " Zack and Nick Wilson came
in there," (the shop) "just after noon the day McDonald was
killed. They were looking at the whips. Zack asked for a
rawhide. I didn't have any. One of them laughed and said:
1 Black-snake will do as well for driving a threshing machine. '
* * * James Wilson came to the head of the stairs and
said something, and they all went away together."
Silas Wright, another witness present in the harness shop
when they were there, corroborates Rallston as to what oc-
curred.
Zachariah Wilson, in his evidence, admitted that his object
in going into the harness shop was to get a cowhide to use on
McDonald. He said: "Went with Nick to harness shop;
asked for a cowhide; I wanted to use it — to use it on McDon-
ald, if he kept on abusing me, and intended to get a cowhide
if Rallston had any."
Silas Wright says, when the Wilsons were in the harness
shop, "Jim," the defendant, came to the head of the stairs,
put his head in at the door and asked for something, which
the witness thought was a revolver. All three then went
down together.
When McDonald hitched his horse, as alluded to in the
evidence of Rornine Smith, he went directly across the street
to Wade's drug store. Samuel Wade was then sitting on a
box in front of the stcfre, between the door and the door of
Wade's doctor's office, which was annexed to and east of his
drug store; and he says, just after McDonald came across, he
saw the defendant up by Bagby's store. McDonald remained
and talked with Wade awhile, and then went into the drug
store.
312 Wilson v. The People. [Jan. T.
Opinion of the Court.
Charles Cox, a clerk in the drug store, says : " McDonald
came into the store a little after noon and sat on the west
counter. There are two counters in the store — one on the
east and one on the west side. The door is in the middle in
front, and a window on each side of the door at the ends of
the counter. James Wilson and Allen came into the store
and started towards McDonald, looking him right in the
face. They walked pretty fast. Both had their coats off.
Neither spoke until they got within about six feet of McDonald,
when McDonald jumped off the counter, pulled a revolver,
and said : i you, stop; don't you come any nearer. You
have come to get the drop on me, but you shan't/ * * *
I think McDonald pulled out his revolver as he jumped off'
the counter; * * * he followed them to the door — soon
after came back into the store." * * *
Henry Kneff says : * * * " I went into Wade's drug
store and saw McDonald sitting on the counter. When Jim
Wilson and Allen came in I was taking a drink of water at
the south end of the counter. I saw James step into the
door; he came in on a fast walk. Allen followed him.
Heard McDonald say : 'Stop; you are after me; you want
to get the drop on me, but you shan't do it.' James said, ' I
am not,' and turned and went out. They were walking
towards McDonald. Heard a pistol click, and McDonald
raised it towards James. He kept on talking and followed
them to the door."
George Barker says: "I was near Metzger's when James
Wilson and another man they called Allen passed by, going
to Wade's store. Soon after they came out on the run. Jim
went up to the harness shop. In a short time Jim, Zack and
Nick were all down on the sidewalk. They made two or
three steps towards Wade's, when McDonald stopped them."
After the defendant and Allen were thus driven out of
Wade's drug store, the evidence shows that McDonald made
no effort to inflict violence, but stood with one foot in the
door and the other on the sidewalk, brandishing a revolver
1880.] Wilson v. The People. 313
Opinion of the Court. -*
in one hand and a knife in the other, telling the Wilsons
they must keep away from him, — that all that he asked of them
was to keep away from him, etc. He was very profane and
abusive towards all of the Wilsons, and especially towards
Zachariah, whom he charged with ruining his family by
debauching his daughter. He remained standing while abusing
them, but afterwards sat down on the box, before alluded to
as being in front of the store, and sat there for a little while,
and then returned into the store and resumed his seat upon
the west counter. While McDonald was standing and abusing
the defendant and his brothers, the evidence shows that the
defendant advised Zachariah to shoot McDonald.
Alexander Woodworth says: "I heard loud talking in
Wade's store, and saw Jim and Arch Allen come running
out. Jim said he would see about that, using an oath. James
went up to the harness shop. Jim, Zack and Nick all three
came down on the sidewalk and started towards McDonald.
They went about three or four steps — Zack first, James next,
and Nick next. McDonald told them to stop. He stood in
the door of the store and said: 'Zack, it's you I am talk-
ing to. * * * You have ruined my family, and I want
you to keep away from me/ Jim said to Zack : ' Walk right
down, you needn't be afraid ; shoot, — shoot him.' Jim turned
and said, ' I know where there is a double-barreled shot-gun.' "
Allen Milton says: "McDonald stood with one foot in
Wade's store and the other outside, and had a knife and
revolver in his hands. He raised his hands up and said: ' I
want you to stop following me,' and cursed them. Wilsons
stopped. McDonald said: 'I am talking to you now, Zack
Wilson. You have damaged my family enough, and now
you want to beat me up; but I won't be beat up by you.'
James Wilson then said to Zack : l Shoot him down, him ;
kill him, kill him. * * *> The Wilsons turned and
went west; as they started, one of them said : " him, let's
go and get a double-barreled shot-gun and shoot him.'"
314 "Wilson v. The People. [Jan. T.
Opinion of the Court,.
Jesse Cain says, after describing the position of the parties:
" Heard McDonald say * * * * I want you to keep
away from me.' James Wilson said, '* * * let's go
and get a shot-gun and kill him/"
Wilborn Milton says: "# * * McDonald said they
had injured his family and ruined his daughter; told them
to keep away. Heard James say to Zack : i Shoot him, shoot
him/ James turned and went west and said : f I know where
there is a shot-gun, and I will get it/ "
There are other witnesses corroborative of these, but it is
unnecessary at this place to repeat their testimony. Indeed,
the defendant does not deny that he advised Zachariah to shoot
McDonald, but claims that he thought it necessary for his
self-defence.
After this scene both the defendant and Zachariah went in
pursuit of arms. They stopped at Bagby's store. The defendant
went in the room, Zachariah and Nicholas remaining at the
door. The defendant there asked for Ben Griffin's shot-gun,
and looked behind the door and in the back room for it. The
defendant went then to Ben Griffin's residence, which was
about eighty yards north from the north-west corner of the
public square, and requested of him the loan of his shot-gun.
Griffin informed him that he could have it, and that it was at
Shafer's store. He then went to Shafer's store, got the gun
and found there was no shot. He went to Miller's and
purchased five cents worth of No. 1 shot. He proceeded to
load the gun with these shot, and then sent a younger brother,
Edwin, for caps. He brought G. D. caps. The defendant,
with an oath, said he would not have G. D. caps, but must
have water-proof caps, saying, I want something that will go.
His brother effected the exchange of the caps he desired, and
he then finished loading the gun. Having done this, he left
the gun in Shafer's back room and started out to hunt Zach-
ariah, whom, it seems, he found near the postoffice.
Zachariah, meanwhile, had made several ineffectual at-
tempts to borrow a revolver, — in particular, once from Henry
1880.] Wilson v. The People. 315
Opinion of the Court. *
KnefF, saying to him that he wanted to exchange shots with
Tom McDonald, and once from Charles Wright — and he had
also made an ineffectual effort to purchase cartridges for a
revolver at Watte's, on the west side of the public square.
When the defendant found Zachariah near the post office,
he and Arch Allen were sitting on the fence conversing with
Charles Wright. The defendant called out to Zachariah to
come along, saying that he had business enough for all of
them — more than they could attend to; — this was about five
minutes before the shooting. This is testified to by Wright and
also by Ellis, the postmaster. They all, that is to say Zaohariah
and Allen, started south with the defendant. As they came
by the door of Miller's store, Miller says he heard the de-
fendant and Zachariah talking; that, as they started on south,
he heard the defendant say to Zachariah, "I have got the
shot-gun ready," or "the shot-gun is ready," — and this is sub-
stantially corroborated by Pectold, who was standing at the
time in front of Shafer's. When they arrived at Shafer's
store, the defendant and Zachariah passed through the store
into the back room where the gun was, remained a minute,
then came back in the front room; then Zachariah went into
the back room alone, picked up the gun, went out at a back
door and passed thence on to the sidewalk in front of the
store. As he got on the sidewalk, the witnesses describe him
as first raising his head to look around, then dropping it and
starting diagonally across to Wade's. The defendant, at this
time, Mark Homes says, was watching the movements of
Zachariah, and, as Zachariah started across towards Wade's,
the defendant said to Homes, " Now, we will see some fun."
When Zachariah had got about half way across, he changed
the gun from his left hand to his right, cocked it, and carried
it then with the breech under his right arm and the muzzle
down by his right leg until he stepped on the sidewalk in
front of Wade's. As he did this, he threw the barrel of the
gun into his left hand, holding the gun at the lock Avith his
right hand and with his eye fixed on Wade's door. He ad-
316 Wilson v. The People. [Jan. T.
Opinion of the Court.
vanced until he had got directly in front of it, when he
quickly drew the gun up, and, according to several of the
witnesses, said: " Now, if you want anything out of me, lead
out," and immediately snapped the right-hand barrel of the
gun. He then seemed, momentarily, to give or shrink back
on his left foot, and then straightened himself and instantly
fired the other barrel of the gun. At the same moment with
the discharge of this barrel, was the report of McDonald's
pistol from within the store room. The evidence is unable
to distinguish which of these reports was first. The over-
whelming preponderance of the evidence shows, however,
that Zachariah snapped the right-hand barrel before there was
any pistol-shot fired, and, when Zachariah fired, the muzzle
of his gun was either actually in or very near to the store door.
His shot killed McDonald. McDonald's shot was wild, —
entirely out of range of Zachariah, and downward.
With regard to McDonald's attitude when Zachariah ap-
proached and snapped the gun, there is but one witness aside
from Zachariah, — Charles Cox, the clerk in the store. He
seems to be entirely disinterested and without feeling, and
describes clearly what transpired. He says: " I was in the
store when the shooting took place; saw Zack coming across
from Shafer's; first saw him through the east window,
McDonald then sat on the west counter, a little over two-
thirds of the way back, facing east. I was about five feet
nearer the door than McDonald, — behind the west counter.
Zack did not pass by the door after I first saw him. * * *
I saw him get on the sidewalk about fifteen feet from the
door and a little east of it; he then walked in a direct line
towards the door. He came right to the door, presented the
gun, snapped the cap, dodged back, then straightened him-
self immediately and fired. At the time the cap snapped
McDonald still sat on the counter; as Zack raised the gun
the first time, he jumped from the counter. At the time the
gun fired, or almost at the same time, McDonald's revolver
fired. I saw where the shot from the revolver went; * * *
1880.] Wilson v. The People. 317
Opinion of the Court.
it went to the left of the door where Zack was standing, some
six or seven feet, and struck the west counter and passed
downward to the left, — was apparently shot with a hand held
an high as a man's head."
This evidence is not successfully contradicted. There is
mo pretence by any witness that McDonald was elsewhere
than in the storeroom when he was shot, — no pretence by any
witness entitled to credit that he was advancing upon or men-
acing Zachariah at that time.
The defence claim that Zachariah had reasonable grounds
to suppose that he was in great danger of bodily harm from
McDonald, and that, in shooting, he acted from the instincts
of self-preservation, and not from motives of malice or re-
venge. This position is utterly unsu stained by the evidence.
It is to be observed, in the first place, that the proof shows
when McDonald came to Plymouth he went straight to
Wade's, and never left there, staying most of the time inside
the store. If he made threats of violence, he made not the
slightest attempt to execute them. Even when the defend-
ant, and his cousin, Arch Allen, were within a few feet of him,
advancing as if in a hostile attitude, and were completely within
his power, he inflicted no violence, and showed by his man-
ner, as unmistakably as was possible, that he was acting only
on the defensive, and wanted merely to be let alone. He is
shown to have had a motive in going to Wade's. He had a
sick family, and was in the constant habit of getting medi-
cines there, and it was not a place that he ought to have
anticipated he would probably meet with the defendant and
his brothers, for they were not in the habit of resorting there.
During the entire day up to the time McDonald was killed,
no one other than McDonald is shown to have had any
difficulty with the defendant and his brothers, or either of
them. They were all over Plymouth hunting arms, and indi-
cating bloody intentions by act and speech, and yet not a
single human being is shown to have attempted to violently
interfere with them. As has been seen, on Monday morning,
318 Wilson v. The People. [Jan. T.
Opinion of the Court.
in Colmar, one of Zachariah's party, in his presence, if indeed
it was not himself, declared that McDonald would receive
violent injury on that day. When he was called from the
hay-press by Nicholas, it was to inflict violence on McDonald.
McDonald had then but just come to town, had given out no
threats, had menaced no one, and the promptitude with which
Nicholas informed Zachariah of his arrival, showed that he
was expected — that they were waiting and watching for him.
When Zachariah went to buy the cow-hide to use on McDon-
ald, McDonald had not yet driven the defendant and Arch Allen
out of Wade's, and had made use of no offensive language to
Zachariah on that day When, by reason of McDonald's
being armed, the cow-hiding was abandoned, the search for
arms was to inflict vengeance, not for defensive purposes.
Zachariah wanted of Kneff a good revolver to take a shot with
McDonald. Had they not stood within shooting distance
and heard all of McDonald's abuse, and passed away leisurely
and without harm? No one pretends that McDonald or his
friends was pursuing or following them up, and when McDon-
ald was found, he had to be hunted up in his place of refuge,
for such, to some extent, the proof shows it was, at Wade's.
Then, the manner of Zachariah's approach shows, more
strongly than any words can, that he was hunting his man.
He cocked both barrels of his gun before he got across, —
then, as he stepped on the sidewalk, he threw his gun in
shooting position, and as he came, in this attitude, in front
of his victim, he says, "Now, if you want anything out of
me, lead out," and instantly pulls the trigger.
Why did he go to Wade's at all? He knew McDonald was
there. The law does not allow a person to wilfully bring an
attack upon himself for the purpose of getting an opportunity
to kill his assailant, and then justify on the ground that he
was acting only in his necessary self-defence. The pretence
is made that Zachariah's object was only to get Nicholas, who
was then in front of Metzger's, away and out of danger. But
who was menacing Nicholas? No one. From whom had he
1880.] Wilson v. The People. 319
Opinion of the Court.
reason to anticipate injury? No one, unless McDonald, and
he had passed and repassed in front of the door of the room
in which McDonald was sitting, in perfect safety. The evi-
dence shows clearly this is all pretence.
It will be recollected that when the defendant, having got
and loaded the shot-gun, went to get Zachariah, he found him
near the postoffice, at the north-east corner of the square.
Now, the claim is, the defendant wanted to take Zachariah
out of town, to the defendant's father-in-law's, and that
Zachariah would not go and leave Nicholas, and that the gun
was simply got to defend them on the road, — in short, that
the hunt of arms, etc., was simply to protect a retreat out of
town to a place of safety. If this were true, how strange it is
they did not keep together, and when they were once out of
danger, why they did not stay out. They were all together in
front of Bagby's store, when the search for arms commenced,
and when the defendant passed north from Shafer's, in search
of Zachariah, Nicholas was on the same street, near the
Rallston House, in easy hailing distance, and at a quarter of
the town where it does not appear they were in any anticipa-
tion of danger, and the defendant and Zachariah either passed
him or went part of the way in his company as they returned
to Shafer's.
Ellis, the postmaster, says that at the time the defendant
came up to Zack and told him to go with him, that they had
business on hand, etc., he saw Nicholas standing on the side-
walk by the Rallston corner, and this, he says, was only
about forty steps away.
James Miller says Nicholas was in his hardware store just
before the shooting; and Casper Pectold says: "When Jim
and Zack went into Shafer's, Nick went on across the street
towards Metzger's."
Romine Smith says: " Saw James and Zack come back
from the postoffice; saw Nick with them when they were over
by Miller's."
320 Wilson v. The People. [Jan. T.
Opinion of the Court.
Charles Wright says: "When Jim came up and called
Zack, I saw Nick about 20 or 30 steps on the sidewalk behind
him, standing near the corner of the Kallston House."
It is quite evident that Nicholas understood what was going
to happen, and he passed on, leaving the defendant and Zach-
ariah at Shafer's, to take position himself at Metzger's, where,
in the language of the defendant, he could see "the fun,"
and, if necessary, lend a helping hand.
This subterfuge being disposed of, there is no purpose pre-
tended for Zachariah's going to Wade's with the shot-gun,
except to shoot McDonald.
The evidence quite clearly shows that, instead of McDonald
being acting on the aggressive on Monday, he was agitated
and alarmed, and was afraid to leave Wade's store. Thus,
Charles Cox, the clerk in the drug store, says: "McDonald
appeared very much excited after they (defendant and Allen)
left, and very uneasy; kept watching the door; went and sat
on a box by the front door five or ten minutes; then came in
and stayed there until the shooting; he kept watching the
front door and sometimes the back door."
Dr. W. D. Wade says, on cross-examination, after speaking
of the occurrence of McDonald driving the defendant and
Allen out of the drug store: "I went in the store with Mc-
Donald and had a conversation with him; told him he must go
away from my store; if he wanted to have any fuss, he musn't
fuss there; he did not go out of the store until they had all
left; after that he went and sat on a box in front of the store
a few minutes, and then went back into the store." * * *
Again, he said, on re-examination : "When I told McDonald
to leave my store, if he wanted to fuss, he replied : * I am
afraid to leave; they have got me surrounded; and I then
told him he could stay in the store if he was afraid to leave."
Daniel Michaels, railroad agent, says: " After dinner I
came up on the south side of the square; saw Thomas McDon-
ald sitting on a box by the side of Wade's store door. I noticed
that he was excited, and holding a revolver and knife. I said:
1880.] Wilson v. The People. 321
Opinion of the Court. '&
'Any trouble, Uncle Tom?' He replied: 'They are trying
to ran over me — to trample me down/ I asked: 'Who?'
He said : < The Wilsons/ "
Romine Smith, on re-examination, says: "I told him [i. e.
McDonald] that the Wilsons had threatened to kill him, and
that they had gone to get a gun, and that he had better hide
himself, or slip out. He said he couldn't get out. He then
said: ' I will stay here if I have to die here.'"
But, conceding Zachariah's guilt, the defendant insists the
evidence does not sufficiently connect him with it. On this
point, too, we think the evidence overwhelmingly against the
defendant. In the light of all the facts spread out before us
in this record, it would seem there could hardly be a rational
doubt that the defendant was at Plymouth on Monday, the
14th of August, 1876, for the express purpose of seeing his
brother Zachariah revenged upon McDonald. His story that
he was going to his father-in-law's, etc., we regard as of but
little moment. The facts, his actions and the actions of his
brothers, show that he was not going there. The proof does
not show that he and Zachariah Avere together on Saturday,
but it does show that he knew, on Saturday, that Zachariah
and McDonald had had a personal difficulty of some char-
acter, on that day, in which McDonald* was said to be the
assailant. It is not expressly shown that the defendant and
Zachariah had any communication in Plymouth before he and
his cousin Allen were driven out of Wade's store by McDon-
ald ; but the circumstances irresistibly show that such was the
fact, and that he knew when he went to Wade's that Zachariah
and Nicholas had gone to Rallston's harness shop to get a
rawhide with which to punish McDonald.
When Nicholas went to the hay-press and called Zachariah,
he said, "Jim wants you," and we are justified in assuming this
was true. We have before seen that Nicholas started to the
hay-press for Zachariah, soon after he discovered that McDon-
ald had come to town. Nicholas and Zachariah went from
the hay-press direct to Bagby's store. The evidence shows
21—94 III.
322 Wilson v. The People. [Jan. T.
Opinion of the Court.
that defendant was there about that time. Samuel Wade
says, as we have before observed, just after McDonald hitched
his horse and came across to Wade's store, "I saw James
Wilson up by Bagby's store. " It is but reasonable to sup-
pose, then, that defendant and Zachariah and Nicholas met
there. For what? The sequel shows,that just after that, Nich-
olas and Zachariah go to Rallston's to buy a raw-hide, and
Zachariah informs us that was for McDonald. At or very near
the same time, the defendant and Allen go to Wade's drug
store, a place where Dr. Wade, the proprietor, says they were
not iu the habit of going or trading, pass by the clerk, the
only man there in charge, without saying a word to him,
and walk straight towards McDonald, and by their manner
satisfy him, as we have a right to assume, that they mean
violence to him. The defendant says they were only going to
get something to drink. Then why eye McDonald and walk
straight towards him, instead of stopping and making their
business known to the clerk? There is no proof of such degree
of familiarity and intimacy between the defendant and Dr.
Wade as would have justified him in assuming that he might
go in there and take liquor at his pleasure, without speaking
to any one about it. When the defendant left the room at
McDonald's instance, he did not have to stop to inquire where
Zachariah was. He knew already, and ran directly to him in
the harness shop. Here, then, is evidence of association, and
of a common understanding, probably, that defendant and
Allen should seize and hold McDonald while Zachariah and
Nicholas entered and punished him with the cow-hide. This
was what was at that time intended, as we infer from Zach-
ariah's and Nicholas' declarations
But waiving this: after McDonald had brandished his pis-
tol and knife on the street before the defendant and his broth-
ers, and abused and threatened them, the defendant's own
declarations show that he was in search of a shot-gun, not, as
he subsequently pretended, with which to defend himself, but
with which to punish McDonald. He was writhing under
1880.] Wilson v. The People. 323
Opinion of the Court.
what he regarded as a grievous insult and he wanted revenge.
In addition to what has already been quoted, when he was in
Bagby's store hunting for a shot-gun, William Jackson says
he said : " He had been run out down there, and he be if
he would be run out."
George Barker says the defendant said, after directing
Zachariah to kill McDonald: "If there is a shot-gun in this
town I am going to get it. I won't allow any G — d d d
man to draw a revolver on me."
Romine Smith says, after McDonald had cursed the defend-
ant and his brothers on the street: "Jim turned and started
west, and said, 'I will go and get a shot-gun and kill him.'"
The evidence, which we have heretofore quoted, shows that
the defendant repeatedly said to Zachariah, "Shoot him, kill
him," etc. And this is not denied, though attempted to be
palliated by the defendant.
The naked facts of themselves that relate to the getting of
the shot-gun, loading it, etc., and its use by Zachariah, show,
incontestably, harmony and unity of design and action be-
tween Zachariah and the defendant. The defendant procured
the shot-gun, loaded it so that it would kill; then went and got
Zachariah, showed him where it was; went out on the side-
walk and stood, watching him go across the street to Wade's
with the gun in his hands, remarking, "Now, we will see
some fun." His location at Shafer's, and Nicholas' location at
Metzger's, would enable them to intercept all aid to McDon-
ald, and all interference with Zachariah that might approach
from the streets.
While the defendant was procuring and loading the gun, a
friend of his (one Yingling,) went to him and said, "Jim, you
had better keep out of that fuss." He replied : " G — d d
you, I don't want you to take any part against me. If you
don't let me alone I'll knock you down," — thus showing
that he was desperately enlisted in it. Afterwards, however,
upon Yingling saying that "I am talking to you for your
own good," he said: "I am out of it, and I am going to stay
324 Wilson v. The People. [Jan. T.
Opinion of the Court.
out of it." He had then procured and loaded the gun, — the
balance — the using of it— remained for Zachariah.
It would seem impossible to make stronger and more com-
plete proof of a conspiracy.
It is claimed, in argument, that the defendant and his
brothers had reason to apprehend personal danger, not only
from Thomas McDonald, but likewise from his brother,
Newt. McDonald, and McDonald's friends, (Romine Smith,
the Barkers, Wattes and Rallstons, and perhaps others) who,
it is alleged, were there and armed.
As has been already observed, there is no proof that any
of these persons, or any one else, uttered threats of violence
against the defendant and his brothers, or either of them, or
that they offered to inflict such violence, before the killing of
McDonald. Indeed, it is not pretended they made any eifort
to defend McDonald and save him from a violent death. The
proof shows no one making threats against these parties,
except Thomas McDonald, and that to have brought them
within danger of his executing them, they had to go to Wade's
where he was staying, — afraid to go away, lest he should be
attacked.
Whatever may have been the vices and faults of McDon-
ald, this record present no excuse for the taking of his life.
Where threats to take life are made, we have held, that
before a party may attack or inflict bodily harm upon the
person making the threats, there must be some overt act from
which an intention may be reasonably inferred to carry into
effect the threats, and the danger must be imminent. Cum-
mins v. Crawford, 88 111. 312. There is some evidence (upon
which, however, we place but little reliance, because of the
improbability of its truth from the other evidence in the
case) that, as Zachariah got in front of Wade's door, McDon-
ald cried out to him to halt. Concede this to be true and
that McDonald instantly attempted to kill Zachariah, — Zach-
ariah went there to kill him. He is in no situation to claim
that he is acting on the defensive. His act is dictated by
1880.] "Wilson v. The People. 325
Opinion of the Court.
malice and a desire for revenge; — his peril is courted that he
may have opportunity to gratify that malice and desire for
revenge. All the authorities concur that in such case his act
in killing is murder.
The defendant is clearly guilty, and any other verdict than
that of guilty, on this evidence, would have been making
a mockery and farce of justice.
Objection is urged that the court erred in admitting in evi-
dence the testimony of Dr. Wade, that " I told McDonald to
leave my store if he wanted a fuss. He replied, '1 am afraid
to leave; they have me surrounded/ I then told him to
stay in the store if he was afraid," etc. It is enough to say
of this evidence the record does not show that it was objected
to on the trial.
Another objection urged is, that the people asked Dr.
Wade, and he answered, this question: "Will you tell the
jury how you came to load your gun?" Answer: "I had
an intimation that Zack was coming there to shoot McDonald,
and I was loading my gun to protect my house." This, had
it been introduced as original testimony, would doubtless
have been objectionable. But the defendant drew out of the
witness, on cross-examination, that he was loading his shot-
gun when Zachariah approached McDonald, necessarily with
the view to raise some unfavorable inference against the wit-
ness, or some favorable inference in behalf of the defendant.
Under these circumstances, we think, there was no impropri-
ety in getting at the motive which controlled the act.
Objection is also urged, that Daniel Michaels said that
McDonald said to him what we have before herein quoted in
showing that McDonald was not acting on the aggressive.
The record likewise fails to show that this evidence was
objected to.
Objection is also urged against the like kind of evidence
testified to by Romine Smith, but the record here again fails
to show that it was objected to.
An objection is also urged that the court erred in allowing
326 Wilson v. The People. [Jan. T.
Opinion of the Court.
Smith to state what Nicholas Wilson said to him in regard to
the whipping of McDonald. To this, too, the record fails to
show any objection was urged on the trial.
We think, notwithstanding the question is not properly
before us, that inasmuch as the line of defence justified the
shooting of McDonald as in the necessary self-defence of
Zachariah, it was competent, in rebuttal of that theory, to
show that McDonald was not aggressive, but, on the contrary,
acting on the defensive, and hence that any of his declarations
explanatory of accompanying acts were admissible as a part
of the res gestae. The declarations of Nicholas were admissi-
ble because the evidence, in our opinion, shows that he was at
that time acting in concert with the defendant and Zachariah.
Objection is urged to declarations of Zachariah made on
Saturday, to the effect that he would kill McDonald, etc.
These declarations were inadmissible, and the ruling of the
court thereon was erroneous. The proof does not show that
a conspiracy existed, at that time, between the defendant and
Zachariah, but it is not such error as will in the preseut case
authorize a reversal. In the nature of things it did no harm.
The conspiracy did exist on the following Monday, and
Zachariah did then do, without any legal excuse or palliation,
what these threats showed he intended to do. Disregarding
these threats he is clearly guilty, — they do not make him
more guilty than he would otherwise appear to be.
Zachariah's declaration to Romine Smith was clearly ad-
missible, because the proof sufficiently shows that the con-
spiracy then existed. So, also, we think the declaration made
by one of the party in Colmar, on Monday morning, was
admissible, although that was drawn out on cross-examina-
tion, and of course was not objected to. The whole evidence
furnishes proof that the defendant and his brothers were then
making their way to Plymouth for a common purpose — having
the injury or punishment of McDonald in contemplation, and
the declaration of one was hence the declaration of all.
The evidence offered by the defendant and rejected by the
1880.] Wilson v. The People. 327
Opinion of the Court. f
court was properly rejected. There was no foundation for
the pretence that Zachariah was acting in self-defence, — and
the evidence offered and rejected was wholly inconsequential.
Objection is urged to the giving and refusing of instruc-
tions. Without saying there was not any error in that
regard, we are contented that, as a whole, the case was fairly
given to the jury. There may have been some slight tech-
nical errors in this respect, and also in the ruling of the court
in regard to the admitting and excluding of evidence, which
we have not noticed. None of these, in our opinion, are of such
gravity as to require a reversal of this judgment. We have
endeavored to give to the record itself, not merely the printed
abstracts and arguments, but the transcript made up by the
clerk, a patient and thorough investigation ; and we can come
to no other conclusion than that the d-efendant is rightly con-
victed,— under any correct ruling the verdict should have
been, and with an honest jury must have been, equally un-
favorable to the defendant. If any body has cause to com-
plain it is the people, not the defendant.
The State's attorney, we assume, without premeditation on his
part, but from impulse of the moment, was led into much intem-
perance of speech in his closing argument. This was entirely
unworthy of him as an officer of the law, and as a member
of an honorable profession. Had the attention of the pre-
siding judge been called to it at the time, he should have
been, and doubtless would have been checked and rebuked-
It does not appear that the judge's attention was called to this
language, and it can not, therefore, be said the court erred in
not checking him. In no event, however, should we regard
such an error as one that would authorize the reversal of a
judgment clearly right under the evidence.
Where the result reached by a judgment is clearly right, it
will never be reversed for errors which do not affect the sub-
stantial merits of the case. Calhoun v. O'Neal, 53 111. 354;
Leach v. The People, id. 311.
The judgment is affirmed.
Judgment affirmed.
328 Fisher v. Milmine et al. [Jan. T.
Opinion of the Court.
Robert Fisher
v.
George Milmine et al.
1. Mortgagk — mistake in name of one of firm. In ejectment the plaintiffs
offered in evidence a mortgage to George Milmine and Edwin C. Bodman to
secure a debt due to the firm of Milmine & Bodman, which was objected to,
and thereupon the plaintiffs proved that the mortgage was given to secure a
debt due to tbe firm consisting of the plaintiffs, and that the scrivener when
drawing the mortgage asked the mortgagor the given name of Bodman and
was understood to say it was Edwin C, and so the mortgage was drawn, his
true name being Edward C, and it was delivered to the agent of the firm,
and thereupon the court admitted the same in evidence: Held, that there
was no error in this ruling.
2. Same — when condition is broken. Where the condition of a mortgage,
given to secure several notes maturing at different times, provides that if the
mortgagor shall pay all said notes as the same shall become due, then the
mortgage shall become null and void, a failure to pay any note when it falls
due is a breach of the condition, and ejectment will lie upon the same by the
mortgagee.
3. Ejectment — outstanding title. A mortgagor, when sued in ejectment,
can not set up a prior mortgage by him to another as an outstanding title.
He is estopped to allege that such mortgage is of force against the plaintiff.
Appeal from the Circuit Court of Piatt county ; the Hon.
C. B. Smith, Judge, presiding.
Messrs. Reed & Barringer, for the appellant.
Messrs. Lodge & Huston, for the appellee.
Mr. Justice Dickey delivered the opinion of the Court:
This is ejectment, begun in August, 1874, by George Mil-
mine and Edward C. Bodman, against Pinkard, who was
tenant of Robert Fisher, the appellant. Afterwards Fisher
was admitted to defend instead of Pinkard.
Ou the trial, plaintiffs relied upon a mortgage executed by
Fisher, defendant, dated March 28, 1873, made to secure the
payment of four promissory notes of that date, for $1000 each,
1880.] Fisher v. Milmine et al. S29
Opinion of the Court. *
payable, respectively, in one, two, three and four years from
date, to " Milmine & Bodman," by which Fisher purported
to convey the property in question to George Milmine and
Edwin C. Bodman, styled Milmine & Bodman, upon condi-
tion, to be void on the full payment of the notes.
Defendant objected to the mortgage going in evidence;
when plaintiff proved that the mortgage was given to secure
a debt of Fisher to the firm of Milmine & Bodman, consisting
of plaintiffs; and that when the scrivener was about to draw
the mortgage, Fisher was asked for the given names of the
members of the firm, who were to be named as grantees, and
Fisher was understood by the scrivener to reply that Bod-
man's name was Edwin C. Bodman, and so the mortgage was
drawn, and, after execution, was put in the hands of the agent
of plaintiffs. Thereupon the mortgage was permitted to be
read in evidence.
This, appellant insists, was error. We think not. The
mortgage was delivered to plaintiffs. The grantees are said in
the mortgage to be -the persons styled " Milmine & Bod-
man,"— the proof shows that the persons composing that firm
were George Milmine and Edward C. Bodman, the plaintiffs.
The only inference which can arise is that the conveyance of
the land was to the plaintiffs, and invested them with the title,
although one of them is called by a wrong name in the mort-
gage. Board of Education v. Greenbaum, 39 111. 609 ; Pink-
ard v. Milmine et al. 76 id. 453.
It is also contended that the failure to pay the first note
was not such a breach of the condition as necessary to main-
tain the action. The condition is, " if said Charles Fisher
shall pay all said notes * * * as the same shall become
due, * * then these presents * * shall become null," etc.,
and it is insisted there can be no breach until all the notes
fall due. This is a misconstruction of the condition. The
mortgagor, to fulfil this condition, must pay each note as it
falls due.
The prior mortgage to McPherson, as between these parties,
330 Cullom, Governor v. Dolloff et al. [Jan. T.
Syllabus.
was not such an outstanding title as could defeat this action.
Ther.e is nothing in the record showing that the defendant
held under McPherson as his tenant. If this were otherwise
appellant was estopped to allege that the McPherson title was
of force as against plaintiifs.
The judgment must be affirmed.
Judgment affirmed.
Shelby M. Cullom, Governor,
v.
Samuel F. Dolloff et al
1. Fees and salaries — compensation of county officers. The constitution
has fixed the maximum compensation that can be allowed to county officers in
the counties of each class; and it provides that where the county board has
fixed this compensation, it shall neither be increased nor diminished during
the term of office, and that the General Assembly shall regulate the fees so as
to reduce them to a reasonable compensation for services actually rendered.
2. Two things are apparent from these constitutional provisions — first, that
a compensation shall be unalterably fixed for the official term of the officer;
and second, that the county board shall fix the clerk hire and expenses of the
office. But it was not intended that for clerk hire and expenses more should
be fixed than was necessary, but, on the contrary, it was intended to effectu-
ally prohibit anything from being paid beyond what was" actually necessary.
Under these provisions, a county board is powerless to bind the county to pay
more than what the clerk hire and expenses reasonably and necessarily cost.
But, in any event, the board should allow the officer to retain out of fees
collected a sufficient sum to pay a reasonable price for necessary clerk hire,
fuel, stationery, etc., actually paid or purchased, but no more.
3. Same — amount of fees county officer may retain for clerk hire, etc. A cir-
cuit clerk or other county officer can retain from the fees received by him only
the amount fixed for his compensation, and such other reasonable sums as he
has actually paid out for necessary clerk hire, stationery, fuel and other
expenses of the office, no matter at what sum the county board may have
allowed him for clerk hire, etc. The county board is prohibited, by both the
constitution and the statute, from allowing a county officer any sum for clerk
hire, stationery, fuel, etc., in excess of that actually paid for the same, and as
such excess is to pay for services not rendered, it indirectly increases his com-
pensation.
1880.] Cullom, Governor v. Dolloff et ah 331
Brief for the Appellant. 'e
4. Official bonds — whether sureties on old or new bond are liable. Where a
clerk of the circuit court was required by his sureties to give a new bond,
which was given and approved in March, 1875, and it appeared that moneys
came into his hands for fees since his last accounting to the county board on
December 1, 1875, and before the approval of the new bond, which it was his
duty to account for and pay into the county treasury on June 1, 1875, it was
held, that the sureties on his former bond were liable for its non-payment,
and that it was error to refuse evidence of the receipt of such money in a
suit on the old bond.
5. Same — right of action on bond of circuit clerk. In a suit upon the official
bond of a circuit clerk, for failing to pay into the county treasury fees col-
lected by him in excess of his compensation as fixed by the county board, and
the expenses of his office actually paid for clerk hire, fuel, stationery, etc.,
where the board had made repeated efforts to bring him to a settlement, and
finally, a few days before suit brought, ordered him to pay a sum into the
treasury, it was held, that the action would lie without a previous auditing
of his accounts, and notwithstanding the order made might have been for
the payment of more than the county was entitled to receive.
Appeal from the Appellate Court for the Third District ;
the Hon. Chauncey L. Higbee, presiding Justice, and Hon.
Oliver L. Davis and Hon. Lyman Lacey, Justices. On
appeal from the Circuit Court of McLean county; the Hon.
Cyrus Epler, Judge, presiding.
This was an action of debt, brought in the name of Shelby
M. Cullom, Governor of the State of Illinois, for the use of
McLean county, against Samuel F. Dolloff and others, his
sureties, upon the official bond of Dolloff as clerk of the cir-
cuit court of McLean county. It appears that, on the appli-
cation of the sureties, the clerk was required to give a new
bond, which was given on March 16, 1875. The other mate-
rial facts appear in the opinion of the court.
Messrs. Fifer & Phillips, and Messrs. Williams, Burr
& Capen, for the appellant:
This case involves a construction of section 10, article 10
of the constitution of the State. That section requires the
county board to fix the compensation of all county officers, with
the amount of their necessary clerk hire, stationery, fuel and
332 Cullom, Governor v. Dolloff et al [Jan. T.
Brief for the Appellant.
other expenses, and provides that the compensation of no offi-
cer shall be increased or diminished during his term of office;
and that all fees or allowances received by them in excess of
their said compensation shall be paid into the county treasury.
The compensation of the officer is what he gets for his ser-
vices, independent of the expenses of conducting the office, and
is to be paid out of the fees earned and collected by him, and
this compensation is to be fixed separate from the expenses,
and, when once fixed, can not be changed.
But the expenses of the office should at all times be under
the control of the board, and in no case exceed what is neces-
sary. If this construction is not correct, what limitation is
there in the constitution as to the amount that may be allowed
under the name of compensation and expenses?
If the word necessary is not a limitation on the amount to
be allowed for expenses, there is none at all; and a board
may increase or diminish the compensation of the officer, from
time to time, by increasing or diminishing his allowance for
expenses; and even if the amount so allowed was left at a
uniform sum, it would necessarily increase or diminish his
compensation, as the expenses must necessarily vary.
It can not be presumed that the words, necessary expenses,
can cover more than the sum actually expended; and the
county was clearly entitled to a judgment for the amount col-
lected over and above the salary and the sums paid out for
expenses.
That the constitution can not be frittered away in this way
and overreached by indirection, would seem to need the cita-
tion of no authorities, but we refer the court to the following:
Hall v. Hamilton, 74 111. 437; Hughes v. The People, 82 id.
78; Purcell v. Parks, id. 346; The People v. Lippincott, 67 id.
333.
In Kilgore v. The People, 76 111. 548, this question was not
before the court. The contest in that case was, could the
county treasurer be allowed compensation as treasurer and
collector both; and the court held that the treasurer was ex
1880.] Cullom, Governor v. Dolloff et at 333
Brief for the Appellees. Opinion of the Court. >
officio collector, and that his allowance as treasurer covered
his compensation for his whole duties.
Mr. W. S. Coy, and Messrs. Tipton & Pollock, for the
appellees :
Counsel submitted four propositions, with authorities in
their support :
1. The resolution of the board of supervisors of Septem-
ber 12, 1872, fixing the salary at $2500 and the necessary
clerk hire at $4000, was conclusive, and neither the salary
nor the clerk hire could be changed during the official term of
Dolloff. Art. 10, sec. 10, Constitution; Rev. Stat. 1874,
chap. 34, sec. 38; Kilgore v. The People, 76 111. 551 ; Hughes
et al. v. The People, 82 id. 80; Purcell v. Parks, id. 348.
2. Even if the board had the power to change the allow-
ance for necessary clerk hire, it was not changed so as to
affect the questions in controversy in this suit, either by the
resolution of June 15, 1874, or that of September 10, 1874.
3. The evidence' offered in regard to fees collected after
December 1, 1874, was properly excluded.
4. Even if there was money in the hands of Dolloff, be-
longing to the county, on the first day of December, 1874, he
was under no obligation, under the evidence in the case, to
pay the same into the county treasury, and the amount can
not be collected under this bond and in this case. The evi-
dence does not show that the board ever audited any of his
reports, or that it ever struck a balance after deducting any
salary or any unpaid salary'due to him, from the gross amount
received by him as clerk, and ordered him to pay the same
into the county treasury.
Mr. Chief Justice Walker delivered the opinion of the
Court :
Appellee, Dolloff, was elected to the office of clerk of the
circuit court of McLean county at the general election in
1872, for four years. He entered upon the duties of the
334 Cullom, Governor v. Dolloff et at. [Jan. T.
Opinion of the Court,.
office on the first day of December of that year, having
executed the bond required by the statute, and upon which
this suit was brought. It is conditioned that he shall faith-
fully perform the duties of the office and deliver up the
papers, etc., appertaining thereto when lawfully required.
Prior to the election, the board of supervisors, on the 12th
day of September, 1872, had fixed the compensation of the
circuit clerk at $2500 per annum, and also fixed the amount
of his necessary clerk hire at $4000 per year. It so remained
until the loth day of June, 1874, at which time the board
passed this resolution :
"Resolved, That from the first day of July, 1874, this board
will allow the circuit clerk only the necessary clerk hire of
his office in lieu of the $4000 per annum heretofore allowed."
And on the 10th day of the following September the board
passed another resolution, which is this: "Resolved, That
from and after December 1, 1874, the allowance for clerk
hire of the clerk of the circuit court shall in no case exceed
the amount actually paid for the same, as shown by his bills,
verified by his affidavit."
At the February term, 1875, of the circuit court of McLean
county, Dolloff was required to give a new official bond, and
on the 16th day of March following he executed a new bond,
which was then approved. A trial was had by the court, by
consent of the parties, without a jury. The court allowed
Dolloff $2500 for compensation per year for two years,
ending on the first of December, 1874, amounting to $5000,
and $4000 each year for clerk hire, amounting to $8000,
aggregating the sum of $13,000, and found that on that
day the county owed him $33.07. On the trial plaintiff
offered to prove that a large sum of money came into his
hands between the 1st day of December, 1874, and the 16th
day of March, 1875, as fees of the office, which belonged to
the county, but this evidence was rejected. This, then, pre-
sents two questions for consideration. First, was the clerk
entitled to the amount fixed by the board for clerk hire before
1880.] Cullom, Governor v. Dolloff et al. 335
Opinion of the Court.
his election? And second, was the rejected evidence admis-
sible?
By the 10th section, article 10 of the constitution, it is
provided that "The county board * * * shall fix the
compensation of all county officers, with the amount of their
necessary clerk hire, stationery, fuel and other expenses, and
in all cases where fees are provided for, said compensation
shall be paid only out of, and shall in no instance exceed, the
fees actually collected. " The latter clause provides " That
the compensation of no officer shall be increased or dimin-
ished during his term of office. All fees or allowances by
them received in excess of their said compensation shall be
paid into the county treasury."
The 11th section of the same article provides that "The
fees of township officers and of each class of county officers
shall be uniform in the class of counties to which they re-
spectively belong." The 12th section provides that "All
laws fixing the fees of State, county and township officers
shall terminate with the terms respectively of those who may
be in office at the meeting of the first General Assembly after
the adoption of this constitution; and the General Assembly
shall, by general law, uniform in its operation, provide for,
and regulate the fees of said officers and their successors, so
as to reduce the same to a reasonable compensation for
services actually rendered." The 13th section provides:
" Every person who is elected or appointed to any office in
this State, who shall be paid in whole or in part by fees, shall
be required by law to make a semi-annual report, under oath,
to some officer to be designated by law, of all his fees aud
emoluments." These seem to be the only constitutional pro-
visions having any bearing on this case.
The 13th section of the Fees and Salary act (Rev. Stat.
1874, p. 503) divides the counties into three classes, and
McLean county is placed in the second. And in pursuance
of the 10th section of the constitution the board fixed the
compensation of the clerk, and his clerk hire. It is con-
336 Cullom, Governor v. Dot.loff et al. [Jan. T.
Opinion of the Court.
tended that he is entitled to retain the sums thus fixed
annually from the fees of the office. On the other hand, it is
contended that the board had the power and legally exercised
it in changing the allowance for clerk hire. It is not claimed
that body had the power to change his compensation, nor
could that be done during his term of office, when fixed
within the constitutional limit. Then was the clerk bound,
after paying his salary and the amount actually expended for
clerk hire, fuel, stationery, etc., to pay the balance into the
county treasury, or could he retain his compensation and
$4000 a year for clerk hire, etc., without reference to the
amount actually paid therefor? It was admitted on the trial
that Dolloff did not pay out $1000 a year for clerk hire, but
that after deducting money paid for clerk hire, fuel, stationery
and other expenses, there remained in his hands on the 1st
day of December, 1874, from fees collected, $1253.58. But
if he is permitted to retain $4000 a year for clerk hire, theu
the county would owe him $33.07.
The constitution controls this question. It has fixed the
maximum of compensation that can be allowed in the counties
in each class. And it provides that when the board has fixed
*the compensation of the officer, it shall be neither in-
creased nor diminished during his term of office. It also
provides that the General Assembly shall regulate the fees so
as to reduce them to a reasonable compensation for services
actually rendered. Two things are apparent from these pro-
visions, first, that a compensation should be unalterably fixed
for the official term of the officer. And for clerk hire and
expenses no more should be paid than was necessary, but on
the contraiy, it was intended to effectually prohibit anything
from being paid beyond what was actually necessary. And
the county board was powerless to bind the county to pay
more than the clerk hire and expenses necessarily cost.
They could not evade, if they so desired, the constitutional
prohibition. They could not allow more than the reasonable
and necessary cost of these items. But in any event, the
1880.] Cullom; Governor v. Dolloff et al. 337
Opinion of the Court. *
board should allow a sufficient sum to pay a reasonable
price for necessary clerk hire, fuel, stationery, etc., actually
hired or purchased, but no more.
If permitted to retain what remains unexpended of the
$4000 per annum for necessary clerk hire and expenses
actually paid by him, it would be an evasion of the plain
meaning of the constitution. It would be paying what was
unnecessary for expenses, and not only so, but by indirection
giving the clerk compensation for services not rendered by
him, or any one else. The board fixed his compensation for
services actually rendered by him at f 2500 per year. And
the clerks he hired to perform the labor were paid for the
services actually rendered by them from fees received from
the office. The surplus, then, could not be paid, as there were
no actual services rendered on which it could apply. It
should go into the county treasury, both under the require-
ments of the constitution and the statute.
To allow the clerk to retain this money would, we think,
be a palpable violation of the constitution. It would be a
clear evasion of its requirements. It would be an indirection
that is not sanctioned in the administration of justice. The
order allowing $4000 a year was not within the constitutional
authority, and the order must be construed to conform to
these fundamental provisions, and we must hold that this
order fixing compensation and clerk hire, etc., only provides
that the clerk should retain of the fees received the amount
of his compensation and necessary clerk hire actually paid.
With this construction it is in harmony with the constitution.
To permit the board to fix the compensation nominally
within the constitutional limit, and then allow sums of money
for clerk hire, fuel, stationery, and other expenses to an
amount that can not be needed for such purposes, and to per-
mit the clerk to retain the balance, would be to defeat the very
purpose of this provision, which declares that such officers shall
have a reasonable compensation for services actually rendered.
It was designed, under this provision, to pay only for ser-
22—94 III.
338 Cullom, Governor v. Dolloff et al. [Jan. T.
Opinion of the Court.
vices actually rendered, and to prohibit all allowances for
pretended claims for services never rendered. If, in this case,
clerk hire and other expenses cost only §2000 a year, and the
order should be held valid, that would give this clerk as
compensation $4500 a year, when the constitution has pro-
vided that he shall not receive more than $3000 per annum.
Such action by the board could not be sustained. But the
board, as it had a right to do, fixed his compensation at $2500
a year. And to allow him to retain all over and above what
he necessarily paid out for clerk hire, would, in violation of
the constitution, be to indirectly increase that allowance of
compensation.
The case of Kilgore v. The People, 76 111. 548, is referred
to as having a bearing on this case. There, it was held that
when the board fixed the compensation of the county treasurer
at $700, he to furnish his own fuel, stationery and clerk hire,
it was valid and binding, and limited the amount he could
receive to that sum; that the compensation need not be stated
at one amount, and fuel, stationery and clerk hire at another.
The case of Hughes v. The People, 82 111. 78, is referred
to as holding that the amount of $2000 as compensation
and $2500 for clerk hire having been fixed, the sheriff was
entitled to that entire sum. The question here presented was
not raised in that case. There was no question as to whether
he had paid the $2500, or a less sum, for clerk hire. It was
not questioned, and it was taken for granted he had expended
the full amount, and it was said that he was entitled to both
sums, and he could claim no more as fees or compensation.
The controversy was as to a sum claimed by him for services
over and above the $4500 fixed by the county board as the
limit, and it was held he could claim nothing beyond the
sum thus fixed.
The case of Wheeloch v. The People, 84 111. 551, is referred
to as holding that the order fixing compensation does not
necessarily include clerk hire, fuel, stationery and other ex-
penses, unless, as in Kilgore' s case, it is so provided in the
1880.] Cullom, Governor v. Dolloff et al. 339
Opinion of the Court.
order by which it is fixed. That case so holds, and answers
any objection urged that the order in this case fixed an
amount beyond the constitutional limit, as it was under $3000.
It is urged that the court erred in excluding the evidence
that DolloiF had in his hands $625.42 belonging to the county,
after deducting his compensation, clerk hire, fuel, stationery
and expenses, which was received on fees after the first of
December, 1874, and before the 16th day of March, 1875.
Appellees contend that he was not, under the law, obliged to
account for this money until the first of June, 1875, and that
he could not be in default until that time, and that his sure-
ties on this bond are not liable for money thus received. He
received this money before the new bond was given, and under
the law and the conditions of the first bond it was his duty to
account for and pay over the money on the first day of June,
1875, and his sureties had bound themselves for the perform-
ance of all his duties, and this was unquestionably one of
them. And failing in its performance, they became liable for
moneys received under that bond and not paid over.
It is urged that his accounts should have been audited, and
an order made that he pay the money in his hands belonging
to the county into the county treasury. If the record of the
proceedings of the county board may be regarded, that body
made continued efforts to bring him to a settlement for a great
length of time; and they did, on the 5th day of March, 1877,
order him to pay $622.81 into the county treasury, which was
three days before this suit was commenced. Although this
order was for too large a sum, it certainly embraced what he
did owe the county, and was a sufficient warrant to pay what
he did owe. Had he paid the correct amount, the county
could not have recovered the money thus paid of him or his
sureties. But aside from this, it is agreed that if he has the
right to retain only the amount paid for clerk hire and ex-
penses, there is in his hands $1253.58, and in the stipulation
as to the facts no such question is raised.
340 Cullom, Governor v. Dolloff et al. [Jan. T.
Mr. Justice Dickey, dissenting.
We are of opinion that the court below erred in rejecting
this evidence, and for the errors indicated the judgment of
the Appellate Court is reversed and the cause remanded.
Judgment reversed.
Mr. Justice Dickey, dissenting:
The statute provides in such case that if a new bond be
given, * * * then the former sureties shall be entirely
released "from all liabilities incurred by any such officer in
consequence of business which may have come to hand" from
and after the approval of the new bond, and the sureties to
the new bond are to be liable for all " the official delinquencies
of such officer, whether of omission or commission, which may
occur " after the approval of the new bond, — but this shall
not operate to release the sureties of any such officers " for
liabilities incurred previous" to the filing of the new bond.
In so far as the foregoing opinion speaks of the competency
of proof of the amount of moneys received as fees, be-
tween December, 1874, and the time of giving the new bond,
I can not concur. Let it be assumed, that at the giving of the
new bond, this officer had in his hands some $600 of moneys
so received in excess of his salary and office expenses to that
time, he was not at that time liable to pay it over, nor was it
known, or could it be known, that he ever would be so liable.
He could only become liable to pay over the same in case his
salary and office expenses between that time and June, 1875,
should be so far paid by receipts of other fees that the $600
would not be required to pay them. His liability to pay had
not accrued, and did not exist when the new bond was given.
From future liabilities these old sureties were released. They
may have known that he had this money on hand, and, being
unwilling to stand as sureties for the future safe-keeping of
the money, may have taken these steps to close their surety-
ship by terminating his office. The new sureties step in and
defeat this by becoming sureties for his future fidelity. Hav-
ing done so the old sureties, I think, ought not be charged
1880.] The People ex rel. v. Brayton. 341
Syllabus.
with any future default. The proof offered could only tend
to prove the amount of the subsequent default, for which they
were not liable.
If this ruling be correct, and the sureties of a county
treasurer who has public moneys in his hands apprehend
danger as to its future safe-keeping, they can not relieve
themselves under this statute. The object of the statute was
to enable such sureties to terminate their suretyship by termi-
nating the term of the officer, unless new sureties were given
for future fidelity.
The default in this case in this regard could not occur be-
fore June, 1875. For such default I think the sureties on the
old bond are not liable, and that the new sureties are liable,
even though part of the money which he failed to account for
in June, 1875, came to his hands before the new bond was
given. Up to that date, as to this part of the case, the officer
had done his whole duty.
The People ex rel Franz Schack
v.
Hardin B. Brayton.
1. Consolidating towns in counties under township organization — can only be
done upon a vote of the people. The action of the board of commissioners of
Cook county — a county under township organization — on the 12th day of Jan-
uary, 1880, in attempting to unite the towns of North Chicago, West Chicago
and South Chicago into one town, by resolution of the board, without submit-
ting the question to a vote of the people, was without authority of law and
void.
2. Section 37 of chapter 139, Rev. Stat. 1874, entitled "Township Organi-
zation," expressly provides that county boards in counties which have adopted
township organization shall not have power to consolidate several towns into
one, except that, upon the petition to the board of one-fourth of the voters in
each of the towns proposed to be consolidated, the question shall be submitted
to the voters of said towns, and that a majority of voters in each town voting
shall have voted in favor of the proposition.
342 The People ex rel. v. Brayton. [Jan. T.
Syllabus.
3. The first section of the act of 1877, concerning the organization of
towns by county boards, does not operate to repeal section 37 of the Township
Organization Law of 1874, in regard to the requirement that the question of
uniting several towns into one shall be submitted to a vote of the people of
the several towns before any action in that regard can become operative.
4. The two sections mentioned relate to wholly different subjects. Section
37 of the law of 1874 relates to the subject of consolidating several organ-
ized towns into a single town. Section 1 of the act of 1877 has no relation
to that subject, but simply provides for the organization of a new town from
territory comprising a city containing a certain population, situated within
an organized town, without regard to the territorial extent of such new town.
The purpose of the act of 1877 was to confer a new power in that regard, not
theretofore existing, as the law of 1874 contained a restriction upon the
power to create new towns in requiring that they should embrace a certain
extent of territory. So there is no repugnancy between the two acts in
respect to the subject of uniting two or more towns into one, and they may
well stand together.
5. Attributing the purpose mentioned to the first section of the act of 1877,
it is not obnoxious to the constitutional objection that it permits the consoli-
dation of two or more towns into one without a vote of the people. And
under this construction of the first section, it being constitutional, it is un-
necessary in this case to consider whether the remaining sections of the act
are constitutional or not.
6. Act of 1879 — as to consolidating towns for park purposes — its constitution-
ality. The act of May 28, 1879, "concerning the continuance of towns for
park purposes," does not undertake to provide for the consolidation of several
towns into one, except "in the manner provided by law," which would be
referred to the existing law on that subject, which provides that such consoli-
dation can only be had upon a vote of the people, — so the act is not in viola-
tion of the constitutional requirement in that regard.
7. Repeal of statutes — by implication. A repeal of a statute by implica-
tion is not favored. To repeal a statute by implication, there must be such a
positive repugnancy between the old and the new that they can not stand
together or be consistently reconciled.
This was an application for a mandamus in this court by
the relator, Franz Schack, against Hardin B. Brayton.
Mr. Consider H. Willett, and Mr. James P. Koot, for
the relator.
Mr. Geo. W. Smith, for the respondent.
1880.] The People ex rel. v. Brayton. 343
Opinion of the Court *
Mr. Justice Craig delivered the opinion of the Court:
The question presented by this record involves the legality
of the action of the board of commissioners of Cook county had
on the 12th day of January, 1880, in which the board consoli-
dated the towns of South Chicago, West Chicago and North
Chicago by the adoption of a resolution, as follows: " Re-
solved, by the board of commissioners of Cook county, that
the three towns of South Chicago, West Chicago and North
Chicago be consolidated together and form one town, and
that the territory embraced within said three towns, being the
territory embraced within the city of Chicago, be organized
as a town, to be known as the Town of Chicago."
As appears from the record, the proceedings of the board
were had in pursuance of a resolution, adopted by the city
council of Chicago on the 8th day of February, 1878, as
follows :
"Resolved, That the county board of Cook county be and
is hereby requested to provide that the three town boards of
North Chicago, South Chicago and West Chicago be consoli-
dated or abolished (as being useless and expensive organiza-
tions), and that the territory embraced within the city be
organized into a single town, in accordance with the provi-
sions of section 1 of an act entitled 'An act to authorize
county boards in counties under township organization to
organize certain territory therein into a town/ approved May
23, 1877, in force July 1, 1877." Laws of 1877, page 202.
Prior to this action of the board of commissioners, and on
the 8th day of September, 1879, it appears from the record
that the board passed a resolution by which it submitted to the
voters of North Chicago the question to be voted upon at the
November election whether the town should be established and
continued as a park district; at the same tkne, by resolution
duly passed, the question was submitted to the voters of West
Chicago whether the town of West Chicago should be estab-
lished and continued as a park district, or town, for park pur-
344 The People ex rel v. Brayton. [Jan. T.
Opinion of the Court.
poses. It also appears that the election was held in each of
the towns and resulted in favor of the proposition submitted.
These elections were held, under and by virtue of an act
entitled " Continuance of towns for park purposes," in force
July 1, 1879. Laws of 1879, page 212.
Section 5 of article 10 of the constitution declares that the
General Assembly shall provide by general law for township
organization, nnder which any county may organize whenever
a majority of the legal voters of such county, voting at any
general election, shall so determine. The same section also
provides that when township organization shall have been
adopted by a vote of the people, it can only be abolished by
a like vote, in the same manner that it was adopted. The
section also declares that no two townships shall have the
same name, and the day of holding the annual township
meeting shall be uniform throughout the State. In pursuance
of this constitutional provision the legislature enacted chapter
139 of the Revised Statutes of 1874, entitled "Township
Organization." Under sec. 6, after township organization
has been adopted and commissioners appointed to divide the
county into towns, it is provided that the commissioners shall
proceed to divide such county into towns, making them con-
form to the townships according to the government survey,
which would make the towns six miles square.
Section 37 of the same act provides that the county board
of each county shall have full power and jurisdiction to unite
two contiguous towns into one, but no such towns shall be
united except in the following manner, that is to say : When-
ever one-fourth of the voters in each of the towns sought to
be united shall petition the county board to unite such towns,
said county board shall cause to be submitted to the voters of
said towns, at a general annual election to be holden in each
of such towns, the question of uniting. The section also
requires the ballots to be used to be " For uniting" or "Against
uniting." If, upon a canvass of the votes, a majority of
voters of each town voting at such election shall vote for
1880.] The People ex rel. v. Beayton. 345
Opinion of the Court.
uniting such towns, the county board shall proceed to declare
such towns united, give the united towns a name, and define
the boundaries thereof.
This provision of the statute requiring the question to be
submitted to the voters of the towns proposed to be united
was doubtless framed in view of the fact that one town might
be indebted, and if the county board had proceeded to unite
the two without a vote of the people to be affected, a debt
would be imposed upon a town without its consent, in viola-
tion of the organic law of the State. But aside from this
question, the section is eminently just in requiring the people
who are to be affected to give their assent before the board
can proceed to unite two towns into one. It is conceded that
the board of commissioners of Cook county did not submit
the question of uniting the three towns into one to a vote of
the people of the towns, as required by sec. 37. Unless,
therefore, this statute has been changed by subsequent legisla-
tion, the action of the board can not be sustained. It is,
however, contended that that section (37, supra) has been
changed by sec. 1 of an act entitled "Organization of towns
by county boards," in force July 1, 1877 (Laws of 1877, page
212), which provides that the county board in any county
under township organization may provide that the territory
embraced within any city in such county shall be organized
as a town, provided such territory shall have a population of
not less than 3000, and provided the city council in such city
shall, by resolution, request such action by the county board.
This act of 1877 does not profess to amend or repeal any
portion of chapter 139 of the statute relating to township
organization. Section 37 of the last named act must, there-
fore, be regarded as in full force unless the act of 1877 is so
repugnaut to it that the two can not stand together. A repeal
by implication is not favored. To repeal a statute by impli-
cation there must be such a positive repugnancy between the
provisions of the new law and the old that they can not stand
together or be consistently reconciled. Potter's Dwarris on
346 The People ex rel. v. Bkayton. [Jan. T.
Opinion of the Court.
Statutes, 155. Can it be said that there is such a repugnancy
between the two statutes that they can not be reconciled or
stand together? We do not so regard them. Upon a close
examination the two sections will be found to relate to
different subjects.
Section 37 provides the manner in which two towns may
be united, while section 1 of the act of 1877 authorizes the
county board to organize a town from territory composed of
a city when the city has a population of not less than 3000
inhabitants, but there is not a single word contained in the
section relating to the subject of uniting two or more organ-
ized towns into one, nor does the section contain a provision
in regard to the consolidation of two or more organized
towns, neither does it confer any power on the board to pro-
vide a name for a town. But, notwithstanding the section of
the statute is silent on these subjects, the board proceeded, by
resolution, to wipe out three organized towns, which had
originally been established by a vote of the people, and
known as North Chicago, "West Chicago and South Chicago,
and unite the territory embraced in these three towns
into one town, to be known as the town of Chicago. No
authority is needed to show that such extraordinary power
ought not and can not be exercised, unless the legislature has,
by clear and express language, conferred the authority upon
the county board. But the question arises, what was in-
tended by the passage of sec. 1 of the act of 1877?
The section, when closely examined in connection with the
various sections of chapter 139 of the Revised Statutes, will
be found to confer a new power on the board which had not
previously been delegated to that body. An examination of
the different sections of chapter 139 will demonstrate that
previous to the passage of the act of 1877 the county board
had no power to organize a town out of territory composed
of a city situated in an organized town.
Under section 20 of the chapter, supra, it is provided, that
where in any county under township organization there is any
1880.] The People ex rel. v. Bkayton. 347
Opinion of the Court. „
territory co-extensive with the limits of a city situated therein,
and which is not included within any organized town, such
territory shall constitute a town by the name of such city.
Under section 26 the board has full power to alter the boun-
daries of towns, to change town lines, and to divide, enlarge
and create new towns; but no town shall be created of less
territory than seventeen square miles. Were it not for the
requirement that a new town created should contain not less
than seventeen square miles, this section might be held broad
enough to confer the same power as does the first section of
the act of 1877, but the limitation imposed shows clearly that
it was not intended that such power should be given.
The only remaining sections of the chapter that relate to
the subject are sections 6 and 37, neither of which confers the
power that is conferred by the first section of the act of 1877.
We find, then, no provision of the Revised Statutes of 1874
which authorizes the county board to organize a town out of
the territory embraced within a city while that territory has
a population of not less than three thousand inhabitants, and
it was doubtless the purpose, and only purpose of the legisla-
ture, in enacting section 1 of the act of 1877, to provide for
a case of this character, — to supply a supposed omission in
the statute. In other words, where a town organized under
the township organization law contained within its limits a city
with a population of not less than three thousand inhabitants,
the county board was authorized to establish a town out of
the territory embraced within the city.
We do not suppose it was contemplated by the legislature to
change or repeal or modify, in the least, section 37, which pro-
vides the steps that shall be taken and the course that shall be
pursued before the county board can unite two towns into
one, because it is unreasonable to believe that the legislature
would have changed, modified or repealed that section with-
out in any manner alluding to it in the act of 1877. We
do not, therefore, regard section 1 of the act of 1877 so re-
pugnant to section 37 of the Township Organization act as to
348 The People ex rel. v. Brayton. [Jan. T.
Opinion of the Court.
authorize us to hold that the last named section was repealed
by implication by the former. It has been urged that the first
section of the act of 1877 is unconstitutional, but, if we are
correct in the construction we have given the section, it can
not be unconstitutional; but, if on the other hand it was con-
strued to mean to confer power on the county board to unite
two or more towns without submitting the question to a vote
of the people of the towns to be affected, a serious question
would arise in regard to the constitutionality of the act. If
the legislature can confer the power on the county board to
unite three towns into one without submitting the question to a
vote of the people of the towns, upon the same principle the
board might be authorized to unite six towns; and if the
legislature can authorize the union of six towns, then the
board may be authorized to unite all the towns in a county
into one, which would in effect abolish township organization
without a vote of the people, which, under the section of the
constitution, supra, can not be done.
It is insisted by counsel for respondent, that the other sec-
tions of the act of 1877 are unconstitutional. If it be true
that the other sections of the act are unconstitutional, that
does not affect the first section ; but if the construction we
have placed upon the first section of the act be the correct
one, it will not be necessary to inquire into the validity of
the remaining sections. Had the proceedings of the board
under the first section been sustained, then it would have be-
come important to inquire into the validity of the other sec-
tions.
The validity of an act, approved May 28, 1879, entitled an
act for the " continuance of towns for park purposes," (Laws
1879, page 212,) under which a vote was had in two of the
towns on the question whether the towns should be continued
as a park district for park purposes, has been called in ques-
tion. There is nothing in this act which confers any power
on the county board to create a new town, or unite two
towns into one. The only portion of the act which relates in
1880.] Haywaed v. Meeeill. 349
Syllabus. +
the least to the subject, is the last part of section two, which
reads as follows: "If such park district is established, or
town continued for park purposes as aforesaid, then the county
board may proceed to consolidate said town with another
town or towns, or change the boundaries thereof in the
manner provided by law." It is manifest that this act does
not profess to prescribe the manner in which the board shall
proceed, but in this regard its action must conform to the ex-
isting law on the subject; and as we have heretofore stated the
statute which governs the subject is section 37 of the town-
ship organization law, the board was bound to follow the
requirements of that section.
Our conclusion then is, that the action of the board, in
uniting the towns without first having submitted the question
to a vote of the people of the towns, is illegal.
The mandamus will be refused.
Mandamus refused.
Mr. Justice Dickey dissenting.
John A. Haywaed
v.
John A. Mereill.
1. Appeal from Appellate Court — whether the finding upon the facts shall
be reviewed. In an action on the case to recover damages for an injury result-
ing from the alleged negligence of the defendant, the question of contributory
and comparative negligence arose upon the evidence, and a judgment in favor
of the plaintiff in the trial court, was affirmed on appeal to the Appellate
Court, and it was held, on appeal from the Appellate Court to this court, that
the affirmance by the Appellate Court of the judgment of the trial court
amounted to a finding of the facts upon the question of negligence in favor
of the plaintiff, and, so far as that question was a question of fact, such find-
ing was conclusive upon this court.
2. Same — as to excessive damages. In such case, however, this court did
inquire and determine whether the damages assessed by the jury were ex-
cessive.
350 Hayward v. Merrill. [Jan. T.
Syllabus.
3. Excessive damages — for personal injuries from negligence of another. A
guest at a hotel, while proceeding to his room, by mistake opened a door near
the door of his own room, which led into an "elevator" opening, and in
attempting to step into what he supposed was his room, he fell into the "ele-
vator" opening, down to the* basement of the building, receiving very severe
and permanent injuries, which disabled him from pursuing his usual avoca-
tion. The accident was the result of negligence on the part of the hotel
keeper in not having the opening properly guarded. A verdict in favor of
the plaintiff for $2000 was considered not excessive.
4. Instruction — omission to state the rule of comparative negligence. In an
action to recover upon the alleged negligence of the defendant, the question
of contributory and comparative negligence was presented on the proofs. In
a series of instructions for the plaintiff, the first laid down the rule on that
subject fully and accurately, — the second merely denned negligence, without
reference to the rule as to comparative negligence. It was held, the second
instruction merely laid down an abstract principle of law, and it was not
essential it should repeat the rule concerning comparative negligence, which
was fully given in the preceding instruction.
5. Negligence — duty of inn keepers to protect their guests from harm. A
guest at a hotel was assigned a room which he had occupied on a former occa-
sion, and, supposing he could find it without difficulty, declined the services
of a bell-boy proffered him to show the way. In going to his room the guest,
by mistake, opened a door which was very near to the door of his room, but
led into an "elevator" opening. It was in the night time, and the hall only
dimly lighted. The guest, not discovering his mistake, stepped into the door-
way and fell' to the basement of the building, receiving serious injuries.
There was no guard or protection against accident in case of such a mistake;
and an employee of the house had previously been injured by a similar acci-
dent at the same place. This was known to the landlord, and no steps taken
to prevent a recurrence of the accident. It was held to have been the duty
of the hotel keeper, in the exercise of ordinary care for the safety of his
guests, which the law required of him, to secure the opening in such way as
not to endanger persons under like circumstances, and the omission of such
duty was gross negligence.
Appeal from the Appellate Court for the Third District;
the Hon. Chauncey L. Higbee, presiding Justice, and Hon.
Oliver L. Davis and Hon. Lyman Lacey, Justices. On
an appeal from the Circuit Court of Christian county; the
Hon. W. R. Welch, Judge, presiding.
1880.] Hayward v. Merrill. 351
Brief for the Appellant.
Mr. Anthony Thornton, for the appellant:
1. In ordinary trials, and in the absence of proof of malice
or wilful misconduct, the rule of law is, that damages are to be
awarded as a compensation for the injury received. They
should be precisely commensurate with the injury, neither
m.ore nor less, and this whether it is to the person of the
plaintiff or his estate. Greenlf. Evi. sec. 253.
Juries may give exemplary or punitive damages in cases of
wilful negligence or malice, but it is requisite such a case
should be made. Peoria Bridge Association v. Loomis, 20 111.
251 ; Chicago and Rock Island Railroad Co. v. McKean, 40
id. 235.
The testimony in this case wholly fails to disclose any malice
or wilfulness. Wilful, means " willing, done or suffered by
design." The verdict was for $2000. No bones were broken,
and no serious injury, apparent to the eye of the surgeon, was
inflicted.
2. The court erred in the instructions. The second was
calculated to mislead, in informing the jury that negligence
may consist of nonfeasance, and in making no reference to
the due caution of the plaintiff, an averment in the declara-
tion, and material to be proved. The proof shows negligence
amounting to recklessness on the part of the plaintiff. Under
such circumstances, it is not the law that "unintentional mis-
chief" is sufficient to create a liability. In such case the acts
of the party sought to be charged must be " wilful, wanton
or so gross as to amount to recklessness." Toledo, Wabash
and Western Railway Co. v. McGinnis, 71 111. 347.
It is no answer that other instructions in the series may
have corrected the error. Chicago, Burlington and Quincy
Railroad Co. v. Payne, 49 111. 499; Chicago, Burlington and
Quincy Railroad Co. v. Lee, 60 id. 502 ; Illinois Central Rail-
road Co. v. Maffit, 67 id. 431 ; Chicago, Burlington and Quincy
Railroad Co. v. Harwood, 80 id. 91.
The court has no right to specify the particular act which
might constitute ordinary care, as in the fourth of plaintiff's
352 Hayward v. Merrill. [Jan. T.
Brief for the Appellant.
instructions. The court only has the right to instruct the
jury that the defendant must use ordinary care, but the par-
ticular acts which constitute such care must be determined
alone by the jury. Schmidt v. Chicago and Northwestern Hail-
road Co. 83 111. 408; City of Freeport v. Isbell, id. 443.
3. The having the "elevator hole" was not per se negli-
gence. Trap-doors, hoistways and similar openings in floors
are a useful and necessary part of the machinery of business,
etc., and the mere fact of their existence and use is no evi-
dence of negligence. Sherman on Neg. sec. 508.
Negligence is the omission of the means reasonably neces-
sary, not absolutely necessary, to avoid injury to others.
Chicago, Burlington and Quincy Railroad Co. v. Stumps, 55
111. 374.
The defendant was not required to foresee and provide for
every possible danger. City of Chicago v. Bixby, 84 111. 85;
Murray v. McLean, 57 id. 382.
4. When both parties are equally in the position of right,
the plaintiff, to recover, must show that the injury was pro-
duced by the negligence of the defendant, and that the plain-
tiff exercised ordinary care to avoid the injury. Aurora
Branch Railroad Co. v. Grimes, 13 111. 587.
Where the injured party has acted with a slight degree of
negligence contributing to the injury, to recover he must show
that the other party has been guilty of gross negligence. Chi-
cago, Burlington and Quincy Railroad Co. v. Denny, 26 111.
258; Chicago and Alton Railroad Go. v. Gretzner, 46 id. 82;
Illinois Central Railroad Co. v. Benton, 69 id. 179.
If one party be guilty of contributory negligence, the other
party must be guilty of gross negligence amounting to wilful
injury. St. Louis, Alton and Terre Haute Railroad Co. v.
Todd, 36 111. 414; City of Chicago v. Smith, 48 id. 109; Wil-
kinson v. Fairrie, 2 Am. L. R. (N. S.) 242; Chicago, Burling-
ton and Quincy Railroad Co. v. Lee, 68 111. 580; Toledo,
Wabash and Western Railway Co. v. McGinnis, 71 id. 348;
Chicago and Northwestern Railroad Co. v. Cass, 73 id. 397.
1880.] Hayward v. Merrill. 353
Brief for the Appellee.
Mr. S. W. Moulton, and Mr. J. W. Kitchell, for the
appellee:
1. The damages are not excessive, but are less than the
evidence would have warranted.
The court will not disturb a verdict unless it is apparent at
first blush that the damages are glaringly excessive. McNa-
mara v. King, 2 Gilm. 432; Northern Line Packet Co. v. Bin-
ninger, 70 111. 580; City of Peru v. French, 55 id. 317.
As to whether the damages were excessive, counsel cited
Chicago and Alton Railroad Co. v. Murray, 71 111. 601; City
of Chicago v. Elzman, id. 131 ; City of Ottawa v. Sweely, 65 id.
434; Chicago and Alton Railroad Co. v. Gregor, 58 id. 226;
Pittsburg, Cincinnati and St. Louis Railroad Co v. Thompson,
56 id. 138 ; Chicago and Alton Railroad Co. v. Pondrum, 51
id. 333; Illinois Central Railroad Co. v. Evert, 74 id. 399.
2. Counsel argued, from the facts, which they reviewed,
that the plaintiff was not guilty of negligence in his falling
through the hoistway, knowing nothing of the locality of the
room in which it was, and contended that the defendant was
guilty of gross negligence in leaving the door to the room
unfastened and unlighted.
3. It is the duty of an inn keeper to see that guests and
their property are properly and safely cared for, and that
neither shall be exposed to danger; and where an injury is
sustained to either, the burden of. proof is upon him to show
the injury or loss was without his fault. Metcalfv. Hess, 14
111. 129; Johnson v. Richardson et al. 17 id. 302.
As to the duty of the occupier of premises to protect guests
and customers rightfully upon the same, counsel cited Bigelow's
Cases on the law of Torts, 704-706 ; Ellicott v. Pray, 10
Allen, 378; Carleton v. Franconia Iron Co. 99 Mass. 216;
Wendall v. Baxter, 12 Gray, 494; Buckingham et al v. Fisher,
70 111.125.
Negligence is a question of fact for the jury. Schmidt v.
Chicago and Northwestern Railroad Co. 83 111. 405.
23—94 III.
354 Hayward v. Merrill. [Jan. T.
Opinion of the Court.
The rule of comparative negligence is well established in
this State, and where there has been negligence of both
parties still the plaintiff may recover when his is slight and
that of the defendant gross in comparison. Chicago, Bur-
lington and Quincy Railroad Co. v. Van Patten, 64 111. 510;
Chicago and Northwestern Railroad Co. v. Sweeney, 52 111. 325.
It was not necessary to show wilful injury on the part of
the defendant, or that his negligence was wilful.
Mr. Justice Scott delivered the opinion of the Court:
This action was brought by John A. Merrill against John
A. Howard, to recover for personal injuries. Plaintiff was
a guest at a hotel kept by defendant. Adjoining the room
assigned to plaintiff, and on the same side of the hall, was a
door nearly or exactly like the room door, and only two and
one-half feet distant, that opened to an " elevator" opening
from the second floor to the cellar of the hotel building. Gas
was burning in the hall on the same floor where the room
plaintiff was to occupy was situated, but not very brightly.
The rooms on either side of the hall were numbered with
white figures about one inch in length, and could no doubt
be read by the light in the hall by any one intent on observing
them. The room plaintiff was to occupy was numbered on
the door "38," and the door to the elevator opening was
numbered, in the same way, "40." The doors had the same
trimmings, — the knobs on them being exactly alike. Both
doors had locks and keys, but neither of them seems to have
been locked on the night of the accident to plaintiff. The
door to the "elevator" opening was hung on the outside of
the jams and even with the surface of the hall, and opened
out into the hall, while the door to the bed-room set in the
usual distance and opened into it. Room "38" was the last
one on the left-hand side of the hall, being a corner room.
Two sides of the "elevator" opening were inclosed by plas-
tered walls of this room.
1880.] Hayward v. Merrill. 355
Opinion of the Court.
Having recently been a guest at the house, and having
occupied room " 38," which was now assigned him, plaintiff
believed he knew the location of the room, and could readily
find it without the assistance of the bell-boy that had been
directed, by the clerk in the office, to show him to his room.
After discharging the bell-boy, he proceeded as he supposed
to room "38," being the last room on the left side of the
hall, but by mistake opened door numbered "40," and, on
stepping in to light a match, he fell to the basement through
the "elevator" opening, sustaining very severe injuries.
On the trial in the circuit court plaintiff recovered a judg-
ment for $2000. That judgment, on defendant's appeal, was
affirmed in the Appellate Court, and defendant brings the
case to this court on appeal.
One ground insisted upon for the reversal of the present
judgment is that plaintiff was guilty of contributory negli-
gence; and, as it is said defendant was not guilty of gross
negligence in regard to that which caused the injury to
plaintiff, it is contended with great confidence the findings in
the courts below were not warranted by the evidence. The
argument made on these questions might with great propriety
have been made in the courts whence this case comes. The
same questions were no doubt made before the jury, and the
finding was against defendant. That finding was afterwards,
on defendant's appeal, affirmed in the Appellate Court, where
it was the duty of the court to review the evidence as to the
negligence of the parties. But no such duty devolves on this
court. Only questions of law are reviewable in this court in
such cases. The finding of the facts by the Appellate Court
is by the statute made conclusive upon this court. The jury
must have found from the evidence before them that defend-
ant was guilty of such negligence, and that plaintiff observed
such care for his personal safety, as would authorize a recovery.
That finding was affirmed by the Appellate Court. The
affirmance of the judgment implies as much.
356 Hayward v. Merrill. [Jan. T.
Opinion of the Court.
It is now insisted this court shall pronounce that the
evidence in the record is no sufficient warrant for the action
of the lower courts. This we have no rightful authority to
do. So far as the questions made are questions of fact, or so
far as they depend on facts, this court is conclusively bound
by the finding of the Appellate Court as to them. It may,
therefore, be assumed that plaintiff has established a right of
recovery, and the most important question presented for our
consideration is whether the damages found are excessive.
Conceding, as we must do, that on the facts found plaintiff is
entitled to a recovery, we can not say the damages assessed
are so disproportionate to the injuries sustained that the
judgment, for that reason alone, should be reversed. All
the testimony shows the injuries were not only severe, in-
ducing great suffering, but were and are of a permanent
character. It was proven he was incapacitated to pursue his
usual avocation, and in consequence of which he lost his
situation where he was receiving good wages.
It is conceded the second instruction, to which objection is
taken, states correctly an abstract principle of law. It is
said it contains no reference to the duty devolving on plain-
tiff" to observe due care for his personal safety. That principle
was fully declared in the preceding instruction, and it was
not necessary to repeat it in this one. The principle an-
nounced was applicable to the facts, and it was entirely proper
the court should give it. Nor do we perceive the force of the
criticism made on the fourth instruction of the series given
for plaintiff. It states the well understood principle that
aiiy one keeping a hotel must use ordinary care to prevent
accidents to persons who may be guests at his house, and then
it is added, if the "elevator opening" was-dangerous to guests
unacquainted with its location, it was the duty of defendant
to take ordinary care by suitable protections to insure the
safety of guests at the hotel. That is the law as applicable
to the facts of this case as it conies before us. That which
caused the injury to plaintiff was a dangerous opening, and
1880.] Schroder v. Crawford. 357
Syllabus. *
if we accept as proven that which the testimony tends to estab-
lish, it was certainly not sufficiently protected. It was known
to defendant to be dangerous, for one of the employees of the
hotel had fallen there, and been injured in the same way, and
the conclusion is fully warranted that the omission to better
secure it was gross carelessness. Conceding that plaintiff was
guilty of a want of some degree of care, still it was slight in
comparison with the negligence of defendant, which we are,
on authority from the findings of the lower courts, to believe
was gross, in permitting the continued existence of such an
opening in his house after it was known to him to be danger-
ous both to employees and guests.
The proprietor of a hotel to which he invites the public to
come, that he may make gains thereby, has no right to permit
the existence of such an opening as this one was, unless suit-
ably guarded, that the slightest mistake on the part of the
guest might not prove fatal. Had plaintiff been intent on
observing the number on the room door he might have dis-
covered the room he wished to enter, but by the merest
accident he opened the next door, and this slight inattention
was the cause of his severe injuries. The opening ought to
have been better protected than it was, and the omission to do
so, under the circumstances proven, may well be attributed to
defendant as gross negligence.
The judgment will be affirmed.
Judgment affirmed.
Hermann Schroder
v.
Virginia F. Crawford.
1. Intoxicating liquors — liability for injuries resulting from sale of intoxica-
ting liquors. Where an intoxicated person in going to his home in the night
has to cross a railroad, and next, morning is found on the track, killed by
being run over by a train of cars, the intoxication will be held the proximate
358 Schroder v. Crawford. [Jan. T.
Opinion of the Court.
cause of his death, and the party furnishing him the liquor, and the owner of
the premises where the liquor is furnished to him, will be liable to his widow,
under the statute, for injury to her means of support.
2. Same — statute must have practical construction. It is not the intention of
the statute that the intoxicating liquor alone, exclusive of any other agency,
shall do the whole injury for which a civil remedy is given. The statute was
designed for a practical end and to give a substantial remedy, and should not
be so construed as to defeat the purpose designed.
3. Pleading and evidence — when averment need not be proved. Where a
declaration in a suit by a widow to recover damages for the death of her hus-
band by the sale of intoxicating liquor to him, alleged that he was killed by
a train of cars in consequence of his intoxication, without any fault on the
part of the railway company, it was held that in the absence of proof of
fault on the part of the company it would be presumed there was none, and
that the allegation not being material, was not necessary to be proved.
Appeal from the Appellate Court for the Third District;
the Hon. Chauncey L. Higbee, presiding Justice, and the
Hon. Lyman Lacey and Hon. Oliver L. Davis, Justices.
Messrs. Osborn & Lillard, and Mr. J. H. Rowell, for
the appellant.
Messrs. Karr & Karr, and Mr. Newton B. Reed, for
the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
On the night of May 6, 1876, James T. Crawford was
killed by a train of cars on the track of the Chicago and
Alton Railroad Company, between the city of Bloomington
and the town of Normal, in this State.
Virginia F. Crawford, his widow, brought this action under
the Dram Shop act, to recover damages for injury to her means
of support from such death, the declaration alleging it to
have been caused in consequence of the intoxication of de-
cedent, and the action being against certain keepers of dram
shops in Bloomington as having furnished the liquor which
caused the intoxication, and the owners of the buildings in
1880.] Schroder v. Crawford. 359
Opinion of the Court. *
which the liquors were sold, the statute giving the action
severally or jointly against such persons.
The suit during its pendency having been dismissed as to all
the defendants except Schroder, the owner of one of the build-
ings, and Dwyer, the keeper of one' other of the dram shops,
a verdict and judgment were rendered against Schroder and
Dwyer for $2500, and Schroder took an appeal to the Appel-
late Court for the Third District, where the judgment was
affirmed, and from that judgment of the Appellate Court
Schroder appealed to this court.
On this appeal from the Appellate Court, where only ques-
tions of law are re-examined, there are but two of the
assignments of error, as we regard, to be considered, — one,
that the damages are too remote, the other, respecting in-
structions.
The facts appearing are that Sullivan kept a drinking
saloon in the building owned by Schroder; that decedent on
the day of his death was at Sullivan's saloon in the forenoon
from about nine to twelve o'clock; that he procured intoxi-
cating liquor and was intoxicated there, and was there again
at two or three o'clock in the afternoon ; that from about
twelve to three or four o'clock in the afternoon, with the
above exception, he was at Dwyer's saloon, where he obtained
intoxicating liquor and was intoxicated when there; that he
was seen at another saloon as late as five o'clock, and was
still intoxicated; that at ten o'clock at night he was seen
intoxicated, and it was raining; that no more was seen of
him, and nothing was known of the circumstances of his
death, more than that about five o'clock the next morning his
dead body was found upon the railroad track crushed and
mangled, evidently having been run over by a passing train
of cars. To reach his home from Bloomington, two railroad
tracks had to be crossed.
It is contended on the part of appellant that the proximate
cause of decedent's death was the train of cars; that if his
intoxication at the time contributed to his death, it was a
360 Schroder v. Crawford. [Jan. T.
Ooinion of the Court.
remote cause, in respect of which there is no liability, and
Shugart v. Egan, 83 111. 56, is cited as sustaining this view.
It was there held, where an intoxicated person had been
assaulted and killed by a third party, that the seller of the
intoxicating liquor was not liable in damages to the widow
for the death. It was there said to be the common experi-
ence of mankind that the condition of one intoxicated invited
protection against violence rather than attack, and that it
was not a natural and probable result of intoxication that the
person intoxicated should come to his death by the willful,
criminal act of a third party. The present case is quite dif-
ferent. The death was not caused by the direct, willful and
criminal act of a third party. It can not be affirmed that it
was not a natural and reasonable consequence of the intoxica-
tion that the person intoxicated, with two railroad tracks lying
between him and his home, should in a dark night meet with
injury or death upon a railroad track, from a running engine
or train of cars — that it was not such a consequence as in the
ordinary course of things might result. Instances of the very
occurrence have come before this court. Emory v. Addis, 71
111. 273, was a like action with the present, where the death
of the intoxicated person was caused by his being run over
on a railroad track by a passing train, in the same manner
as here, and a recovery of judgment by the plaintiff was
sustained. The intoxication was held to be the proximate
cause of the death.
The action is not a common law action, depending for its
maintenance upon common law principles, but it is a statutory
remedy and lies as given by the statute. The statute giving
the action is very broad in its terms, declaring that "Every
husband, wife, etc., who shall be injured in person or property
or means of support by any intoxicated person, or in conse-
quence of the intoxication, habitual or otherwise, of any person/'
shall have the right of action. If a person, because of being
intoxicated, lies down upon, or falls on a railroad track and
is unavoidably run over and killed by a passing train of cars,
1880.] Schroder v. Crawford. 361
Opinion of the Court. *
the result is in consequence of the intoxication. It is said
there was here an intervening agency which caused the death,
to-wit: the train of cars; that that was the proximate cause,
and the intoxication but the remote cause, and that the proxi-
mate cause only is to be looked to. So it might be said where
one from intoxication lies down and becomes frozen to death,
or falls into the fire and is burned to death, or is drowned by
a freshet, as in Hackett v. Smelsley, 77 111. 109, that the inter-
vening agency of frost, lire and the freshet occasioned the
death and was the proximate cause, and thus no liability
under this statute. This would be construing away the
statute in defeat of its purpose.
It was not the intention that the intoxicating liquor alone,
of itself, exclusive of other agency, should do the whole in-
jury. That would fall quite short of the measure of remedy
intended to be given. The statute was designed for a practi-
cal end, to give a substantial remedy, and should be allowed
to have effect according to its natural and obvious meaning.
Any fair reading of the enactment must be that in the in-
stances above, as well as the present, the death would have
been in consequence of the intoxication within the undoubted
intendment of the statute.
We perceive no error in respect of instructions. The chief
complaint is the refusal to charge that the jury should find
for the defendants if the death of the decedent was produced
by the carelessness of the railroad company, or if there was a
failure of proof that it was not produced by the fault of the
railroad company.
Without admitting that negligence on the part of the rail-
road company would bar a recovery, it is sufficient to say that
there was no proof whatever as to any negligence of the com-
pany, and so no evidence upon which to base an instruction
in that respect.
It is supposed that, as the declaration alleges that the
death was produced without any fault on the part of the rail-
road company, it was necessary to prove the averment. But if
362 Eeece et al. v. Smith. [Jan. T.
Opinion of the Court.
no fault of the company was shown, it might be presumed
there was none. The allegation, too, was not material, and
so unnecessary to be proved. The ninth refused instruction
asked by the defendant was substantially the same as the
appellant's fifth refused instruction in Roth v. Eppy, 80 111.
288, which the court there held to have been properly re-
fused.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed,
Mr. Chief Justice Walker : I am unable to concur in
holding the owner of the property liable in this case.
Jasper N. Eeece et al.
v.
J. Taylor Smith.
General demurrer to declaration — one good count. A general demurrer to
a declaration containing several counts can not be sustained if there be one
good count, however many bad counts the declaration may contain.
Appeal from the Appellate Court for the Third District.
Mr. George A. Sanders, for the appellants.
Messrs. Stuart, Edwards & Brown, for the appellee.
Mr. Justice Scholfield delivered the opinion of the Court:
This is an action of assumpsit by appellee against appel-
lants. The declaration contains three counts. The first
count is on what is therein designated and described as a
promissory note. The second count is the consolidated money
counts; and the third count is upon an account stated.
Appellants demurred generally to the declaration. The
circuit court overruled the demurrer, and appellants, electing
to stand by their demurrer and refusing to plead over, judg-
1880.] Eeece et al. v. Smith. 363
Opinion of the Court.
merit was thereupon given in favor of appellee. From that
judgment appellants took the case, by appeal, to the Appellate
Court of the Third District, where the judgment of the cir-
cuit court was affirmed. The amount of the judgment being
over $1000, the case is brought to this court by appeal.
The only question is, was the demurrer to the declaration
properly overruled?
Waiving the question as to the sufficiency of the first or
special count, no objection has been pointed out, and we are
aware of no objection that can be taken to the second and
third counts. We assume, therefore, that those counts are
sufficient.
No doctrine has been longer settled or more constantly
adhered to by this court than that a general demurrer can
not be sustained to a declaration which contains one good
count, however many bad counts it may contain. Lush v.
Cook, Breese (Beecher's ed.) 84; Cowles et al. v. Litchfield, 2
Scam. 356 ; Israel v. Reynolds et al. 11 111. 218; Governor,
etc. v. Ridgway et al. 12 id. 14; Anderson et al. v. Richards
et al. 22 id. 217: Tomlin v. Tonica and Petersburg Railroad
Co. 23 id. 429; Barber v. Whitney et al. 29 id. 439; Nickerson
et al. v. Sheldon, 33 id. 372.
There is no bill of exceptions showing what evidence was
heard upon the assessment of damages, so no question can
thereupon be raised in this court. Motsinger v. Coleman, 16
111. 71.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
364 Walker v. City of Springfield. [Jan. T.
Syllabus.
Edwin S. Walker
v.
The City of Springfield.
1. Municipal corporation — poiver to charge license fee on foreign insurance
companies transacting business in city. Where a city by its charter is specially
authorized to regulate agencies of all insurance companies, and to license
and regulate agents of all such insurance companies doing business within
the city, an ordinance of such city that all corporations, companies or asso-
ciations not incorporated under the laws of this State, engaged in the
city in effecting life or fire insurance, shall pay to the city treasurer the sum
of two dollars upon the one hundred dollars, and at that rate upon the amount
of all premiums, during the half year ending on the first days of January and
July, which shall be received or agreed to be paid for insurances effected in
the city, which rates, when collected, shall be set apart for the support and
maintenance of the fire department of the city, and requiring every acting agent
of such corporations, etc., on or before the 15th day of February, 1875, and on
the 15th days of January and July thereafter, to render a full, true and just
account, verified by his oath, of all premiums received or agreed to be paid
during the half year ending on such days, and to pay to the treasurer of the
city the amount with which such company shall be so chargeable under the
ordinance, and fixing a penalty of $200, enforcible by fine and imprisonment
on the agent, for a failure to make such report, or to pay the sum due at the
proper time, is valid and binding, and is not in conflict with the proviso of
sec. 30 of the Insurance law of the State or with any constitutional provision.
2. Foreign insurance companies — limitation upon power of city to tax agen-
cies. Independent of the proviso of section 30 of the Insurance law there
would be no limit to the power of the city to impose fees for a license on insu-
rance companies, unless it might be that the ordinance imposing the same
should be reasonable. But this section operates as a limitation on the power
of the city to impose more than two per cent on the gross receipts of the
agents of such companies.
3. Same — the legislature may impose such burthens on them as it pleases for the
privilege of doing business in this State. Foreign corporations are only permit-
ted to do business in this State by comity or consent, express or implied. The
legislature has the right to impose such burthens, terms and conditions as it
chooses on such bodies before they can do business in the State, or may pro-
hibit them therefrom altogether.
4. Same — license fee is not a tax. The provision of section 30 of the Insu-
rance law requiring that the net income of insurance companies shall be
returned to the assessor for general taxation at the same rate as other prop-
1880.] "Walker v. City of Springfield. 365
Brief for the Appellant. +
erty, to be in lieu of all town and municipal licenses, and the proviso that the
provisions of the section shall not be construed to prohibit cities, having an
organized fire department, from levying a tax or license fee not exceeding two
per cent on their gross receipts, to be applied exclusively to the support of the
fire department, do not subject such companies to double taxation. The sum
that may be charged by the cities is in no just sense a tax, but only a fee paid
for a license or privilege of transacting business within such cities.
5. Same — license fee may be by percentage on business done. The fact that a
certain percentage on the amount of the gross receipts is required to be paid
instead of a gross sum, for the privilege of carrying on business in a city,
does not render it a tax; but this is only an equitable mode of ascertaining
the amount of the license fee, and the fact that no permit or license is
required to be issued does not affect the question.
6. Statute — rule for construing where a word has to be rejected. Where it
becomes necessary to reject one of two words in a statute and to substitute
another to give force to the meaning of the law, it should be that which best
effectuates the legislative intention, and the courts should look to the object in
view of the law-makers.
7. Constitutional law — uniformity of taxation. A license fee upon for-
eign corporations doing business in this State, or upon their agents, not being
a tax, a law authorizing its- collection does not violate the constitutional pro-
vision respecting uniformity in taxation, and such corporations may be re-
quired to pay a tax in addition to the license fee.
8. Same — whether law operates with uniformity. Even if the latter clause of
section 1, article 9 of the constitution of 1870, in regard to taxing peddlers,
etc., in such manner as the General Assembly shall, from time to time, direct
by general law, uniform upon the class upon which it operates, related to tax-
ation and not to license fees, still section 30 of the Insurance law does not
conflict with such clause, as the provisions of that section operate uniformly
on the class to which it applies. It only applies to cities that maintain a fire
department, and it applies to all under the same circumstances, making no
exceptions.
Appeal from the Appellate Court for the Third District.
This was an action by the City of Springfield against Ed-
win S. Walker, in the Sangamon circuit court, to recover a
penalty for the violation of an ordinance of the city.
Messrs. Stuart, Edwards & Brown, for the appellant :
By sec. 30, ch. 73, R. S. 1874, p. 603, every agent of for-
eign insurance companies is required to report to the proper
366 Walker v. City of Springfield. [Jan. T.
Brief for the Appellant.
officer of the county, town, etc., in which the agency is estab-
lished, in the month of May, annually, the amount of net
receipts of such agency, which shall be entered on the tax
books and be subject to the same rate of taxation for all pur-
poses as other property; said tax to be in lieu of all town and
municipal licenses.
But the section has this proviso : "That the provisions of
this section shall not be construed to prohibit cities having
an organized fire department from levying a tax or license fee
not exceeding two per cent in accordance with their respective
charters, on said gross receipts, to be applied exclusively to
the support of the fire department of such city."
By this section the company pays on its property as other
property owners, and if the ordinance is valid a further sum
of two per cent on the same property can be exacted, and
thus double taxation is enforced.
The phrase, "said gross receipts," as applied to receipts, in
the section, is repugnant to the previous phraseology, "amount
of the net receipts," etc. Whether, however, the tax is upon
the net or gross receipts, it is to be on said receipts, and is to
be on the amount reported in the month of May. The ordi-
nance requires two returns to be made, viz: in January and
July, and the penalty is for not making the returns on those
days. The proviso does not authorize the cities to require
returns on any other day than in May.
It was decided, in Van Inwagen v. Chicago, 61 111. 31, that
the provisions as to the time of return and the differences as
to gross and net returns, make the repugnancy. Section 30
operates to repeal the express provision in the charter of the
city of Chicago.
The power to impose this tax or license fee is not conferred
by the proviso, because it is unconstitutional. The constitu-
tion authorizes the taxation of insurance business, but this
can only be done by a general law uniform as to the class on
which it operates.
1880.] Walker v. City of Springfield. 367
Opinion of the Court. +
Mr. Charles P. Kane, and Mr. Robert Hazlett, foi
the appellee:
If the authority to pass the ordinance is clear, considera-
tions of equity will not justify the court in declaring it void
from the fact that State and municipal authorities may have
the additional right to tax the net receipts of the same agen-
cies for other purposes. Peoria v. Calhoun, 29 111. 317; 1
Dill. Mun. Cor. sec. 262.
Section 1, article 9 of the constitution of 1870, has no ref-
erence to taxation by cities, etc., for municipal purposes, but
is intended to govern the taxing power of the State for State
purposes. The license fee, imposed by the ordinance, is not
the imposition of a tax.
Mr. Chief Justice Walker delivered the opinion of the
Court :
This record presents the single question, whether an ordi-
nance of the city imposing a license or tax of two per cent on
the premiums received, or contracted to be received, on all
foreign insurance companies doing business in the city, is
valid, and legally authorized. The charter is special, and
contains this provision :
" The city council shall have power, within the jurisdiction
of the city, by ordinance, to license, tax and regulate mer-
chants, commission merchants, inn keepers, bankers, money
brokers, insurance brokers, and auctioneers," etc. Also, by
section 5 of the amendment to the charter of 1859 it is provided :
" That in addition to the powers conferred by the charter of
said city the city council shall have power, within the juris-
diction of said city, by ordinance, first, to regulate agencies
of all insurance companies, and to license, tax and regulate
agents of all such insurance companies doing business in
said city," etc. Private Laws p. 269.
The ordinance adopted under these provisions, of which
complaint is made, provides that all corporations, companies
or associations not incorporated under the laws of this State,
368 Walker v. City of Springfield. [Jan. T.
Opinion of the Court.
engaged in the city in effecting life or fire insurance, shall
pay to the city treasurer the sum of $2 upon the $100, and at
that rate upon the amount of all premiums during the half
year ending on the first days of January and July, which
shall be received or agreed to be paid for insurance effected
in the city, which rates, when collected, shall be set apart for
the support and maintenance of the fire department of the
city; that every acting agent of such incorporations, etc.,
shall, on or before the loth day of February, 1875, and on
the 15th days of January and July thereafter, render to the
city comptroller a full, true and just account, verified by his
oath, of all premiums which, during the half year ending on
such days preceding such report, shall have been received for
premiums, or which have been agreed to be paid for or on be-
half of such corporation, etc. And such agent shall pay to
the city treasurer the amount with which such company shall
be so chargeable under the ordinance; and if such agent shall
fail, as required by the ordinance, to make such report, or, if
the sum shall remain unpaid after the date it is required to be
paid, the agent is rendered liable to a penalty of $200, which
may be enforced by fine or imprisonment, by suit, etc.
A suit was brought before a justice of the peace against
appellant, to recover the penalty for refusing to make the
report and pay the percentage on policies, as required by
the ordinance. The justice of the peace rendered a judg-
ment in favor of the city for $200 and costs. Defendant
perfected an appeal to the circuit court, where, on a trial
de novo, a like judgment was rendered. Defendant appealed
from that judgment to the Appellate Court, where the judg-
ment of the circuit court was affirmed, and the case comes to
this court on appeal, by a certificate under the statute by a
majority of the judges of that court, and a reversal is asked.
It is urged that the 30th section of chapter 73, Rev. Stat.
1874, controls this power of charging a license fee to foreign
insurance companies; that it is repugnant to and repeals
the provisions of the charter authorizing a tax or fee for a
1880.] Walker v. City of Springfield. 369
Opinion of the Court.
license. It provides that their net income shall be returned
to the assessor for general taxation, and at the same rate as
other property, and to be in lieu of all town and municipal
licenses; and it repeals all laws inconsistent therewith. But
it contains this proviso:
" That the provisions of this section shall not be construed
to prohibit cities having an organized fire department from
levying a tax or license fee, not exceeding two per cent, in
accordance with the provisions of their respective charters, on
said gross receipts, to be applied exclusively to the support
of the fire department of such city."
Independent of this provision of the Insurance law, there
would be no limit to the power of the city to impose fees for
a license on insurance companies, unless it might be the ordi-
nance imposing the same should be reasonable, but that ques-
tion is not before us for discussion. But this section operates
as a limitation on the power of the city to impose more than
two per cent on the receipts of their agents.
It is urged that as this section requires all such companies
to make a net return of their receipts for taxation, in the
same manner and at the same rate that other personal prop-
erty is subject, that if this two per cent is allowed to be
collected it would be double taxation. We fail to see that
such is the fact. A person who for a large sum procures a
license to sell liquors, and also pays a tax on his stock of
liquors and furniture, is not doubly taxed. He pays for the
privilege of carrying on his business, and then pays a tax on
his property. So of a person keeping a billiard saloon, an
auctioneer, a peddler, and many other callings. The mere fact
that they pay a tax on the property invested in the business
does not exempt them from procuring a license and paying
for the privilege of pursuing the particular business. For-
eign corporations are only permitted to do business in this
State by comity or consent expressed or implied. The Gen-
eral Assembly has the power to impose such burthens, terms
or conditions as it may choose on such bodies before they cau
24—94 III.
370 Walker v. City of Springfield. [Jan. T.
Opinion of the Court.
do any business in the State, or may prohibit them therefrom
altogether. It is the sole judge of whether or not they may
do business in the State, and, if permitted, to prescribe the terms.
The legislature, by this charter and the 30th section of the
Insurance law, has in this respect imposed the conditions on
which they may effect insurance in cities acting under char-
ters and maintaining a fire department. The two per cent on
the receipts of these companies is fixed as the maximum of
the fee or charge authorized to be received for a license to
transact business in the city. And this is not a tax, nor is it
in the nature of a tax. It is the fee or sum paid for a license,
It is only a mode of ascertaining the amount of the fee. The
city could have fixed it at a gross sum if that sum had not
exceeded the two per cent on receipts; or it may be that a fee
or specified sum might have been charged on each policy, un-
der the same limitations. In this class of business no one
can say, with any degree of certainty, what will be the extent
of the business transacted for any succeeding year or half
year, and hence a uniform fee would operate unequally on
the different companies, as their business would not be uni-
form as compared with each other, or even in the same com-
panies for different periods. Hence, ascertaining the amount
of business done for each six months, and the fee thus paid,
was regarded as more equal and just than to fix a uniform fee
for the license.
This is the mode adopted by the 110th section of the gen-
eral law incorporating "cities, villages and towns." And
this ordinance is in this respect in strict conformity to that
section, and thus pursues the legislative expression of what
is fair, equal and just in such cases. We are, therefore,
clearly of opinion that this section does not deprive the
city of the power to charge this fee for a license, but, on the
contrary, secures to it that right, within the limits that the
charge, fee or sum shall not exceed the amount of two per
cent on the receipts of such companies.
It is also claimed that, as such companies are only required
1880.] Walker v. City of Springfield. 371
Opinion of the Court. *
to return the net receipts of their agency, the words, " said gross
receipts/' as used in the proviso in the 30th section of the Insu-
rance law, should be read, "said net receipts;" that otherwise
there is nothing for the word "said " to refer to as an antece-
dent. If, to give the meaning of the General Assembly force,
we are compelled to reject one of these words and substitute
another, then it should be that which best effectuates the legis-
lative intention. If we should reject the word "gross," and
substitute the word "net," then the word "said" would refer
to the net receipts mentioned in the preceding portion of the
section. But suppose we reject the word "said," and substi-
tute the word "the," then the result would be entirely dif-
ferent, and leave the gross receipts upon which to estimate the
fee.
When we consider that the previous portion of the section
was for the purpose of taxation, and the proviso for the pur-
pose of fixing a maximum fee for a license, it is apparent that
the two provisions have no necessary connection. They relate
to different and dissimilar purposes. The proviso, to effectuate
its object, might have said such fees should not exceed $100,
or any other sum, as the price charged, or it might have fixed
a specific sum that should be paid for a license; or that body
had the power to say that the fee should not exceed three, four,
five or other per cent on either the net or gross receipts of the
agency. This proviso seems to have been intended to limit
and restrain more extensive powers granted by special char-
ters to various cities in the State. It had no reference to tax-
ation. We must, therefore, look, in giving a construction to
this clause, to the object in view of the law-makers. We think
the fair construction'of the proviso requires it to be read as if
written, "on the gross" receipts, etc.
The case of Van Inwagen v. Chicago, 61 111. 31, holds that
the 30th section of the Insurance law repeals so much of the
fifth section of chapter 8 of the charter of the city of Chicago
as was in conflict with it; and it was held that the provisions
as to the returns required to be made by the agent were re-
372 Walker v. City of Springfield. [Jan. T.
Opinion of the Court.
puguant to each other; and it failed to appear that the city
maintained a fire department, but if proof of that fact were
made, it might bring the case within the saving of the pro-
viso of section 30. This was said to exclude the inference
that it was held that a case properly made would not be en-
forced under the proviso, and to exclude the conclusion that
the levy could only be made on a return of the net receipts.
The two per cent sued for in that case was on receipts which
had accrued before the law of 1869 containing the 30th sec-
tion took effect, and the question was, whether an assessment
should be made under the provisions of the charter, or the
return and assessment should be required to be made under
this 30th section; and it was held, that until the time expired
for the return and the amount due the city was ascertained
under the 30th section, the right was inchoate, and must be
perfected and become vested in the manner prescribed by the
Insurance law, and not by the provisions of the city charter.
The question was not before the court, whether the amount
should be determined on the net or gross receipts, and, conse-
quently, was not intended to be decided. That question was
not considered by this court in that case. Here, the ordinance
is in strict compliance with that section, and the amount is
required to be fixed under the proviso, ahd is, therefore, in
conformity to the law.
It is, however, urged that this is a tax, and being such, the
law authorizing its imposition is repugnant to our present
constitution. In the case of The People v. Thurber, 13 111.
554, the same question was before the court, and it was held
not to be a tax, but a sum paid by foreign insurance companies
for a license or privilege of doing an insurance business in the
State. It was said: " This is not a tax upon property, but
is a burden upon the agent for the right of exercising a fran-
chise or privilege, which the legislature would have the right
to withhold or inhibit altogether, and the amount of pre-
miums charged is nlerely used as a mode of computing the
amount to be paid for the exercise of a privilege. The legis-
1880.] Walker v. City of Springfield. 373
Opinion of the Court. V
latu're might have adopted that as a mode of computing the
amount of the value of the property insured, and in that event
it could hardly be said to be a tax on that property; or the
mode of computation might have been the number of policies
issued or risks taken, without regard to the premiums charged
— and then what would the tax have been upon? It will be
observed that the law in question only applies to agents of
foreign insurance companies; and it would be strange, indeed,
if the legislature had not the power to prescribe the terms
upon which foreign corporations should be permitted to come
into this State and carry on their business, or even to prohibit
them altogether."
In that case, as in this, it was urged that the authority to
levy three per cent on the amount of the premiums charged
by the agent violated the constitutional rule of uniformity in
taxation. But it was held not to be a tax, but a sum paid for
a license to transact the business of these foreign corpora-
tions in the State; that it was a license, although no written
permit or license was required to be issued. And it was
held, as it was not a tax, that the law in nowise infringed the
constitution. To the same effect is the case of Illinois Mutual
Fire Insurance Co. v. City of Peoria, 29 111. 180. And the
case of East St. Louis v. Wehrung, 46 111. 392, holds that the
sum paid for a license is not a tax, and is not subject to the
rule of uniformity. The same doctrine was held in the case
of Ducat v. The City of Chicago, 48 111. 172. These cases,
we think, fully settle the doctrine that this burthen is not a
tax, and is not governed by the rules of taxation.
But it is said these cases all arose under the constitution of
1848, and that the first section of article nine of our present
constitution has changed the rule. The two sections are sub-
stantially the same. The second section of article nine of the
constitution of 1848 provides for levying a tax by valuation,
and so does that of 1870. The former authorizes the General
Assembly to tax peddlers, etc., and persons exercising fran-
chises and privileges, in such manner as they shall from time
374 Forbes et al. v. Snyder, Admx. [Jan. T.
Syllabus.
to time direct. That of 1870 has the same provision, ex-
pressed in this manner: "But the General Assembly shall
have power to tax peddlers, insurance business, * * *
persons or corporations owning or using franchises and
privileges, in such manner as it shall from time to time direct,
by general law, uniform as to the class upon which it ope-
rates." Thus it is seen, even as to taxation, the two organic
laws are substantially the same. But we have seen this
burthen is not a tax, and the first section only relates to taxes.
But even if it did, the 30th section of the insurance law is
general, and operates uniformly on the class to which it
applies. It only applies to cities that maintain a fire depart-
ment. And it undeniably applies uniformly to all, making
no exceptions in favor of or against any one of them.
Nor does the ninth section of article nine conflict with this
law. That section only relates to special or uniform taxation
for corporate purposes in municipalities. It has no reference
to licenses or license fees. We are, therefore, clearly, of
opinion that the charter, the 30th section of the Insurance
law and the city ordinance are constitutional, and conferred
on the city the power to sue for and recover the penalty.
This is the view presented by the case of Hughes v. City of
Cairo, 92 111. 339. The judgment of the Appellate Court
must be affirmed.
Judgment affirmed.
Isaac B. Forbes et al.
v.
Mary Snyder, Admx. etc.
1. Threats — whether admissible in evidence — in civil and criminal cases. In
an action under the statute to recover compensation for the wrongful killing
of another by attacking and shooting him, the defendants are not entitled to
prove threats of violence by the deceased which had been communicated to
them before the meeting which resulted in the killing, unless it is further
1880.] Forbes et al. v. Snyder, Admx. 375
Syllabus. V
shown that the deceased made some hostile demonstration before the attack,
indicating present danger to the defendant.
2. Previous threats are competent only to give character or coloring to
some act of the party having made the threats. The mere fact of threats to
take the life of a defendant does not justify him in seeking the person making
the threats and killing him on sight. This is not necessary self-defence.
3. But if A should threaten to kill B on sight, and B has knowledge of the
threat, and upon meeting, A, without fault on B's part, should make a de-
monstration apparently hostile and B should kill him, he would have the
right on the trial to prove his knowledge of the previous threats, that the jury
might determine whether he really acted upon a reasonable apprehension of
danger to his life or great bodily harm.
4. When life or liberty is at stake, as in criminal proceedings, courts will
permit threats to be proven upon very slight proof of a foundation for such
evidence, and this in favor of life and liberty; but in a mere matter of dollars
and cents, involving no vindictive damages, and seeking merely compensation
civilly for the wrong, no such leaning of the courts should be countenanced.
5. Witness — competency of party to suit. In an action by the personal rep-
resentative of a deceased person to recover compensation for the wrongful kill-
ing of the intestate by attacking and shooting him, the defendants are not
competent witnesses to prove matters which occurred between them and the
deceased anterior to the killing.
6. Deposition — right of opposite party to have the whole read. The plain-
tiff, in taking a deposition, examined the witness as to a certain conversation
of one of the defendants, but on the trial concluded not to introduce this
proof, and read the remaining part of the deposition. The defendants
claimed the right to read the omitted part and thereby prove their own decla-
rations: Meld, that as it was not competent for the defendants to prove their
own declarations, the court properly refused to allow them to read the whole
of the deposition.
7. It is true this court has said that a deposition once taken and filed,
either party has a right to use it; but the party proposing to use it must use
it only to prove that which it is competent for him to prove.
Appeal from the Appellate Court for the Third District;
the Hon. Chauncey L. Higbee, presiding Justice, and the
Hon. Oliver L. Davis and Hon. Lyman Lacey, Justices.
Messrs. Barnes & Muir, and Mr. J. E. Ong, for the appel-
lants.
Messrs. Bangs, Shaw & Edwards, for the appellee.
376 Forbes et al. v. Snyder, Admx. [Jan. T.
Opinion of the Court.
Mr. Justice Dickey delivered the opinion of the Court:
This is an action under the statute, by the administratrix
of the estate of George Snyder, deceased, brought for the use
of the next of kin, against appellants, upon the allegation
that defendants wrongfully caused the death of George Snyder.
The killing occurred in the presence of many witnesses.
The circumstances shown by their concurrent testimony, con-
tradicted by no witness, were substantially the following:
There was hostile feeling between Snyder and the appel-
lants.
In the early part of the evening appellants came together
to a drug store, in Lacon, and inquired for Snyder, and
uttered words betokening unkind feeling toward him; and
while they were talking, Snyder passed the door of the drug
store, going eastward on the sidewalk. Forbes called the
attention of Orr to the fact that Snyder was passing, and Orr
at once went out on the sidewalk and called Snyder back.
Snyder obeyed the summons, and meeting Orr a little east
of the door offered his hand, which Orr refused to accept, and
began at once to strike Snyder with his fists. Snyder seized
Orr with his hands- — taking hold of Orr's arms above the
elbows — thus holding off and preventing him from inflicting
further blows. In this movement the contending parties had
turned around so that Snyder's back was toward the door of
the drug store, and Orr was beyond him. Forbes followed
Orr out of the drug store and reached the outside of the
door, — when Snyder's back was toward the door as above
stated, being engaged in the struggle with Orr. Forbes at
once drew from his overcoat pocket a revolver, and fired three
shots in rapid succession at Snyder, each of which took effect,
and Snyder retreated into the drug store and to the rear part
of it, closely followed by Orr, who continued to strike or to
try to strike Snyder until he was intercepted by bystanders.
Forbes and Orr then went away together. Snyder lingered
1880.] Forbes et al. v. Snyder, Admx. 377
Opinion of the Court. V
a few days and then died of the wounds inflicted by Forbes
with his pistol.
The verdict was for plaintiff, and damages were assessed at
$2500. Defendants appealed to the Appellate Court for the
Third District, where the judgment was affirmed, and from
that judgment they appeal to this court.
It is assigned for error that the circuit court refused to
permit defendants to prove previous threats of violence by
Snyder, which had been communicated to defendants before
this meeting. In this there was no error. There is no evi-
dence whatever tending to prove any overt or even equivocal
act of Snyder indicating present danger to appellants or
either of them. Previous threats are competent only to give
character or coloring to some act of the party having made
the threats. The mere fact that another has threatened to take
my life does not justify me in seeking him and killing him
on sight. This is not necessary self-defence. If another
threaten to kill me on sight, and I know of such threat, and
on meeting my enemy, without fault on my part, he makes
a demonstration apparently hostile and I kill him, I have a
right on trial to prove my knowledge of the previous threats,
that the jury may determine whether I really acted from a
reasonable apprehension that my enemy was about to kill
me or do to me great bodily injury. In the absence of any
fact which may in any light be reasonably construed to be a
hostile movement or demonstration, prior threats do not tend
to show a defence. It is true, where life or liberty is at
stake, — as in a trial in a criminal proceeding, — courts will
permit threats to be proven upon very slight proof of a foun-
dation for such evidence, and this in favor of life and liberty;
but in a mere matter of dollars and cents, involving no vin-
dictive damages, and seeking merely compensation civilly for
the wrong, no such leaning of the courts should be counte-
nanced. There was no evidence tending to lay the necessary
foundation for evidence of previous threats, and it was, there-
378 Forbes et al. v. Snyder, Admx. [Jan. T.
Opinion of the Court.
fore, right to exclude the proof. See Cummins v. Crawford,
88 111. 312.
Defendants were offered as witnesses generally as to matters
anterior to the death of Snyder, and were held incompetent.
This ruling we hold to be correct. In this action the adverse
party sues as administratrix, and in such case a party or per-
son interested is expressly excepted from the operation of the
statute allowing parties to testify on their own motion in
their own behalf. But it is insisted that this clause is to be
confined to cases wherein the result of the suit must be to
increase or diminish the estate of the deceased person, and
that the damages in this case do not in any proper sense con-
stitute a part of the estate of deceased, — are not assets for the
payment of debts or for distribution to heirs or devisees. It
is true these damages are not strictly any part of the estate,
but they constitute a fund cast upon his next of kin by means
of his death. They surely come within the letter of the
statute, and, in our judgment, fall within its spirit. The
tongue of Snyder is silent as to the events which led to his
death. The same reasons which justify the limitation of the
general statute so as to silence adverse parties where the eifect
of the proceeding is to increase or decrease the estate, seem
equally cogent in a case like the present.
It is complained that plaintiff having read part of a depo-
sition, the court refused to permit the defendants to read
another part of the same deposition. On examination of the
matter excluded, it will be seen that it is not in any sense a
matter to be received as a cross-examination as to matter
already in evidence, and that it is matter which the defend-
ants could not introduce for themselves. This matter was
properly excluded. The plaintiff, in taking the deposition,
examined the witness as to a certain conversation of one of
defendants. On the trial plaintiff concluded not to introduce
this proof, and defendants claimed the right to prove their
own declarations by reading this deposition. It is true this
court has said that a deposition once taken and filed gives
1880.] Mapes et al. v. Scott et al. 379
Syllabus.
either party a right to use it; but the party proposing to use
it must use it only to prove that which it is competent for
that party to prove.
Many other questions are made by appellants, but the above
seem the most relied upon. We have examined every point
presented, and, without discussing them further in detail, will
say that we think the judgment of the Appellate Court right.
It must, therefore, be affirmed.
Judgment affirmed.
Landon Mapes et al.
v.
Edward Scott et al.
1. Change of venue — may be upon equitable terms. Under the Rev. Stat, of
1874, an order for a change of venue in a civil case may be made subject to
such equitable terms as safety to the rights of the parties may require, and
the court, in prescribing the terms and conditions, must exercise a sound dis-
cretion, and the exercise of such discretion is no ground of error unless there
is an abuse of it clearly prejudicial to the rights of the party complaining.
2. Where the defendants in an action of ejectment applied for a change
of venue, and it was made to appear by affidavit of the plaintiffs that they had
bought the land from parties who obtained title from the defendants, or some
of them, and that the use of the property was worth $600 per annum, that
two of the defendants resided out of the State, and that the others had no
property out of which the rents or damages for withholding the property
could be recovered, and that the case had once been tried resulting in favor
of the plaintiffs, and that the plaintiffs had been subjected to a loss of not less
than $600 annually since the commencement of the suit, by being deprived
of the use of the premises, it was held no abuse of discretion, and no error, in
requiring the defendants, as a condition to granting a change of venue, to
execute a bond to the plaintiffs in the sum of $500, conditioned to secure
the plaintiffs in the payment of rents for the premises in the event of a
recovery by them.
3. Description of land in a patent A description of land in a patent
fiora the United States as "the west half of the south-west quarter of section
9. in township 15 north, range 10 west, in the district of lands offered for
sale at Springfield, Illinois," is sufficiently certain. It is not essential to
380 Mapes et al. v. Scott et ah [Jan. T.
Brief for the Appellants.
name the county in the patent, and describing the land as in the district of
lands offered for sale at Springfield, Illinois, shows sufficiently the State in
which the land is situated.
4. National bank — may take conveyances of land in payment of debts. A
national bank has the right to acquire the title to real estate in satisfaction
of a pre-existing indebtedness.
5. Conveyances of real estate to national banks are valid for all purposes
until called in question by a direct proceeding instituted for that purpose by
the government. They can not be attacked collaterally, as, in an action of
ejectment.
6. Judgment — in ejectment. Where the plaintiff in ejectment claims
to own the premises in fee, and the verdict finds the defendants guilty,
and that the plaintiff is the owner in fee of the premises described in the dec-
laration, a judgment that the plaintiff is entitled to and shall have and recover
of and from the said defendants the possession of the premises described in the
declaration, to-wit, etc., though technically defective, when considered in con-
nection with the verdict is sufficient to show the estate recovered, and is
substantially good.
Appeal from the Circuit Court of Morgan county; the
Hon. Cyrus Epler, Judge, presiding.
Mr. Oscar A. De Letiw, and Messrs. Epler & Caeeon,
for the appellants :
The petitions for a change of venue on account of the pre-
judice of the judge were filed in apt time, and are strictly
within every possible requirement of the statute. Where an
applicant in a civil suit brings himself within the statute, the
discretion of the court ceases and the court is bound to grant
the petition. McGoon v. Little, 2 Gilm. 42; Barrows v. The
People, 11 111. 121; Wash v. Bay, 38 id. 30; Commercial
Ins. Co. v. Mehlman, 48 id. 316; Knickerbocker Ins. Co. v.
Tolman, 80 id. 106.
The court had no power to impose conditions in such a
case. Bellingall v. Duncan, 2 Gilm. 591.
A national bank can only acquire real estate, except in cases
enumerated in the National Banking act, in satisfaction of
debts previously contracted, and can only convey such as it may
properly acquire in the mode prescribed by its board of
1880.] Mapes et ah v. Scott et al. 381
Brief for the Appellees. Opinion of the Court. *
directors, by by-laws not inconsistent with the act creating
such corporation.
The judgment is defective in substance. The declaration
claims the title in fee simple in the plaintiffs. The judgment
is that " the plaintiffs have and recover of the defendants the
possession of the premises described in the declaration." The
language of the statute is that " the plaintiffs shall recover
according to the verdict of the jury." The plaintiff is bound
by the claim of title he makes in his declaration, and can not
recover any other estate. Rawlings v. Bailey, 15 111. 178, 540 ;
Koon v. Nichols, 63 id. 163.
Again, the judgment does not even pretend to describe the
county in which the lands purport to lie.
Messrs. Brown, Kirby & Bussell, and Mr. John T.
Springer, for the appellees :
The court did not err in refusing appellants' application
for a change of venue. The court had authority to impose
terms on granting the change. Rev. Stat. 1874, ch. 146, sec. 11.
The act of Congress, of which this court will take judicial
notice, under which these lands were sold, is recited in the
patent, and this act, together with the description given in the
patent, makes it clear that the land described in the patent
includes the land in controversy.
The conveyances to the national bank are valid until
assailed in a direct proceeding instituted for that purpose.
Such conveyances are not void, but voidable only. National
Bank v. Mathews, 8 Otto, 621.
The judgment is sufficient. In the cases cited there was a
trial by jury, when here the trial was by the court. Rev.
Stat. 1874, ch. 45, sec. 32; Minhhart v. Haulier, 19 111. 47.
Mr. Justice Craig delivered the opinion of the Court:
This is an appeal from a judgment rendered in the circuit
court of Morgan county, in an action of ejectment, in which
the plaintiffs in the action recovered the possession of the
382 Mapes et al. v. Scott et al. [Jan. T.
Opinion of the Court.
premises described in the declaration. The action was com-
menced by summons issued October 20, 1874, returnable to
the November term of the Morgan circuit court.
At the November term, 1876, and on the 14th day of No-
vember, the defendants served notice on the plaintiffs that
they would, on that day, enter a motion for a change of venue.
A petition was presented and the motion made. At the same
time the plaintiffs entered a cross-motion, that the petition
should only be allowed upon terms to be imposed by the
court, as provided by section 11, Rev. Stat. 1874, p. 1094,
which provides that the order for a change of venue may be
made subject to such equitable terms and conditions as safety
to the rights of the parties may seem to require, and the
judge, in his discretion, may prescribe.
Upon the hearing of the motion, the court made an order
granting the change of venue on condition that defendants
execute a bond in the sum of $500, conditioned to secure the
plaintiffs in the payment of rent for the premises, in the event of
a recovery by them. The defendants refused to execute a bond,
as required, and excepted to the ruling of the court. Where
a petition for a change of venue is filed in a*civil case and
the petitioner complies with the requirements of the statute,
the court has no discretion in deciding whether or not the
venue of the case shall be changed. The statute on this
point is imperative. The Knickerbocker Insurance Co. v. Tol-
man, 80 111. 106. But under the section of the statute, supra,
the order for a change of venue may be made subject to such
equitable terms as safety to the rights of the parties may re-
quire, and the judge, in prescribing the terms and conditions,
must exercise a sound discretion. The only question, there-
fore, to be determined is, whether the circuit court, in
deciding upon the application, exercised a proper discretion,
or were the terms imposed an abuse of that discretion con-
ferred by the statute. The exercise of a discretion can not be
held to be ground for a reversal of the judgment unless there
1880.] Mapes et al v. Scott et al. 383
Opinion of the Court. *.
was an abuse of the discretionary power of the court which
was clearly prejudicial to the rights of the petitioners.
On the hearing of the motion the plaintiffs filed an affidavit,
from which it appeared that the plaintiffs bought the premises
in controversy from parties who obtained title from the de-
fendants, or some of them; that the use of the premises is
worth to the plaintiffs $600 annually; that two of the de-
fendants reside out of the State, and the other defendants
have no real or personal property out of which the rents, or
damages for withholding the possession of the premises, could
be recovered should they succeed in the action of ejectment;
that the cause had once been tried, resulting in favor of the
plaintiffs. It also appears from the affidavit that the plaintiffs
have been subjected to a loss of not less than $600 annually
since the commencement of the suit, by being deprived of the
use of the premises. Now, if this affidavit was true, and its
truth was not contradicted on the hearing of the motion, was
there such an abuse of discretion exercised by the court in
requiring the defendants to execute a bond in the penal sum
of $500 to secure the payment of the rent of the premises,
as would justify a reversal of the judgment upon the ground
that the court had abused a discretionary power conferred by
the statute? We think not. If the defendants were defend-
ing the action in good faith, and had a meritorious defence, it
would have been an easy matter to have complied with the
order of the court, and the bond would have imposed no
liability upon them. If, on the other hand, the defence was
interposed for delay merely, then it was but right that they
should be required to give some guaranty that at the end of
the litigation a reasonable rent for the use of the premises
should be paid. While the court had no power to impose
arbitrary terms as a condition to granting a change of venue,
such as would defeat the right conferred by the statute, in a
case of this character, yet when the terms are equitable, and
such as impose no great hardship upon the party, unless the
statute which gives the circuit court the power is to be dis-
384 Mapes et al. v. Scott et ah [Jan. T.
Opinion of the Court.
regarded, we perceive no ground upon which it can be held
that the court exceeded the powers given by the statute in
making the order that was made in this case.
At two subsequent terms of court the application for a
change of venue was renewed, but as the notice given of the
intended application was insufficient, the court did not err in
overruling the petitions.
It is also insisted that the court erred in admitting in evidence
an exemplified copy of a patent from the United States to John
P. Tefft, for the reason that the range, county and State are
omitted in the description of the premises. The description
of the land in the patent is as follows: The west half of the
south-west quarter of section nine, in township fifteen north,
range ten west, in the district of lands offered for sale at Spring-
field, Illinois. As respects the range, the objection has no
foundation in fact. As to the county, it is not essential that
it should be named. In regard to the State, we had not
supposed, when the patent specifies that the land was in the
district of lands offered for sale at Springfield, Illinois, that
there could be any uncertainty as to the location.
The plaintiffs, in their chain of title, read in evidence a
deed from James Dunlap to Neely and Holland for an
undivided half of the land in question. Afterwards Neely
and wife conveyed to Holland an undivided one-fourth part of
the same. It is insisted that this does not vest Holland
with an undivided half. We perceive no ground for a doubt
on this question. Neely and Hollaud obtained a deed for an
undivided half. Each then had an undivided fourth, and
when Neely conveyed the undivided fourth, his deed passed
all the interest he had in the premises.
The plaintiffs, in establishing their chain of title, offered in
evidence two certain deeds made to the First National Bank,
Jacksonville. It is insisted by the defendants that these
deeds should have been excluded — that the bank could not
take and convey real property. Testimony was introduced
tending to prove that the bank acquired the property in pay-
1880.] Mapes et al. v. Scott et ah 385
Opinion of the Court.
mentof a pre-existing debt. There can be no doubt in regard
to the right of a national bank to acquire real estate in satis-
faction of a pre-existing indebtedness. In Mapes v. Scott, 88
111. 352, this point was expressly decided. But, independent of
this view, the right of the bank to acquire the property could
not be raised in this collateral manner. Conveyances to a
national bank must for all purposes be regarded as valid until
called in question by a direct proceeding instituted for that
purpose by the government, as held in National Bank v.
Mathews, 8 Otto, 621. As this decision of the Supreme Court
of the United States involves a construction of an act of Con-
gress, it is paramount and must prevail.
It is also contended that the judgment is fatally defective
in not specifying the particular estate recovered. By the
averments in the declaration the plaintiffs claim to own the
premises in fee. The jury by their verdict found the de-
fendants guilty, and that plaintiffs are owners in fee of the
premises described in the declaration. The verdict of the
jury was in strict conformity to the statute, which requires
the verdict to specify the estate established on the trial.
Section 32 of chapter 45, Ejectment, provides that the judg-
ment shall be that plaintiff recover the possession of the
premises according to the verdict of the jury. The judg-
ment entered here was as follows: "It is therefore ordered
by the court, that the said plaintiffs are entitled to, and shall
have and recover of and from the said defendants, the pos-
session of the premises described in the declaration, to-wit."
Now, while the judgment here entered is not in strict con-
formity to the requirements of the statute, and may be re-
garded as technically defective, yet, when the verdict and
judgment are considered together, there can be no doubt in
regard to what the judgment of the court was, and when that
is apparent and the finding is correct in law, a judgment
will not be reversed on account of some technical defect.
Minkhart v. Hankler, 19 111. 47. Some other questions of
25—94 III.
386 Fanning et al. v. Russell et al [Jan. T.
Syllabus.
minor importance have been raised, but we see no substantial
merit in them, and it will not be necessary to consider them
here.
The judgment will be affirmed.
Judgment affirmed.
Altha Fanning et ah
v.
John S. Russell et ah
1. Appeal — when it lies from Appellate Court. Where the judgment of the
Appellate Court is such that no further proceedings can be had in the circuit
court, except to carry into effect the mandate of the Appellate Court, and the
litigation involves a freehold, an appeal lies to this court from the judgment
or decree of the Appellate Court.
2. Practice in Supreme Court — reviewing facts found by Appellate Court.
The provision in the Practice act making the findings of fact by the Appellate
Court conclusive on error or appeal to this court, has no application to chan-
cery cases; and it is the duty of this court to review the evidence as to the
facts found which constitute the basis of the decree.
3. Chancery practice — trial of feigned issue. Where a doubtful question
of fact arises, it may be referred to a jui-y on a feigned issue. The verdict in
such case is to satisfy the conscience of the chancellor, and if he is not satis-
fied, he may disregard it, and either direct a new trial or find the facts him-
self. This is the practice in the courts of England as well as in our courts.
4. If a party is not satisfied with the verdict of the jury, on the trial of a
feigned issue out of chancery, he should make his objections at the earliest
possible opportunity, and in the court in which the error has intervened; and
if he makes no objection in the court below, he will be regarded as acquiescing
in the finding of the facts.
5. Fraudulent conveyance — when grantor retains enough to pap his debts. A
voluntary conveyance of lands by a father to his sons, by way of advance-
ment, will not be fraudulent as to creditors of the father, if he retains ample
means and property to pay all debts and liabilities.
6. Gift — taking notes in child's name is not a gift. The taking of a note by
a father in his daughter's name as payee, with the intention of making a gift
to the daughter, gives the latter no vested interest in the note before its deliv-
ery to her, but it will remain the absolute property of the father.
1880.] Fanning et al. v. Russell et al. 387
Opinion of the Court.
Writ of Error to the Appellate Court for the Third Dis-
trict; the Hon. Chauncey L. Higbke, presiding Justice, and
Hon. Oliver L. Davis and Hon. Lyman Lacey, Justices.
Messrs. Epler & Callon, Mr. Oscar A. DeLeuw, and
Mr. H. G. Whitlock, for the plaintiffs in error.
Messrs. Ketch am & Hatfield, and Mr. T. G. Taylor,
for the defendants in error.
Mr. Justice Scott delivered the opinion of the Court:
This bill was filed by the creditors of Sampson Fanning,
since deceased, to subject certain lands, which it is alleged he
owned at the time their indebtedness was contracted, to its
payment. In the original bill the amount of such indebted-
ness, when contracted, and the lands owned by the debtor at
the time, are all set forth with sufficient definiteness. As a
ground of relief, it is alleged the conveyance of the lands by
the debtor to his sons, after the indebtedness was contracted,
was fraudulent as to the grantor's creditors; that such con-
veyances were made for a pretended, and not a valuable, con-
sideration, for the purpose of alienating all his real estate
liable to the debt owing to complainants, and that such con-
veyances were in the way and insurmountable embarrassments
in making a successful levy and sale of such lands under exe-
cution on the judgment complainants had recovered against
the grantor in his lifetime; and the prayer of the bill was,
that such conveyances be set aside, and that the lands not
included in the trust deed to Morrison and Dodd, nor em-
braced in the mortgage to Jones, be sold, or so much thereof
as may be necessary to satisfy the judgment in favor of com-
plainants.
Afterwards, the bill was amended so as to contain an allega-
tion that all the lands in the original bill described were con-
veyed by Sampson Fanning, his wife, Altha, joining with
him in the execution of the deeds, to the grantees mentioned
388 Fanning et ah v. Russell et ah [Jan. T.
Opinion of the Court.
in the original bill, all of whom were his children, as and
for advancements, and were voluntary and without any valu-
able consideration, while the debt of complainants was out-
standing and unpaid; that such advancements by Sampson
Fanning were made by the conveyances in the original bill
set forth, and complainants prayed for the same relief as in
the original bill. The answers of defendants contain specific
denials that such conveyances were either fraudulent or made
as advancements to the grantees from their father, but allege
such conveyances were for valuable considerations, setting
forth in what such considerations consisted. It was upon the
issues made on the amended bill the cause was tried, and the
insistment on the argument is, that each of the conveyances
set forth in the bill was voluntary, and that they, together
with the making of the notes to the sisters of the grantees,
constituted a part of a plan or scheme by which to distribute
the estate of Sampson Fanning among his children, while the
debt due complainants remained unpaid.
An issue out of chancery was ordered by the circuit court
on the pleadings in the case, and two distinct questions sub-
mitted :
1. Were the foregoing deeds of conveyance made without
any valuable consideration ? If with such consideration,
what and how much with reference to each deed?
2. Did Sampson Fanning, at the date of making such
conveyances, own other sufficient property to pay his indebt-
edness then existing?
The jury, to whom these issues of fact were submitted,
found each conveyance was for a valuable consideration, stat-
ing in detail* of what such consideration consisted and how
paid, whether in money or notes; and . further found that
Sampson Fanning had, at the time of the conveyances in
question, other property sufficient to pay his indebtedness.
On the coming in of the verdict some additional testimony,
to that taken before the jury, was taken, and the circuit court,
on the final hearing, dismissed the bill. On complainants'
1880.] Fanning et al. v. Kussell et al 389
Opinion of the Court.
appeal that decree was reversed by the Appellate Court, with
directions to the circuit court to enter a decree granting the
relief asked by complainants in their bill. As the judgment
rendered was such that no further proceedings could be had
in the court below, except to carry into effect the mandate of
the Appellate Court, defendants bring the case directly to
this court on error, as they have a right to do under the
statute — a freehold being involved in the litigation.
A preliminary objection is taken, that the Appellate Court
having found the facts stated in its opinion, such finding,
under the Practice act, is conclusive, and is not the subject of
review in this court. Since this cause was submitted, the
sections of the Practice act cited have been the subjects of
construction by this court, and it has been held they have no
application to chancery cases ; and it is now, as was the for-
mer practice, the duty of this court to review the evidence as
to facts found which constitute the basis of the decree.
There being no controversy that complainants were credi-
tors of Sampson Fanning at the date of the conveyances
mentioned, it is apparent, and the concession of counsel is to
that effect, that the case turns wholly on questions of fact,
viz: whether the conveyances of the lands involved by Samp-
son Fanning and his wife to his sons were voluntary and
without valuable considerations, and whether Sampson Fan-
ning, at the time of such conveyances, had other property
sufficient to pay his debts then outstanding. Whether Epler
is the holder for a valuable consideration of the notes given
in part payment of the lands conveyed, is not material to the
decision in the view we have taken of the case.
The precise questions of fact indicated, as we have seen,
were submitted to a jury on a feigned issue out of chancery,
and the verdict finds the conveyances all had for their sup-
port, not only a valuable consideration, but, if true, what
seems to be an adequate consideration, and that the grantor,
after making such conveyances, retained other property suffi-
cient in amount to pay all his existing indebtedness. That
390 Fanning et al. v. Russell et at. [Jan. T.
Opinion of the Court.
finding, together with some testimony subsequently heard, but
of.no great importance, was made the basis of a decree dis-
missing the bill. The facts, if well found by the jury, would
fully warrant the decree and would effectually bar all relief.
The correctness of the finding of the jury as to the facts on the
evidence presented to them, does not seem to have been chal-
lenged by complainants in the circuit court, either by a
motion for a new trial on the issues submitted, or by any
exception to such finding, in analogy to an exception to the
master's report finding facts on evidence taken before him.
Omitting to call in question the correctness of the verdict on
the feigned issues tried on the law side of the court, — will the
unsuccessful party be deemed to have acquiesced in such find-
ing, or may he, for the first time, in the Appellate Court,
insist the facts were incorrectly found — are questions pressed
on our attention.
When any question of fact arises in a chancery case which
the court considers doubtful, it may be referred to a jury on a
feigned issue. According to the practice in the English
courts of chancery, the verdict in such cases is to satisfy the
conscience of the chancellor, and if he is not satisfied he may
disregard it, and either direct a new trial or find the facts
himself. The same practice obtains in our courts.
In the case before us the court was satisfied with the ver-
dict, and seems to have made it the basis of a decree dismiss-
ing the bill. The rule upon this subject, as stated in the text
books, is that if a party against whom a verdict is found is
dissatisfied with it, and wishes a new trial, he must make an
application for that purpose to the court that directed the
trial. The reason assigned for the practice by the chancellor,
in Blootte v. Blundell, 19 Ves. 500, is, that upon an issue
directed, the court reserves to itself the review of all that
passes at law; and as was further said, one principle on
which the motion for a new trial must be made in the court
that directed the trial, is that such court regards the judge's
report with a view to determine whether the information col-
1880.] Fanning et al. v. Russell et al. 391
Opinion of the Court.
lected before the jury, together with that which appears on
its record, is sufficient to enable it to proceed satisfactorily, to
which it did not conceive itself competent previously.
In Daniell's Chancery Practice, — a work of acknowledged
authority — in discussing motions for new trials on feigned
issues, it is said: "Upon the trial of an issue a bill of
exception for an alleged misdirection of the judge will not
lie, but the regular course is to apply to the court which
directed the issue, for a new trial." 2 Dan. Ch. (1 Am. ed.)
1305. English cases cited in the margin support the text.
American decisions are to the same eifect. It was said, in
Johnson v. Harmon, 94 U. S. R. 271, "A bill of exceptions
can not be taken on the trial of a feigned issue directed by a
court of equity, or if taken, can only be used on a motion for
new trial made to said court." On the hearing, it is the duty
of the court, as stated in the case last cited, to decide upon
the whole case, pleadings, evidence and verdict, giving to the
latter so much eifect as it is worth, and, it is added, an appeal
from such decree must be decided in the same way. It is
plain, therefore, that so long as the verdict stands unchal-
lenged and has the approval of the court, it tends to support
the decree and may go far to maintain it. This proposition
has for its support both authority and reason. It is the
conclusion of the jury upon questions the chancellor consid-
ered doubtful, and as to which, without the verdict, he did
not conceive himself competent to proceed previously. There
is still greater reason why it should be regarded as estab-
lishing the facts, before then considered doubtful, when the
case is heard on appeal, for it is not only the conclusion of
the jury, but it has the sanction of the court before whom the
issue was tried. It is a reasonable rule, if the party against
whom a verdict has been found has anything to say against
its correctness, he shall be required to do it at the earliest
possible opportunity, and in that court where the error, if
any has intervened, can be best and most speedily corrected;
392 Fanning et al. v. Kussekl et al. [Jan. T.
Opinion of the Court.
otherwise he ought to be understood as acquiescing in the
findings of the facts.
But aside from all consideration due to the verdict, when it
has not been called in question in any appropriate mode known
to the practice, by the unsuccessful party, the finding of the
jury as to the principal facts in the case at bar is well sustained
by the testimony. One issue made by the pleadings was whether
the several conveyances made by the debtor to his sons were
mere voluntary conveyances as and for advancements. That
question was definitely submitted to the jury, who found that
each conveyance was made upon a valuable consideration,
stating of what that consideration consisted.
On looking into the evidence, we entertain no doubt that
fact was well found. Aside from the cash payments, which
were quite considerable, if the testimony is to be believed,
and the jury seem to have regarded it as worthy of belief,
it is proven the grantees assumed to pay the incumbrances
resting on the lands conveyed to them in the sum of $6000,
and executed their negotiable notes bearing interest at the
rate of 10 per cent per annum, for the sum of $9000, for the
residue of the purchase money. Assuming that the grantees
would pay the incumbrances on the lands, as they were obli-
gated to do, and pay their notes given for the residue of the
purchase money, which was secured by vendor's lien on the
lands, the amount agreed to be paid for the lands is not far
from an adequate consideration. These facts are not matters
of controversy, and in view of them, it is not perceived how
it can be maintained these were mere voluntary convey-
ances, made upon no valuable considerations. As that is the
theory on which the bill in this case is framed, it is not in
this regard sustained by the proof.
As respects the other fact found, viz: that Sampson Fan-
ning, after making such conveyances, had other property suffi-
cient to pay his existing indebtedness, it seems to be fully
sustained by the testimony. It is shown he had the cash
payments made by the grantees, whatever they were; also,
1880.] Fanning et al. v. Russell et al. 393
Opinion of the Court.
the $4,000 obtained on the Jones mortgage, and whatever, if
"anything, that remained of the $2000 received oil the Morri-
son '& Dodd trust, besides a considerable amount of other
personal property. The notes given for the lands conveyed to
the sons and made payable to the daughters, all bore interest
which was made payable to Sampson Fanning, a large amount
of which, we understand from the evidence, was in fact paid.
It is true, notes taken to secure the purchase money of the
lands were made payable in sums of $1500 to each of the
grantor's six daughters, but the testimony of George W.
Fanning, a witness called by complainants, is " those notes
were delivered to my father — all of them at that time. They
were not delivered to my sisters." No doubt it was the in-
tention of the father that his daughters should each have the
benefit of one of the notes, that is, the principal, the interest
being made payable to him, but so long as he retained the pos-
session of such notes they were his own property, notwith-
standing they were made payable to his daughters. Until
the notes were delivered it was his privilege to change his
purpose and withhold the gifts he may have intended to make.
The daughters had no vested interest in the gifts their father
may have proposed to make them, and of course could not
compel a specific performance. It does not appear the notes
were ever delivered to the beneficiaries named, by the father
holding them. It is certain four of them were not. So long,
therefore, as Sampson Fanning retained these notes in his pos-
session, they were absolutely his property, and that was cer-
tainly long after the conveyances were made. Assuming, as
we may rightfully do, that the notes given for the residue of the
purchase money of the lands conveyed belonged to the grantor,
as they certainly did until he chose to part with them, they,
with other property and money which it is abundantly proven
he had after the conveyances, constituted a fund amply suf-
ficient to pay all of his indebtedness then existing. What
this grantor may have proposed to do with the notes given
to secure the purchase money of the lands was a matter of no
394 Trustees of Schools v. Hovey et ux. [Jan. T.
Syllabus.
concern to the grantees. As to them, there was no failure of
consideration^ and their obligation to pay the notes was abso-
lute, whether in the hands of the payees or Sampson Fanning,
or in the hands of any assignee.
The judgment of the Appellate Court will be reversed, and
the cause remanded to that court, with directions to affirm the
decree of the circuit court.
Judgment reversed.
Trustees of Schools, Etc.
v.
Lorenzo D. Hovey et ux.
1. Homestead — not affected by lien of collector's bond. The lien created by
statute upon the real estate of a collector of the revenue, who gives an offi-
cial bond, does not in any way affect the homestead estate of such collector.
2. Same — release — sufficiency of acknowledgment. A certificate of acknowl-
edgment of a release of a homestead by a husband and wife, for the purpose
of having a levy made thereon, that on a certain day came before the otficer
A, and B, his wife, to him known to be the identical persons who executed the
above release and waiver, and acknowledged that they executed the same
freely and voluntarily for the uses and purposes therein expressed, and that
the said B, wife of the said A, " after having been informed by me of her
rights under the homestead law and of the effect of this instrument, on
being examined separate and apart from the said husband, acknowledged that
she had executed the same freely, voluntarily, and for the purpose of waiving
homestead and her dower in the same, and without the compulsion of her said
husband, and that she does not wish to retract," is insufficient to release the
homestead as to the husband, for the reason that no such intention is shown
in the acknowledgment, but is good as to the wife.
Appeal from the Circuit Court of DeWitt county; the
Hon. Lyman Lacey, Judge, presiding.
Mr. RrcHARD A. Lemon, for the appellants.
Mr. P. T. Sweeney, for the appellees.
1880.] Trustees of Schools v. Hovey et ux. 395
Opinion of the Court.
Mr. Justice Sheldon delivered the opinion of the Court :
This was an action of forcible detainer, brought by the
Trustees of Schools T. 20, K. 2 E, 3d P. M., against Lorenzo
D. Hove}', and Matilda Hovey, his wife, to recover the posses-
sion of certain real estate in the towiiiof Clinton, in which
there was judgment for the defendants, and the plaintiffs ap-
pealed.
The plaintiffs claim title and right to recover under a sale
of the property on execution upon a judgment against Lo-
renzo D. Hovey and others. The defendants claim a home-
stead e rate in the premises.
No question is made as to the former existence of the right
of homestead in Lorenzo D. Hovey.
The property sold upon the execution for $1424. As the
record shows nothing upon the subject whether the sheriff, in
making sale of the property, did or not comply with the
requirements of the Homestead act, defendants insist the
legal presumption is that the officer performed his duty, and
that, therefore, it must be presumed that the sheriff proceeded
regularly under the Homestead act as he was required to do;
that it is to be presumed it was found under that act that the
proper y was worth more than $1000, and could not be di-
vided, and that upon the sale the sheriff paid over to the
execution debtor, out of the proceeds, the $1000 which the
latter was entitled to receive in such case.
It is enough to say that the sheriff's return on the execu-
tion confutes this. It appears from said return that the
proceeds of the sale were $1424.41, and that the sheriff paid
over to the plaintiffs in the execution $1361.41, showing
that he did not pay the execution debtor $1000 out of the
proceeds of the sale.
The judgment against Hovey was upon his official bond as
county collector, for a breach of condition, and as section 146
of the Revenue act, upon the subject of the official bonds of
the county collector, amongst other things, provides that such
396 Trustees of Schools v. Hovey et ux. [Jan. T.
Opinion of the Court.
bonds "shall be a lien against the real estate of such collec-
tor until he shall have complied with the conditions thereof/'
it is claimed there is no homestead right as against this lien.
We are of opinion that this lien does not in any way affect
the homestead estate.
The remaining and more serious ground of defence against
the claim of homestead right is, that it has been released.
The alleged release and acknowledgment thereof are as fol-
lows, the premises described being those involved in this suit:
"Know all men by these presents: That we, Lorenzo D.
Hovey, and Matilda Hovey, his wife, of DeWitt county, Illi-
nois, for and in consideration that Amos Weedman, as sheriff
of DeWitt county, will levy an execution he now has in his
hands against Lorenzo D. Hovey, Jordan Banta, Tilman
Lane, James A. Wilson, Benjamin F. Barnett, Thomas Hoop,
John D. Graham, Charles Will more, William A. Squires,
George Butler, impleaded with Ross Mitchell, at the suit of
the people of the State of Illinois, who sue for the use of
school district No. 8, T. 20, R. 2 east of 3d P. M., on the fol-
lowing real estate, to-wit : The south-east quarter and east
half of the east half of the south-west quarter of out-lot No.
14, in the original town, now city, of Clinton, in the county
of DeWitt, and State of Illinois, and for the further consid-
eration of one dollar to us paid, do hereby expressly release
and waive all our rights and claims in and to the said lands
above described, which may, does or can exist under and by
virtue of any and all laws in this State exempting homesteads
from levy and forced sale.
" Witness our hands and seals this 24th day of February,
A. D. 1877.
"Lorenzo D. Hovey, (seal.)
"Matilda Hovey, (seal.)
"State of Illinois, 1
De Witt County. j ■
"This day came before the undersigned, a notary public in
and for said county, Lorenzo D. Hovey, and Matilda Hovey,
1880.] Trustees of Schools v. Hovey et ux. 397
Opinion of the Court.
his wife, to me known to be the identical persons who exe-
cuted the above release and waiver, and who acknowledged
that they had executed the same freely and voluntarily for
the uses and purposes therein expressed; and the said Matilda
Hovey, wife of the said Lorenzo D. Hovey, after having been
informed by me of her rights under the Homestead law and
of the effect of this instrument, on being examined separate
and apart from the said husband, acknowledged that she had
executed the same freely, voluntarily, and for the purpose of
waiving homestead and her dower in the same, and without
the compulsion of her said husband, and that she does not
wish to retract.
" Witness my hand and seal the day and date above written.
George B. Graham, (seal.)
Notary Public"
The objection taken to this release is, that no releasee is
named in it, and that it is not acknowledged in conformity
with the statute. The provision of the statute as to acknowl-
edgment is this: "No deed or other instrument shall be con-
strued as releasing or waiving the right of homestead, unless
the same shall contain a clause expressly releasing or waiving
such right. And in such case the certificate of acknowledg-
ment shall contain a clause substantially as follows : * In-
cluding the release and waiver of the right of homestead/ or
other words which shall expressly show that the parties
executing the deed or other instrument intended to release
such right. And no release or waiver of the right of home-
stead by the husband shall bind the wife unless she join in
such release or waiver." Eev. Stat. 1874, p. 278, sec. 27.
As this section occurs in the chapter of the statutes entitled
"Conveyances," it is argued that it has reference to the case
of ordinary conveyances of land, as deeds, mortgages, etc.,
where there might be reason to suppose it might not have
been the intention of the grantors to release the homestead
right, unless some apt words showing such intention were used
in the certificate of acknowledgment, but that in a case like the
398 Trustees of Schools v. Hovey et ux. [Jan. T.
Opinion of the Court.
one at bar, where the whole subject of the instrument is the
release of the homestead, in order that it may be sold, there
could be no mistake as to the intention of the grantors, and
that none of the reasons which apply to the ordinary convey-
ances named in the act entitled "Conveyances," exist, or can
be applied to this case. It is further said that the first clause
of the section provides that no deed or instrument shall re-
lease the right of homestead unless the same shall contain a
clause expressly releasing it, and then proceeds that in "such
case" the certificate of acknowledgment shall contain the
clause, including the release of the homestead; that the par-
ticular words here employed show that two separate estates
were contemplated — the fee simple estate, and the estate of
homestead. And that the statute very properly provides that
where these two estates are sought to be conveyed by one in-
strument, the certificate of acknowledgment shall show that
it was the intention of the parties to release the homestead
right, but that the section has no proper application to the
case of a simple instrument of release of the homestead right
alone.
The section speaks not only of a "deed," which might be
held as more properly applying to an ordinary conveyance of
land, but it names "other instrument," which might very
properly embrace the case of a simple release of the home-
stead right.
It is true that in this present case it would not be an apt
form of certificate of acknowledgment for it to contain the
words, " including the release and waiver of the right of
homestead," where there was nothing but a simple instrument
of release of that right, and where there was nothing to be
included with it. But it is not the requirement that the cer-
tificate of acknowledgment must contain those words, but
those " or other words which shall expressly show that the
parties executing the deed or other instrument intended to
release such right." With entire aptness the form of the cer-
1880.] Trustees of Schools v. Hovey et ux. 399
Opinion of the Court.
tificate here might have-contained the alternative, "or other
words," etc., named.
The point made upon the word " including," as referring
to cases where there was more than one subject of convey-
ance, would have had more force had all certificates of
acknowledgment been required to contain that particular
clause which uses that word. Release of the homestead being
commonly made in the ordinary conveyance of land, the pre-
scribed form of words, including the release of the right of
homestead, might, coupled with the alternative of the "other
words" named, very properly be required in all certificates
of acknowledgment, as the same would be applicable in either
case, of an ordinary conveyance, or a simple release of the
homestead.
But it is insisted further, that the certificate of acknowledg-
ment here is in compliance with the statute, as it certifies that
the persons who executed the above release and waiver
acknowledged that they had executed the same. It is asked
what more could the parties acknowledge or the notary have
certified? Should the notary have added this: ''including
the release and waiver of the right of homestead," when
there was nothing but a release of the homestead? As re-
marked, it might not have been appropriate here to add those
particular words, but there might have been added the alter-
native words expressly showing that the parties executing the
release intended to release the homestead right. All the cer-
tificate of acknowledgment shows is that the parties "who
executed the above release and waiver acknowledged that they
had executed the same freely and voluntarily for the uses and
purposes therein expressed," that is, that the parties acknowl-
edged that they had executed the instrument of release for the
uses and purposes therein expressed It does not, as the statute
requires, expressly show that the parties executing tfye instru-
ment intended to release the homestead right. They might
not have known that the instrument was a release of the
right of homestead; they might not have intended to release
400 Kirkland v. Cox et al. [Jan. T.
Syllabus.
such right, and may not have acknowledged that they did so
intend.
The certificate surely does not say that they did so
acknowledge, but the statute is that the certificate must so
state.
What is said is in reference to the husband's acknowledg-
ment.
That of the wife was sufficient.
The certificate of acknowledgment as respects the husband
we do not regard as in conformity with the requirement of
the statute, and for that reason we feel compelled to hold that
the instrument of release in question is insufficient as a re-
lease of the homestead, and the judgment of the circuit court
must be affirmed.
Judgment affirmed.
Thomas C. Kirkland
v.
George T. Cox et al.
1. Ejectment — plaintiff must have legal title. As the naked legal title must
control in ejectment, it is sufficient to defeat the action to show that the legal
title is not in the plaintiff.
2. Uses and trusts — presumption as to estate taken by trustee. A trustee
must be presumed to take an estate only commensurate with the charges or
duties imposed on him, but this is subject to the qualification that such pre-
sumption shall be consistent with the intention of the party creating the trust,
as manifested by the words employed in the instrument by which it is created.
3. Same — token statute of uses executes the trust. Under the statute of uses
in force in this State, where an estate is conveyed to one person for the use of
or upon a trust for another, and nothing more is said, the statute immediately
transfers the legal estate to the use, and no trust is created, although express
words of timst are used. But this has reference only to passive, simple or
dry trusts. In such case the legal estate never vests in the feoffee, but is in-
stantaneously transferred to the cestui que use as soon as the use is declared.
4. Same — exceptions to operation of statute of uses. Jfhe courts of both law
and equity hold that there are three classes of cases in which the statute of
1880.] Kirkland v. Cox et al 401
Syllabus.
uses does not execute the use, and when the use remains as it did before the
statute, a mere equitable interest, to be administered only in a court of equity,
viz: 1, where a use is limited upon a use; 2, where a copyhold or leasehold
estate or personal property is limited to uses; and 3, where such powers or,
duties are imposed with the estate upon a donee to uses so that it is necessary
that he should continue to hold the legal title in order to perform his duty or
execute the power.
5. If any agency, duty or power be imposed on the trustee, as, by way of
limitation to a trustee and his heirs to pay the rents, or to convey the estate,
or if any control is to be exercised or duty performed by the trustee in apply-
ing the rents to a person's maintenance, or in making repairs, or to preserve
contingent remainders, or to raise a sum of money, or to dispose of the estate
by sale, in all these, and other like cases, the operation of the statute of uses
is excluded, and the trusts or uses remain mere equitable estates. So, if the
trustee is to exercise any discretion in the management of the estate, in the
investment of the proceeds or the principal, or in the application of the
income, or if the purpose of the trust is to protect the estate for a given time,
or until the death of some one, etc.
6. Same — -former decisions. In Harris v. Cornell, 80 111. 67, the remark (re-
ferring to the case of Hardin v. Osborn.) that it had been held that where the
purposes of a trust had been accomplished, the owner of the trust became by
operation of law reinvested with the legal title and could sue in ejectment,
was unadvisedly made, as the opinion in that case was withdrawn on a rehear-
ing granted. In McNab v. Young et al. 81 111. 11, language of like import
was used ,upon the authority of the same case.
7. Same — how party may be reinvested with legal title in trustee. Where the
legal title to land is vested in a trustee, nothing short of a reconveyance can
place the legal title back in the grantor or his heirs, subject of course to the
qualification that under certain circumstances such reconveyance will be pre-
sumed without direct proof of the fact.
8. Same — devise to trustee — what estate passes. A devise of an estate, real
and personal, after the payment of debts, etc., to trustees, with power "to
make such disposal of the estate as shall," in the judgment of the trustees,
"benefit and increase the value of said estate," and imposing the duty of
paying to the testator's daughter "such installments of money as in the
judgment of said trustees shall be proper, and sufficient to meet her current
expenses and provide an ample and comfortable support," necessarily implies
the power to sell the lands of the testator and convert them into money or
interest bearing securities, and the power implied to sell is to sell the whole
title, and to this is essential the power to convey that title, requiring as a
condition precedent a fee simple estate in the trustees.
9. If land is devised to trustees without the word " heirs," and a trust is
declared which can not be fully executed but by the trustees taking an in
26—94 III.
402 Kiekland v. Cox et al. [Jan. T.
Statement of the case.
heritance, the court will enlarge or extend their estate into a fee simple to
enable them to carry out the intention of the donor. Thus, if land is devised
to trustees without the word heirs, in trust to sell, even in their discretion,
they must have the fee, otherwise they can not sell and convey, and the con-
struction will be the same if the trust is to sell the whole or a part, and a
trust to convey or lease at discretion will be subject to the same rule.
10. A testator used the following language: "As to my worldly estate,
all the real, personal and mixed estate of which I shall die seized," "I
hereby grant, devise and convey and confirm unto" three trustees named,
"in trust," etc., and then directed the trustees to assume and take entire
control of his estate, collect debts, rents, etc., and to govern and control such
interests as might accrue and arise to the estate from time to time, and make
such disposal of the same as should, in their judgment, increase and benefit
said estate, and pay his daughter such installments as they should deem
proper, and sufficient to meet her current expenses and provide her an ample
support, and should transfer his estate to his daughter upon her becoming
thirty-five years of age, if then unmarried, but if married, then only upon a
certain contingency, etc., and in the event of her death without issue, to pay
certain specified legacies, and then directing that the balance of his estate
be divided equally between three charitable corporations: Held, that this
gave the trustees the entire control and management of the estate until the
daughter arrived at the age named, she being unmarried, and if she died
before that age without issue, the control and management of the estate con-
tinued to devolve upon them, and that they took the title in fee for the pur-
poses of the trust.
11. Same — zvhether jointly or in severalty. Where a testator devised all
his estate remaining after the payment of his debts and funeral expenses, to
trustees, in trust for his daughter, to be held and managed by them until she
should marry or arrive at the age of thirty-five years, and providing, in the
event his daughter should die without issue, certain legacies should be paid,
and the balance to be equally divided between the House of the Good Shep-
herd, in St. Louis, Mo., St. Joseph Male Orphan Asylum, and St. Ann's Infant
Asylum, both of Washington City, it was held that the grant to the three cor-
porations was in severalty and not as tenants in common, and that on the
death of the daughter without issue it was intended to make it the duty of
the trustees to make an equal division of the property between these corpora-
tions.
Appeal from the Circuit Court of Montgomery county;
the Hon. Charles S. Zane, Judge, presiding.
This was an action of ejectment by appellees, claiming as
heirs at law of Michael Walsh, deceased, against appellants,
claiming as trustees of his estate, to recover possession of cer-
1880.] Kiekland v. Cox et al. 403
Statement of the case.
9
tain lands lying in Montgomery county. The case was tried
by the court without the intervention of a jury, and judgment
was rendered in favor of appellees, to reverse which this
appeal is prosecuted.
The material facts were agreed to by the counsel of the
respective parties and embodied in a stipulation in writing,
which they signed, and which is incorporated into the record.
By this it is shown that said Michael Walsh died on the 23d
day of September, 1867, leaving him surviving no widow,
but his daughter, Mary L. Walsh, his only child and heir at
law; that said Mary L. Walsh died on the 18th day of July,
1875, being then under the age of thirty-five years, leaving
appellees her next of kin and heirs at law; that said Michael
Walsh was seized in fee simple of the lands in controversy
at the time of his death ; that said Michael Walsh left a last
will and testament, which has been duly probated, in which
he makes, among others, the following devises and bequests:
"As to my worldly estate, all the real, singular, personal
and mixed, of which I shall die seized and possessed, or to
which I may be entitled after my decease, after the payment
of all just debts, demands and funeral charges, I hereby grant,
devise, convey and confirm unto Horatio M. Vandeveer, of
Taylorville, Christian county, Illinois, and Charles T. Hodges,
of Walshville, Montgomery county, Illinois, and Andrew
Sproule, of Saint Louis, Missouri, reposing in each of said
persons full trust and confidence: in trust, however-, for the
following purposes:
"First. I desire and direct my said trustees to assume and
take entire control of my said estate during the term or terms
and under the conditions hereinafter expressed, to collect all
outstanding dues, rents, profits and interests of whatever char-
acter, derived therefrom, and to govern and control all such
interests as may accrue and arise to said estate, from time to
time, and to make such disposal of said estate as shall in their
judgment benefit and increase the value of said estate; and
especially do I design and direct Charles T. Hodges, one
404 Kirkland v. Cox et al. [Jan. T.
Statement of the case.
: *
of my said trustees, to sell all the real estate belonging to me
and situated in the town of Pana, Christian county, Illinois,
in the town of Stanton, Macoupin county, Illinois, and in the
towns of Litchfield, Hillsboro and Walshville, Montgomery
county, Illinois. * * * * * * *
"Second. I desire and direct that said trustees shall pay,
or cause to be paid, out of said estate, to my beloved daughter
and only child, Mary Lucy Walsh, such installments of money
as in the judgment of my said trustees shall be deemed proper
and sufficient to meet her current expenses, and provide her
an ample and comfortable support.
"Third. When my said daughter, Mary Lucy Walsh, shall
arrive at the full age of thirty-five years, and is then unmar-
ried, I desire and direct that my said estate shall be transferred
to her by my said trustees, and ever thereafter said estate shall
vest in her and be under her absolute control.
"Fourth. It is, however, provided that if my said daughter
should, on or before her thirty-fifth birthday, become married
to a person who shall be deemed and considered by my said
trustees as a person worthy and competent, and in whom con-
fidence can be reposed, then said trustees shall, so soon as they
become satisfied that such person is so worthy, place the whole
of said estate under the control of my said daughter, and ever
thereafter said estate shall be vested in her name, and under
her absolute control forever.
"Fifth. In case said daughter shall be, at her thirty-fifth
birthday, married to a person whom said trustees shall consider
and deem incompetent and unworthy, and not a suitable per-
son who should have any care or control of said estate as hus-
band, then said estate shall continue and remain vested in
said trustees in trust; and I desire and direct said trustees to
continue to make payments to said daughter, in such amounts
and at such times as in their judgment they may think proper,
and the circumstances and station of said daughter may de-
mand; and in case of the death of such husband, said estate
1880.] Kiekland v. Cox et al. 405
Statement of the case.
, — y
shall vest absolutely in and be under the control of said
daughter, provided she shall be of the age of thirty-five years.
•■_£* *1* «J^ *1* *1* *1* *4* *&* ^^
>y* <f* ^j> *|> <f* <f* *T* *T* *V*
"Seventh. In case my said daughter shall die without issue,
it is my wish and will, and I hope it may meet with her appro-
bation, that the whole of my said estate shall be disposed of
as follows, viz:" Then follow certain specified legacies to
individuals, amounting, in the aggregate, to $2600, after which
is the following: "The balance of my estate, upon the hap-
pening of such contingency, viz: the death of my daughter
without issue, I wish divided equally between the 'House of
the Good Shepherd/ situated in the city of St. Louis, State
of Missouri, ' Saint Joseph Male Orphan Asylum/ Washing-
ton City, District of Columbia, and ' Saint Ann's Infant Asy-
lum/ of Washington City, District of Columbia."
The will then exempts the trustees from personal liability
for losses occurring without their fault, and appoints them
also to be executors of the will.
It is also further shown by the stipulation, that Charles T.
Hodges, only, qualified and took upon himself the duties, etc.,
of trustee and executor under the will, — the other parties
named declining to act, — and he continued to so act until the
13th day of May, 1876, when he died, and he was thereafter
succeeded by appellant, to whom letters of administration
de bonis non, with the will annexed, were duly issued ; that
appellant does not claim title to the lands in controversy, but
claims to hold possession of and control the same for the
benefit of the devisees of said will, and that he refused to
deliver up possession of the premises to the plaintiffs when
they demanded the same of him before the commencement of
this suit, and that he is now, and at the commencement of
this suit was, in the actual possession of said premises.
It was admitted that the St. Ann's Infant Asylum, and St.
Joseph Male Orphan Asylum, were duly incorporated by
acts of Congress, and are located in Washington City, D. C,
and that the House of the Good Shepherd was duly incorpo-
406 Kirkland v. Cox et til. [Jan. T.
Brief for the Appellant.
rated under the laws of Missouri, and is located in the city
of St. Louis, in that State, and, also, that these three devisees
are now carrying on the objects for which they were incorpo-
rated.
The other facts established on the trial are not deemed of
any importance in elucidating the question upon which the
case turns in the opinion of the court.
Mr. Alex. J. P. Garesche, and Mr. E. Lane, for the
appellant:
If the legal title or fee is in the trustee appointed in the
will, the plaintiffs can not maintain this action.
There can be no question that during the life of Mary L.
Walsh, the beneficiary under the will, the fee in these prem-
ises was in the trustee, and being in him at one time, how and
when he became divested of the legal title is the question
that must be answered by the plaintiffs.
Washburn on Real Property, vol. 2, page 489, states the
law to be, that a trustee can only be divested of his right of
possession by a decree of a court of equity. An action of
ejectment will not lie against a trustee.
Perry on Trusts says, sec. 228 : " It is the duty of the trus-
tee to defend and protect the title to the trust estate ; and as
the legal title is in him, he alone can sue and be sued in a
court of law. The cestui que trust, the absolute owner of the
estate in equity, is regarded in law as a stranger."
In the case of Richeson v. Ryan et al. 15 111. 13, it is held
by this court that if the legal title is in a trustee, he alone
should recover. See also Smith v. Ramsey, 1 Gilni. 377 : " If
the trustee dies," as did Hodges in this case, "the estate will
descend, charged with the trust, to his heir." And in Wash-
burn on Real Property, vol. 2, page 467, it is said: "It
should, however, be borne in mind that at common law, upon
the death of a trustee, his estate descended, charged with the
trust, to his heirs."
1880.] Kirkland v. Cox et al. 407
Brief for the Appellant.
Perry on Trusts sums it up in this language, sec. 343 :
"Therefore, upon the death of one of the original trustees,
the whole estate, whether real or personal, devolves upon the
survivors, and so on to the last survivor ; and upon the death
of the last survivor, if he has made no disposition of the
estate by will or otherwise, it devolves upon his heirs, if real
estate; and upon his executors or administrators, if it is per-
sonal estate."
Nor was this trust an executed trust. A trust is said to be
executory when some further act is necessary to be done by
the trustee to give effect to it, and a trust is said to be executed
when no act is necessary to be done by the trustees to give it
effect; but in equity a trust can never be regarded as executed
if it would defeat the plain intention of' the testator.
Here, the legal estate was transferred to trustees for them
to act, — that is, to collect rents, take charge of the estate, and
do in general what might to them seem best for the interests
of the estate, paying annually the current expenses of Mary L.
Walsh, and upon her death without issue to pay certain spe-
cific legacies, the balance of the estate to be "divided equally"
between the three residuary legatees and devisees. Some act
was to be done, and to be done by the trustee of the estate,
and doubly so if there are charities to be administered by the
courts through the instrumentality of a trustee.
The rule is the same whether the act to be done is directed
by the will or by a court of chancery. See Edmonson and
wife v. Dyson, 2 Kelly, page 307, where this whole question
is fully considered. The trust can not be considered as exe-
cuted as long as some act is to be done by the trustee. What
evidence can be found in this record that a single one of these
legacies is paid ?
" The test of an executory trust is that the trustee has some
duty to perform, for the performance of which it is necessary
that the title be regarded as abiding in him. Here nothing
could be plainer than that the trustee could not perform the
trusts conferred on him without retaining; the title of the
408 Kirkland v. Cox et al. [Jan. T.
Brief for the Appellees.
property." In the case at bar, how could the trustee perform
the trust imposed upon him without retaining the estate?
But it may be insisted that he could retain the estate until
these special legacies were fully paid, and then, as the foreign
corporations could not take at law, this real estate descended
to the heirs, divested of the trust. This can not be. The
law is well settled that if the estate and legal title is once
vested in a trustee for a lawful purpose, all unlawful restraints
will fall away and be simply void, leaving the estate well
vested in the trustee. See Perry on Trusts, sec. 738: "Again,
if there is a valid trust joined with a void one, the legal
estate will vest, and the heir or residuary devisee must resort
to a court of equity" Willett v. Sandford, 1 Yes. Sen. 186;
2 Jarman, 207.
The legal title certainly vested in the trustee when he held
the estate in trust for Mary L. Walsh, and, in the event of
her death, for the other legatees; and having once vested, the
only way it can be divested, if the instrument itself does not
direct how it is to be divested, is by a bill in chancery or by
a conveyance from the trustee.
Mr. James M. Truitt, and Messrs. Rice & Miller, for
the appellees:
The sole trustee, who acted under the appointment in the
will, is dead, and appellant's counsel contend that the legal
title is in the heirs-at-law of that trustee, and for that reason
the appellees can not recover in this action. We insist the
legal title was never in the trustee.
In endeavoring to ascertain just what estate a trustee does
take by a devise, we understand the first leading rule to be
that " trustees must, in all cases, be presumed to take an
estate commensurate with the charges or duties imposed on
them." A second rule of equal force is that " trustees must
not, in general, be allowed by mere construction or implica-
tion to take a greater estate than the nature of the trust
demands; for this would disinherit the heir, which is always
1880.] Kirkland v. Cox et al. 409
Brief for the Appellees.
as far as possible to be avoided." The. Law of Trusts and
Trustees, by Tiffany & Bullard, 788, 789.
Hence the estate of trustees would be confined and re-
stricted to such a partial or less extensive interest (than that
indicated by the language of the trust) as would be sufficient
to carry out the purposes of the trust. Hill on Trustees,
2 Am. ed., sec. 239, and cases cited; the Law of Trusts and
Trustees, by Tiffany & Bullard, 1 ed., p. 791, and cases cited.
Therefore, if there be a devise to trustees, without any
words of limitation or a fortiori to trustees, their executors,
administrators and assigns, in trust, out of the rents and
profits, to pay debts or legacies, and if, from the amount or
nature of the payments to be made, as well as the general
scope of the trust, the payments may well be discharged by
an annual perception of the profits, and no sale or other anti-
cipation of the income is necessary for that purpose, the
authorities, without exception, establish that the trustees will
take only a term of years sufficient for raising the required
moneys, and no estate of inheritance will vest in them. And
the fact of the devise being to the persons who are appointed
executors would seem to be in favor of this construction.
Hill on Trustees, 2 Am. ed., top p. 349, and cases cited.
A devise to trustees without the addition of any words of
limitation, in trust to pay the rents and profits to a person or
persons for life, followed by a gift of the estate over, will give
the trustees an estate during the life of the cestui que trust for
life, as we have already seen that a devise to the trustees and
their heirs in a similar trust will be cut down into a life estate.
And a similar devise to trustees in trust for an individual
until of age, or any other specified age, will give them a
chattel interest only determinable upon the cestui que trusts
attaining that age or dying before. Hill on Trustees, 2 Am.
ed., top p. 350 ; Doe v. Nichols, 1 B. Cr. 336 ; Doe v. Ewart,
7 Adol. & El. 336-7 ; Shapland v. Smith, 1 Bro. C. C. 75.
Trustees may take only a chattel interest in real estate
although limited to them and their heirs, as, where they are
410 Kirkland v. Cox et al. [Jan. T.
Brief for the Appellees.
to hold it in trust only for a short time to pay debts and
legacies and convey it to the cestui que trust when he comes
of age, and this construction will be much stronger if the fee
is not limited to them. Perry on Trusts (1st ed.) sec. 316.
A trust to preserve contingent remainders without limita-
tion to heirs will not be enlarged, for the trust does not re-
quire an estate of inheritance. Thong v. Bedford, 1 Bro, Ch.
14; Webster v. Cooper, 14 How. 499 ;, Beaumont v. Salisbury,
19 Beav. 198; Coke on Lit. 290, b. Butl. n. 8.
Applying these propositions of. law to the facts of this case
and we conclude that the legal estate in the lands never did
vest in the trustee.
But if we concede that the legal estate was in Charles T.
Hodges at the time of his death, as claimed by appellant,
still we are unable to see how that will help them, because
we understand that on the death of Mary Lucy Walsh the
statute of uses executed the legal title in the three foreign
corporations aforesaid, by virtue of whose right appellant
holds possession, if they could take under the will, and if
they could not take, then the statute executed the legal title in
appellees. In either event the legal title is not now and
never has been in the heirs at law of Mr. Hodges. "Thus,
where an estate is given to trustees and their heirs, in trust to
pay the income to A during her life, and at her decease to
hold the same for the use of her children or heirs, or for the
use of other persons named, the trust ceases upon the death
of A, for the reason that it remains no longer an active trust;
the statute of uses immediately executes the use in those who
are limited to take it after the death of A, and the trustees
cease to have anything in the estate, not because the court
has abridged their estate to the extent of the trust, but be-
cause, having the fee or legal estate, the statute of uses has
executed it in the cestui que trust." Perry on Trusts, sec. 320;
Parker v. Converse, 5 Gray, 336; Greenwood v. Coleman, 34
Ala. 150; Churchill v. Corker, 25 Ga. 479.
1880.] Kirkland v. Cox et al. 411
Opinion of the Court.
Mr. Justice Scholfield delivered the opinion of the
Court:
In this form of action, since the naked legal title must
control, we thiuk it sufficient to show that title is not in
appellees, and the judgment below can not, therefore, be
sustained.
The rule is, undoubtedly, as claimed by appellees' counsel,
that trustees must be presumed to take an estate only commen-
surate with the charges or duties imposed on them; but this,
however, is subject to the qualification that such presumption
shall be consistent with the intention of the party creating
the trust, as manifested by the words employed in the instru-
ment by which it is created. Doe d. Shelley v. Edlin, 4 Adol.
& El. 582-589, (31 Eng. Com. Law, 143); Doe d. Cadogan
v. Ewart, 7 Adol. & Eh 636, QQ6 ; Doe d.Davies v. Davies, 1
Adol. & El. N. S. 430, (41 Eng. Com. Law, 611).
Under the statute of uses, which is in force here, where an
estate is conveyed to one person for the use of or upon a
trust for another, and nothing more is said, the statute im-
mediately transfers the legal estate to the use, and no trust
is created, although express words of trust are used. Perry
on Trusts, sec. 298. And so we have expressly held. Wit-
ham v. Brooner, 63 111. 344 ; Lynch et al. v. Swayne et al. 83
id. 336.
But this, it will be observed, has reference only to passive
trusts, or what are sometimes termed simple or dry trusts;
and in such cases the legal estate never vests in the feoffee for
a moment, but is instantaneously transferred to the cestui que
use as soon as the use is declared. 2 Blackstone's Com.
(Sharswood's ed.) 331, 332; and Witham v. Brooner, supra.
It is said in Perry on Trusts, sec. 300: "Although it is
probable that it was the intent of the statute [i. e., of uses]
to convert all uses or trusts into legal estates, yet the conve-
nience to the subject of being able to keep the legal title to
an estate in one person, while the beneficial interest should
412 Kiekland v. Cox et al. [Jan. T.
Opinion of the Court.
be in another, was too great to be given up altogether, and
courts of equity were astute in finding reasons to withdraw a
conveyance from the operation of the statute. Three princi-
pal reasons or rules of construction were laid down whereby
conveyances were excepted from such operation : First, where
a use was limited upon a use; second, where a copyhold or
leasehold estate, or personal property was limited to uses;
third, where such powers or duties were imposed with the estate
upon a donee to uses that it was necessary that he should con-
tinue to hold the legal title in order to perform his duty or
execute the power. In all of these three instances courts,
both of law and equity, held that the statute did not execute
the use, but that such use remained as it was before the stat-
ute, a mere equitable interest to be administered in a court of
equity." And again, in sec. 305, it is said: "The third rule
of construction is less technical, and relates to special or
active trusts, which were never within the purview of the
statute. Therefore, if any agency, duty or power be imposed
on the trustee, as, by a limitation to a trustee and his heirs
to pay the rents, or to convey the estate, or if any control is
to be exercised or duty performed by the trustee in applying
the rents to a person's maintenance, or in making repairs, or
to preserve contingent remainders, or to raise a sum of money,
or to dispose of the estate by sale, in all these and in other
and like cases, the operation of the statute is excluded, and
the trusts or uses remain mere equitable estates. So, if the
trustee is to exercise any discretion in the management of
the estate, in the investment of the proceeds or the principal,
or in the application of the income, or if the purpose of the
trust is to protect the estate for a given time, or until the
death of some one, or until division." * * * And again,
in regard to enlarging and extending estates given to trustees,
the same author, in sec. 315, says: "So, if land is devised to
trustees without the word heirs, and a trust is declared which
can not be fully executed but by the trustees taking an in-
heritance, the court will enlarge or extend their estate into
1880.] Kirkland v. Cox et al. 413
Opinion of the Court.
a fee simple to enable them to carry out the intention of the
donors. Thus, if land is conveyed to trustees without the
word heirs, in trust to sell, they must have the fee, otherwise
they could not sell. The construction would be the same if
the trust was to sell the whole or a part, for no purchasers
would be safe unless they could have the fee, and a trust to
convey or to lease at discretion would be subject to the same
rule. A fortiori, if an estate is limited to trustees and their
heirs, in trust to sell or mortgage or to lease at discretion, or
if they are to convey the property in fee, or to divide it
equally among certain persons, for to do any or all of these
acts requires a legal fee." See, also, to the same effect, Hill
on Trustees, (4 Am. ed.) 376; Doe d. Bees v. Williams, 2
Meeson and Welsby (Exch.) 749.
In those cases where the legal fee is not vested in the
trustee, it will, of course, in the absence of a devise prevail-
ing to the contrary, vest in the heir at law. And there are
also cases in which, it having been the duty of the trustee to
convey to the heir at law, it will be presumed, after the lapse
of considerable time, that such conveyance has been made.
Hill on Trustees (4 Am. ed.) 401; Perry on Trusts, sec. 350;
Gibson v. Rees et al. 50 111. 383; Pollock v. Maison, 41 id.
516. But it is not claimed, nor could it be, that there is any
foundation for such presumption in the facts found in this
record.
In Harris v. Cornell, 80 111. 67, it was said, referring to
Hardin v. Osbom, Sept. T. 1875, that it had been held the pur-
poses of a trust having been accomplished, the owner of the
trust became, by operation of law, reinvested with" the legal
title and could sue in ejectment. This was unadvisedly said.
A rehearing was granted in Hardin v. Osbom, and the
opinion therein referred to was withdrawn. In McNab v.
Young et al. 81 111. 11, language of like import as that used
in Harris v. Cornell, supra, was used upon the authority of
the same case, although it is therein erroneously referred to
414 Kirkland v. Cox et tit. [Jan. T.
Opinion of the Court.
as being reported in 60 111. at p. 93. The case there reported,
of that name, does not discuss that or any kindred question.
The true doctrine in regard to active trusts, and that
adhered to by this court, is expressed in Valhtte v. Bennett,
69 111., at p. 636, that where the legal title is vested in the
trustee, nothing short of a reconveyance can place the legal title
back in the grantor or his heirs, subject, of course, to the
qualification that, under certain circumstances, such recon-
veyance will be presumed without direct proof of the fact.
The language of Walsh's will is: "As to my worldly estate,
all the real, personal and mixed, of which I shall die seized
and possessed, * * * I hereby grant, devise, convey and
confirm unto," (naming the trustees) " in trust," etc. He
then directs his said trustees to assume and take entire control
of his estate; to collect all outstanding dues, rents, profits
and interests of whatever character, derived therefrom, and
to govern and control all such interests as may accrue and
arise to said estate from time to time; to make such disposal
of said estate as shall in their judgment benefit and increase
the value of said estate; that said trustees "shall pay, or
cause to be paid, out of said estate," to his daughter, Mary
Lucy, "such installments of money as in the judgment of
said trustees shall be deemed proper and sufficient to meet her
current expenses, and provide her an ample and comfortable
support;" that said trustees should transfer his estate to his
said daughter upon her reaching the age of thirty-five years,
she being then unmarried, but if then married, they are
directed to transfer the estate to her only upon the contin-
gency that they should deem her husband a person in whom
confidence might be placed; but if the trustees should deem
the husband an incompetent and unfit person to have the care
and control of the estate, they are directed to continue to
make payments to his daughter, " in such amounts and at
such times as in their judgment they may think proper," and
that the circumstances and station of his daughter may de-
mand; that in the event of the death of his daughter without
1880.] Kirkland v. Cox et al, 415
Opinion of the Court.
issue, certain specific legacies, amounting to some $2600 in the
aggregate, are given, and the balance of his estate is to be
divided equally between the House of the Good Shepherd,
Saint Joseph's Male Orphan Asylum, and Saint Ann's Infant
Asylum; and he then exempts his trustees from liability for
all losses occurring without their fault.
This very clearly gave the entire control and management
of the estate to the trustees until Mary Lucy should arrive
at the age of thirty-five years — being unmarried; — and she
having died before she reached that age, the control and
management of the estate continued to devolve upon them.
The language employed so plainly conveys this idea, that it
can admit of no controversy.
The power " to make such disposal of the estate as shall/'
in the judgment of the trustees, "benefit and increase the
value of said estate," — as also the duty of paying Mary Lucy
"such installments of money as in the judgment of said trus-
tees shall be proper, and sufficient to meet her current ex-
penses and provide an ample and comfortable support" —
necessarily imply the power to sell the lands and convert
them into money or interest bearing securities; for this
might well, in the judgment of the trustees, benefit and in-
crease the estate, and be essential to make payment of the
sums directed to be paid to Mary Lucy. The power implied
to sell, is to sell the whole title, — and to this is essential the
power to convey that title, requiring, as a condition prece-
dent, a fee simple estate in the trustees.
The property is devised to the trustees to sell and convey,
if they deem it advisable, or to hold and control until it is to
be transferred as directed; and in the contingency that has
arisen, it was intended that it should be the duty of the trus-
tees to make the equal division of the property between the
corporations designated and convey it accordingly, — for the
grant to these corporations is in severalty, and not as tenants
in common, and their title must necessarily rest on the con-
veyance of the trustees.
416 J. & C. R. R. Co. et al. v. Healy et aZ. [Jan. T.
Syllabus.
Whether the corporations can hold or not, is not now ma-
terial. The words of the devise show the intention of the
testator that the trustees should take a fee, whether he was mis-
taken in the law as respects the objects of his intended bounty
or not. The only difference would be, if the corporations
can not take, the trustees, instead of holding the legal title in
trust for them, hold it in trust for the heirs-at-law. Hill on
Trustees, (4 Am. ed.) 208-9.
The legal title, then, being in the trustees, the heirs-at-law
could not maintain ejectment. Perry on Trusts, §§ 17, 328,
520; Hill on Trustees, (4 Am. ed.) 422-3, * 274 ; id. 482,
*317; id. 672, *428; id. 784, *503; Law of Trusts and
Trustees, by Bullard & Tiffany, p. 811.
The judgment of the circuit court is reversed.
Judgment reversed.
Joliet and Chicago Railroad Company et al.
v.
Robert H. Healy et al.
1. Navigable stream — of the "Healy slough" The body of water in Cook
county, in this State, connected with the south branch of the Chicago river,
and known as the "Healy slough," is not a navigable stream, in the sense in
which that term is used in the law, when applied to streams with capacity to
bear the usual products as well as the commerce of the country in suitable
vessels for transportation. So, the public have not an easement over the
"Healy slough" of a character to render a permanent railroad bridge over
the same a public nuisance.
2. Chancery — will not require that to be done which will be unavailing. But,
without reference to the question of the rights of the public, or of riparian
owners, in respect to the navigability of the "Healy slough," where it was
sought by the owner of a lot of ground abutting upon the slough, by bill in
chancery, to compel a railroad company to remove a permanent bridge it had
erected over the same for railroad purposes, and to restore that body of water to
its former condition, by constructing a draw-bridge or otherwise, so as not to
impair its usefulness, and to enable complainants to avail thereof as a means
of communication by vessels from the Chicago river to a canal or slip owned
1880.] J. & C. E. E. Co. et aL v. Healy et al All
Opinion of the Court.
by them, it appeared there was a space of ground, over which they had no
control, intervening complainants' canal and the slough, which cut off the
water connection, so that a swing-bridge over the slough, in place of the per-
manent bridge sought to be removed, would be of no avail to them for the
purpose alleged. It was held, a court of chancery would not grant the prayer
of the bill to do so useless an act as the removal of the permanent bridge,
inasmuch as such action could result, only in injury and expense to the rail-
road company without any corresponding advantage to the complainants.
3. Equity will not do that which will be of no benefit to the party asking
it, and only a hardship upon the party coerced, — or, as the maxim is, the law
does not require any one to do vain or useless things.
4. Appeal from Appellate Court— whether decree appealed from is final.
Where the Appellate Court reverses the decree of the trial court, and remands
the cause with specific directions as to what decree shall be entered, so that
nothing remains to be done in the court below other than to carry into effect
the mandate of the Appellate Court, the decision of the Appellate Court will
be considered so far final that an appeal will lie therefrom to this court.
5. Same — finding of facts — whether conclusive on this court. The provisions
of the Practice act making the findings of fact by the Appellate Court conclu-
sive on error or appeal to this court, have no application to chancery causes.
In such cases this court will review the evidence as to facts found which con-
stitute the basis of the decree.
Appeal from the Appellate Court for the First District;
the Hon. Theodore D. Murphy, presiding Justice, and Hon.
Geo. W. Pleasants and Hon. Joseph M. Bailey, Justices.
Mr. C. Beckwith, and Mr. Geo. W. Smith, for the appel-
lants.
Mr. J. P. Bonfield, for the appellees.
Mr. Justice Scott delivered the opinion of the Court:
This case has been elaborately argued in every phase it pre-
sents, but the view we have taken may be shortly stated. It
is a bill filed by the owners of a lot abutting on what is called
"Healy slough," and its object is to secure the removal of a
permanent railroad bridge constructed by the Chicago and
Alton Railroad Company over the body of water bearing that
name. The theory on which the bill is framed is, that the
body of water spanned by the bridge is navigable, in the
24—94 III.
418 J. & C. E. K. Co. et al. v. Healy et al [Jan. T.
Opinion of the Court.
sense that term is used in the law when applied to streams
with capacity to bear the usual products as well as the com-
merce of the country in suitable vessels for transportation,
and heuce the public have an easement over it, and any ob-
struction therein becomes a public nuisance; and on account
of the situation of complainants' property they insist they
have sustained damage of a special and peculiar nature, which
will enable them to bring the bill in their own name.
On the hearing in the circuit court the bill was dismissed
for want of equity, but on the appeal of complainants to the
Appellate Court that decree was reversed, with directions to
the circuit court to decree in conformity with the prayer of
the bill, and giving specific directions as to what decree should
be entered.
As nothing remained to be done in the court below other
than to carry into effect the mandate of the Appellate Court,
an appeal has been brought directly to this court, and that,
under the statute, is allowable, as it is a case in which an
appeal lies to this court.
It is suggested that, as the Appellate Court must have
found this body of water was navigable in fact, such finding
is conclusive, under the statute, on this court; and on this
branch of the case it would only remain to ascertain whether
it was navigable in law.
We have had occasion frequently to say, and quite recently
in Fanning v. Russell, ante, p. 386, the provisions in the Practice
act making the findings of fact by the Appellate Court con-
clusive on error or appeal to this court, have no application
to chancery causes, and that it is the duty of this court, as it
was before the passage of that act, to review the evidence as
to facts found which constitute the basis of the decree.
The question made may be treated simply as a question of
fact, viz: is the body of water spanned by the railroad bridge
navigable, in the sense that term is used in the law? We think
it is not. It will not be necessary, therefore, to consider when
1880.] J. & C. R. R. Co. et al. v. Healy et al 419
Opinion of the Court.
a stream is deemed navigable in law, either at the common law
or under the American decisions.
One allegation in the bill upon which the right to relief is
based, is that the " Healy slough," so called, is a natural stream
of water rising far to the south-west of the premises, running
north-easterly toward the same, and, curving to the north,
crosses Archer avenue in nearly a northerly direction, forms
the westerly boundary of the premises, and empties into the
south branch of the Chicago river, — the " Healy slough"
being an arm branch and affluent of the south branch, and
thereby connecting with the canal and with Lake Michigan,
and being one of the navigable waters falling and leading
into the St. Lawrence river through the Chicago river, Lake
Michigan and other great lakes.
Another ground is, that the Joliet and Chicago Railroad
Company, that originally constructed the road now operated
by the lessee company, was obligated by its charter, whenever
it became necessary to cross any water course in constructing
its road, to restore such water course to " its former state, or
in a sufficient manner not to impair its usefulness," and as
the Chicago and Alton Railroad Company has succeeded
under a perpetual lease to all the rights of the former com-
pany, the same obligation rests upon it in that respect.
But as it does not appear either railroad company has done
anything to impair the usefulness of the water course other
than to construct the bridge across it, which does not mate-
rially change it from its former state, the injury will be
narrowed to the consideration of the first ground of relief
mentioned.
Plats found in the record show with sufficient distinctness
the situation of complainants' land, the location of the rail-
road bridge with reference to the water course crossed, and the
length of the slough from its confluence with the river to the
bridge on Archer road. These are matters of measurement
mostly, about which there can be no disagreement. The
ancestor of complainants, in 1837, acquired a right of pre-
420 J. & C. E. E. Co. et al v. Healy et al. [Jan. T.
Opinion of the Court.
emption to lot 6, block 1, in the canal trustees' subdivision
of the south fractional part of section 29, except one-half
acre of equal width across the north side of lot 6, owned by
Hough; and one lot on Lime street, south of Hough's tract,
fifty feet wide by one hundred feet deep, owned by Stevens,
as more definitely appears on the plat attached to the bill;
and in 1855 he obtained a deed from the trustees by which
he acquired the title in fee to the property now owned by
complainants. The lot or piece of land described lies between
the railroad bridge and the bridge on Archer road. Both of
these bridges, as now constructed, are permanent structures.
Archer road was laid out by the canal trustees in 1836, before
complainants' ancestor had obtained any interest in the land
they now own, and was indicated on the plat made by them,
which was on record. It is now a principal street in the city
of Chicago, and is called Archer avenue. It is south of the
railroad, and the distance between the two bridges is about
two hundred and eighty-five feet. From the railroad bridge
north to the junction of the slough with what is called the
south branch of the Chicago river, is about three hundred
and eighty-two feet. All the land on either side of the
slough, north of that owned by complainants' ancestor was
platted into lots by the canal trustees and sold to other par-
ties, but it was mostly owned by Brainard, Evans and the
Houghs.
The original track of the railroad was constructed across
lands owned, at the time, by Daniel Brainard and John
Evans, under a special agreement made March 12, 1858. By
that the owners granted to the railroad company a right of
way eighteen feet wide, across lots by them respectively
owned, on condition the railroad company would construct
and maintain two swing draw-bridges, — one across a slip or
canal to be excavated between lots two and three, and the
other across a similar slip or canal to be excavated near the east
line of lot one, both to be so constructed as to admit the easy
passage of vessels. The east end of lot one rests on the
1880.] J. & C. E. E. Co. et al v. Healy et at 421
Opinion of the Court.
u Healy slough." The railroad company complied with that
agreement, and constructed swing draw-bridges at both points
indicated.
After the incorporation of the Chicago and Alton Eailroad
Company, and after it became the owner of the privileges and
property of the Joliet and Chicago Eailroad Company, the
former company made separate agreements with Brainard and
Evans, by which each of them released the railroad company
from the obligation to maintain a swing draw-bridge across
the slip or canal to be excavated at the east end of lot one,
and each conveyed to the company twelve additional feet of
ground on the south side of the right of way first granted,
making the entire right of way thirty feet wide. These
releases and additional conveyances were upon conditions
that were complied with. Afterwards, in 1865, the railroad
company removed the old draw or swing bridge and erected
the present permanent structure on their own right of way,
as they insist.
The evidence as to the character of the body of water called
the " Healy slough" is only conflicting as to the depth of the
water it contained in its natural state. As to its width and
length there is not much disagreement. Its average width is
from 75 to 100 feet, and its length does not much exceed one-
half mile. Witnesses do not agree in their definitions of it.
Some designated it as a "stream," others as an "arm" of the
south branch, others as a " bayou" of the south branch, as the
Chicago river, so called, is itself a bayou of the lake, and one
witness speaks of it as an "estuary." It is certain it is not
a "stream," as that term is usually understood. It is fed by
no springs or small streams having any permanent or continu-
ing source. Originally it did, and it may yet, receive the usual
drainage of the adjacent country at its head — the quantity, of
course, depending on the rainfall. A "stream" involves the
idea of a current. This slough never had any current unless
affected by high waters, or the rise and fall of the river as it
was affected by the lake. It had no flow of water from its
422 J. & C. R. R. Co. et al. v. Healy et al. [Jan. T.
Opinion of the Court-
head. JSTo matter what name is given to it, — whether it is
called a "bayou," an "arm," a " stream," a "branch," an
"affluent," or an " estuary,"— it is simply a depression, or
basin, in the adjoining land filled with water from the south
branch, as that is filled with water from the lake. The depth
of water in it always depended on the water in the river, and.
the depth of the water in the river was higher or lower as the
lake rose or fell. That fact has given rise to the contradic-
tory testimony given. All the witnesses agree that the depth
of the water in the river is affected by the winds off the lake,
and perhaps other causes, and the difference at times is very
considerable. That light-draft freighting vessels did make
trips up the slough as far as the stone quarry, south of where
Archer bridge is now situated, is proven, but that it was ever
navigable for the usual vessels in any carrying trade is not
proved. The boating that was done there was confined prin-
cipally to one brief season, and that was before the Archer
bridge was erected. The weight of the testimony is, that this
slough was never navigable, even for the vessels of light draft,
as the term navigable is usually understood in this country.
As early as 1836, State, or Archer, road was laid out under
the authority of State officers, and a permanent bridge erected
where it crosses the slough. Since then it is not claimed that
vessels of any kind have passed the bridge.
There were a number of sloughs similar to the "Healy
slough" on the south branch, and all of them spanned by
bridges on the tow-path. Most of them have since disap-
peared. In 1848 a bridge was built over the "Healy slough,"
at its junction with the river, for a tow-path for the use of
the canal. It was continued about a year, and was then re-
moved— not because it obstructed a navigable "stream" or
body of water, but because other means were adopted to tow
in canal boats. Considering the length of the slough and the
depth of the wrater it usually contained, it can not be main-
tained that the public ever acquired an easement over it as on
a highway on a navigable stream bearing the products of the
1880.] J. & C. K. E. Co. et al. v. Healy et al 423
Opinion of the Court.
vicinity and the commerce of the country at large. Neither
the action of the State officers, when the State was the sole
proprietor of the lands on both sides of the slough, nor the
action of the original riparian owners, is consistent with any
such theory. They treated it as private property, as it was.
Since it has been dredged and excavated between the railroad
bridge and the river, vessels may enter and depart, but never
before, except very light draft vessels, and then, no doubt,
under the most favorable circumstances, when the water was
unusually high on account of the action of the lake. It does
not appear that in the original survey the borders of the
slough were meandered, as would doubtless have been done
had it been considered a navigable body of water by the gov-
ernment surveyors. Since it has been excavated by the ripa-
rian owners, it is as much private property as any slip or
canal excavated upon other lands adjacent to the river would
be, and there could be no easement over it in favor of the
public.
There is another view that may be taken. The evidence
in this case warrants the same conclusion that was reached in
Schceneman's case, 90 111. 258. Substantially the same testi-
mony was submitted in both cases. It was there said: "The
evidence shows that the canal, or slip, excavated by Brainard
and Hough from the river south, does not extend to the right
of way of the railroad, so that if the excavation which appellees
have made south from the right of way should be extended
north through the right of way, it would not then reach the
canal, or slip, on the north, but there would be a space of
ground intervening which appellees have no right to inter-
meddle with. They would have no continuous canal, or slip,
to the river, and theirs would be useless, and the construction
of a swing or draw-bridge would be of no benefit to them."
It is distinctly made to appear there is not now a continu-
ous canal, or slip, from the river 'south to Archer road, navi-
gable for vessels of any description, if the railroad bridge
were out of the way; and as Brainard and Hough bound
424 Curyea v. Beveridge et al. [Jan. T.
Syllabus.
themselves, in their agreement with the railroad company,
that their slip should not be excavated farther south, it is not
probable there will be any canal, or slip, constructed that would
give complainants ingress and egress to and from the river;
and of what avail, then, would a swing-bridge be to complain-
ants, should the railroad company be compelled to establish
and maintain one where their permanent bridge now is?
As we have seen, without excavation vessels could not pass
over the strip of land between the right of way and the
Brainard and Hough slip; and as that is private property,
complainants may not intermeddle with it. A swing-bridge
at the point indicated would not serve any useful purpose, so
far as now appears, and would be a great detriment to the
defendants. Equity will not do that which will be of no
benefit to the party asking it, and only a hardship upon the
party coerced, or, as the maxim contained in the old books is,
the law does not require any one to do vain and useless things.
The decree of the Appellate Court will be reversed, and the
cause remanded with directions to affirm the decree of the
circuit court dismissing the bill for want of equity.
Decree reversed.
George Curyea
v.
Thomas Beveridge et al
1. Partnership — right to an accounting. A bill by a partner filed before
the end of the term the partnership was to run, alleged violations of the part-
nership contract, and asked for the dissolution of the partnership, and that
an account be taken. During the pendency of the suit the term of the partner-
ship expired. A supplemental bill was filed by leave, stating this fact, and
charging a misappropriation of the partnership assets by the defendants, and
asking for an accounting between the partners. Answers were filed to both bills,
and replication thereto, and proofs were taken and the cause referred to a mas-
ter, who made a report showing there was due to the complainant from one of
the other partners several thousand dollars, and considerable amounts due
1880.] Cukyea v. Beveeidge et ah 425
Opinion of the Court.
— — — ■*-
the firm. The court on the hearing, without any exception having been taken
to the report, dismissed the bills: Held, that the complainant was entitled to
a decree settling the accounts and providing for the disposition of the effects
of the firm, and that the court erred in dismissing the bills.
2. Chancery practice — master's report. If there is no ground for setting
aside a master's report on a bill to adjust partnership accounts, a decree
should be entered upon it, and if otherwise, the report should be set aside, and
the matters again referred to the master to state the account correctly.
Appeal from the Circuit Court of Moultrie county; the
Hon. C. B. Smith, Judge, presiding.
Mr. Anthony Thornton, for the appellant.
Mr. Justice Dickey delivered the opinion of the Court:
It is not perceived upon what ground the bill in this case
was dismissed by order of the court.
Curyea and defendants were partners when the bill was
filed. The bill originally alleged violations of the partner-
ship contract, and asked that the partnership be dissolved
and an account taken. The term for which the partnership
was to run elapsed while the trial was pending. A supple-
mental bill was filed, by leave, stating this fact and charging
a misappropriation of partnership effects by the defendants
after the suit was begun, and asking for an accounting be-
tween the partners. This and the original bill were answered,
replication filed, proofs taken, the cause referred to a master,
a report made, and then on a hearing the bill was dismissed.
No exception appears to have been taken to the master's
report. By that report there seems to have been due to com-
plainant, as one of the partners, several thousand dollars,
from one of the other partners ; and divers parties who had
received certain parts of the partnership goods are shown to
be respectively debtors to the firm in considerable amounts.
It would seem that if there be no ground for setting aside
the master's report a decree should have been entered upon it,
and if otherwise, the report ought to have been set aside, and
the matters referred to the master to state an account cor-
426 Wilson et at. v. The People. [Jan. T.
Opinion of the Court.
rectly between the partners. In any event, the complainant
is entitled to an accounting and a decree settling the accounts
and providing for the disposition of the effects of the firm.
The decree must be reversed, and the cause remanded for
further proceedings.
Decree reversed.
Benjamin Wilson et at.
v.
The People of the State op Illinois.
1. Jurisdiction of circuit court — misdemeanors. Section 12 of article 6
of the constitution provides that "the circuit courts shall have original juris-
diction of all cases in law or equity; " — so, those courts have original juris-
diction in cases of misdemeanors, as, for wilfully interrupting or disturbing
an assembly of people met for a lawful purpose.
2. Same — -former decision. In Ferguson v. The People, 90 111. 510, it was
held that the circuit courts did not have original jurisdiction in cases of
assault and assault and battery, it being conferred by statute upon justices
of the peace. But it is not competent for the legislature to deprive the circuit
courts of their original jurisdiction conferred by the constitution in all cases
in law and equity, and in this regard that case is overruled.
Writ of Error to the Circuit Court of Tazewell county ;
the Hon. John Burns, Judge, presiding.
Mr. J. B. Cohrs, and Mr. W. D. Maus, for the plaintiffs
in error.
Mr. James K. Edsall, Attorney General, for the People.
Mr. Justice Craig delivered the opinion of the Court:
The defendants were indicted and convicted under section
60, chapter 38, Eev. Stat. 1874, p. 360, which declares : " Who-
ever wilfully interrupts or disturbs any school or other assem-
bly of people met for a lawful purpose, shall be fined not
exceeding $100."
1880.] Wilson et al. v. The People. 427
Opinion of the Court.
_
The point relied upon to reverse the judgment is, as the
offence for which the defendants were convicted was a mere
misdemeanor, the circuit court had no original jurisdiction of
the offence; that, under a fair construction of sections 381
and 392 of the Criminal Code, jurisdiction in such cases was
conferred upon justices of the peace.
In Ferguson v. The People, 90 111. 510, where the defendants
were indicted for a riot, and one of them convicted of an
assault and battery, it was held, under the sections of the
statute, supra, that the circuit court had no original jurisdic-
tion in cases of assault and battery, it being conferred upon
justices of the peace. In the decision of that case our atten-
tion was not called to article 6, section 12 of the constitution,
which declares that "the circuit courts shall have original
jurisdiction of all causes in law and equity." Under this
provision of the constitution, the legislature had no power to
deprive the circuit courts of such jurisdiction as was expressly
conferred by that instrument. Myers v. The People, 67 111.
501; Weatherford v. The People, id. 520.
It is no doubt true that concurrent jurisdiction may prop-
erly be conferred upon justices of the peace, in misdemeanors,
Avhere the fine does not exceed the jurisdiction of the justice;
yet, as the jurisdiction of the circuit courts has been con-
ferred by the constitution, that can not be taken away.
As the decision in Ferguson v. The People is in conflict
with the views here expressed, it will be overruled.
The judgment of the circuit court will be affirmed.
Judgment affirmed.
428 Ingraham v. The People. [Jan. T.
Opinion of the Court.
William E. Inge a ham
v.
The People of the State of Illinois.
1. Appeals in criminal cases — whether appeal will lie — and to what court.
Under the statutory enactments in force since July 1, 1879, appeals from and
writs of error to the circuit courts, etc., in all criminal cases below the grade
of felony, must be taken directly to the Appellate Court, and not to this court.
2. Prior to the first of July, 1879, an appeal did not lie to this court in a
criminal case.
3. Same — statutes construed. The provisions of section 8 of the Appellate
Court act and section 88 of the Practice act of 1877, that appeals from and
writs of error to circuit courts, and the Superior Court of Cook county and
city courts, might be taken directly to the Supreme Court, in all criminal
cases and cases in which a franchise or freehold was involved, are not to be
construed as giving a right of appeal in a criminal case, but only as allowing
appeals and writs of error to this court in those several enumerated cases
according as appeals and writs of error lay in such cases under the then
existing laws, namely: a writ of error in criminal cases, and in the other
cases named both a writ of error and an appeal, and not requiring those cases
to be first taken to the Appellate Court.
Appeal from the Circuit Court of Adams county ; the Hon.
Joseph Sibley, Judge, presiding.
Mr. A. E. Wheat, and Mr. George Simmons, for the
appellant.
Mr. James K. Edsall, Attorney General, for the People.
Mr. Justice Sheldon delivered the opinion of the Court:
This appeal must be dismissed, as not rightfully taken.
The act amendatory of the Practice act, approved June 3,
1879, (Laws 1879, p. 222,) amends the 88th section of the
Practice act as follows: "Appeals from and writs of error to
circuit courts, the Superior Court of Cook county, the Crim-
inal Court of Cook county, county courts and city courts, in
all criminal cases below the grade of felony, shall be taken
directly to the Appellate Court," etc. This case, being one
of a misdemeanor, comes within this provision.
1880.] Ingraham v. The People. 429
Opinion of the Court.
It is true that the appeal was allowed by the circuit court
on the 4th day of March, 1879, and an appeal bond was filed
on the following 6th day of March, and the act did not go
into effect until July 1, 1879; and had the case been one in
which an appeal lay to this court at the time this one was
allowed, or had the transcript of the record been filed in this
court before July 1, 1879, we might, perhaps, have entertained
jurisdiction.
But the record was not filed in this court until December
31, 1879.
At the time this appeal was allowed by the circuit court, an
appeal did not lie to this court in a criminal case. Although
the 8th section of the Appellate Court act and the 88th sec-
tion of the Practice act of 1877 provided that appeals from
and writs of error to circuit courts, and the Superior Court
of Cook county and city courts, might be taken directly to
the Supreme Court, in all criminal cases and in cases in
which a franchise or freehold or the validity of a statute
was involved, we do not construe those sections as giving
a right of appeal in a criminal case, but only as allowing
appeals and writs of error to this court in those several
enumerated cases, according as appeals and writs of error lay
in said cases, respectively, under the then existing laws, to-
wit: a writ of error in criminal cases, and in the other cases
named, both a writ of error and an appeal, and not requiring
such cases to be first taken to the Appellate Court.
The only mode of removal of a criminal case to the Supreme
Court, at that time, was by writ of error, and the aforenamed
sections made no alteration of the law in that respect. They
were provisions merely regulating appeals and writs of error
as between the Appellate and Supreme courts, prescribing to
which particular court they were to be taken. It was not the
purpose to give a new right of appeal in any case in which an
appeal had not before been given.
Appeal dismissed.
430 Worcester Nat. Bank v. Cheney. [Jan. T.
Opinion of the Court.
Worcester National Bank
v.
Prentiss D. Cheney.
1. Fees — for transcript on appeal or error, when prepared by party himself.
Although a party bringing a cause to this court may himself procure the
transcript of the record in the court below to be made, without the aid of the
clerk of that court, yet if the clerk shall certify thereto as being correct, and
the transcript thus prepared is filed in this court, the party so preparing
the transcript at his own expense will, if successful in this court, be entitled
to his costs therefor the same as if it had been prepared by the clerk.
2. Same — -for making transcript in counties of the second class. Clerks of courts
in counties of the second class, as classified under the constitution for pur-
poses relating to the fees and compensation of certain officers, are limited by
the statute to the rate of ten cents per one hundred words as fees for making
transcripts of records in their offices, and where a party procures his tran-
script to be made himself, he will be entitled to no greater fees therefor than
the clerk could have properly charged for the same service.
3. Judicial notice — as to population of counties. In ascertaining to what
class a county ma}*- belong, under a classification of counties as required by the
constitution, for purposes of regulating the fees and compensation of certain
officers, this court will take judicial notice as to what is the population of a
county according to the preceding United States census.
4. Classification of counties — power of the legislature. It is not compe-
tent for the legislature, in attempting to classify the several counties in the
State, under the constitutional provision in that regard, for purposes of regu-
lating the fees and compensation of certain officers, to place counties in the
several classes, except it be according to population, as limited by the consti-
tution;— and if a county shall be placed in a class to which it does not be-
long, according to the basis of population, the act will be unconstitutional
and void.
This was a motion on behalf of the unsuccessful party in
this suit, the appellee, to quash a fee bill from the office of
the clerk of this court in the Central Grand Division.
Messrs. Robinson, Knapp & Shutt, for the motion.
Per Curiam: This is a motion by the unsuccessful party
to quash the fee bill in the above cause, and to have the costs
1880.] Worcester Nat. Bank v. Cheney. 431
Opinion of the Court.
retaxed. Objection is taken to but a single item, viz : the
sura of $297.50, for making the transcript of the record for
the Supreme Court.
It appears the clerk of the circuit court from which this
case c >mes to this court did not himself make the transcript,
but he did permit counsel for plaintiff in error to have it
prepared at the expense of their client, and when it was com-
pleted it was certified by the clerk as being correct. No fees
were paid to the clerk for that part of the transcript he did
not prepare, but the counsel that had it prepared made a
memorandum on the margin, " transcript fee, $297.50; paid by
appellants." It seems this memorandum was on the tran-
script when the clerk attached his certificate, but it was not
observed by him. He states distinctly he never authorized
any one to make such a memorandum on the record. .
Notwithstanding the transcript was not made by the clerk
having the custody of the records, he adopted the work done
by plaintiff in error by attaching his signature and the seal
of his office to it, and as plaintiff in error paid for the labor
of making the transcript, there is no reason why he may
not recover the statutory fees, the same as the clerk would
have been authorized to charge under the law.
But it is made to appear the sum charged for the transcript
is not authorized by law. It is too high. Greene county, in
which is the original record, as a matter of fact belongs with
counties of the second class, as counties are classed for the
purpose of fixing the fees of county and township officers,
but by the act of 1872 it was erroneously classed with counties
of the first class for that purpose.
Section 12, article 10 of the constitution of 1870, confers
power on the General Assembly to classify counties by popu-
lation into not more than three classes, and to regulate the
fees of certain officers named according to class. That the
legislature undertook to do by the act of 1872, and first
determined that the first class should consist of counties con-
432 "Worcester Nat. Bank v. Cheney. [Jan. T.
Opinion of the Court.
taining a population of not exceeding twenty thousand inhab-
itants, according to the census of 1870; the second class of
counties containing twenty thousand inhabitants and not ex-
ceeding seventy thousand, and the third class of counties
containing a population exceeding seventy thousand inhab-
itants.
We must take judicial notice that by the census of 1870
Greene county contains a population exceeding twenty thous-
and inhabitants, and not exceeding seventy thousand, and
therefore, according to the classification adopted, belonged
to the second class. The legislature possessed no constitu-
tional authority to place Greene county in the first class for
the purpose of regulating the fees and compensation of cer-
tain officers named, and the act to that extent must be held
to be inoperative and void. The act of 1879 has corrected
the mistake apparent in the act of 1872.
Treating Greene county as belonging to the second class,
taking as a standard the census of 1870, as adopted by the
General Assembly, the clerk of the circuit court could only
charge ten cents per one hundred words for making transcripts
of records in his office, and of course plaintiff in error could
recover no greater sum when he does the labor himself by the
permission of the clerk.
The fee bill in this case as to the item mentioned will be
quashed, and the clerk of this court will be directed to retax
the costs of the transcript at ten cents for each one hundred
words it contains.
Motion allowed.
1880.] Mester v. Hauser. 433
Syllabus.
Henrietta Mester
v.
Damon Hauser.
1. Ejectment — plaintiff must recover on his own title. If a plaintiff in eject-
ment recovers at all, it must be on the strength of his own title to the prem-
ises, and not upon any equities another party may have in the subject of the
litigation.
2. Same — attempt to recover under trust deed — of the defence. If the plain-
tiff seek to recover under a trust deed given to secure a debt, he can do so
only upon the same principle a mortgagee can recover the mortgaged prem-
ises,— as a means of obtaining satisfaction of the indebtedness secured by the
mortgage. And if it appear such indebtedness has been paid, or in any way
barred or discharged, the right of entry as for condition broken will also be
barred.
3. So it is competent in such case for the defendant — the grantor in the
trust deed — to show that usurious interest was reserved in respect of the debt
secured by the trust deed, and paid to a sufficient amount to extinguish the
debt so far as there was any legal claim.
4. Witness — competency — party as a witness — capacity in ivhich plaintiff sues.
The trustee appointed in a deed of trust given to secure a debt in favor of
another person, brought ejectment for the premises conveyed, assuming to
sue "for the use of the executor" of the payee of the debt, who had died.
It was held it could not properly be alleged that the plaintiff sued as trustee
"of the heirs, devisees and legatees" of the payee of the debt, or for the "use
of the executor," in any such sense as would render the defendant — the gran-
tor in the trust deed — incompetent as a witness in his own behalf. In such
case it must be regarded that the plaintiff sues in his own right, as holding
the legal title to the property, and it is not to be considered who may be
equitably interested in the estate.
5. Moreover, there was no evidence that there were any "heirs, devisees
or legatees" of the deceased payee, so it did not appear the trustee held any
fiduciary character in respect to such persons; and suing for the "use of the
executor" does not bring the case within any of the exceptions in the statute
affecting the competency of parties to the suit and interested in the event
thereof to testify in their own behalf.
Appeal from the Circuit Court of Adams county ; the Hon.
Joseph Sibley, Judge, presiding.
28—94 III.
434 Mester v. Hauser. [Jaii. T.
Brief for the Appellant.
Mr. Wm. W. Berry, for the appellant:
Tliis was a proceeding to eject Henrietta Mester, the widow
of Carl Mester, from her homestead. Carl Mester, the hus-
band of the defendant, on the 6th day of February, 1868,
executed a deed of trust to secure a note in the sum of $300,
payable to one Zimmerman. Both Mester and Zimmerman
died in the year 1876, and the trustee, Hauser, brings this
suit for the use of Zimmerman's executor. The defendant
joined her husband in the execution of this deed.
The evidence relied upon by the plaintiff, and admitted in
evidence against the objections of the defendant, were the
deed of trust and the note.
The objections to the deed are fundamental:
1. Because no right of entry is contemplated under it or
provided for in it, but simply the exercise of a naked power.
Though the grant in fee may be found in terms in the instru-
ment, it is by subsequent language so effectually qualified,
that it is manifest they were only employed to enable the
party clothed with the power to exercise it. The phraseology
is that found in the ordinary forms of deeds of trust. In
the event of default in the payment of the debt, the trustee
is authorized, not to enter, but to sell and convey, and after
paying the debt to hand over the balance to the maker of the
deed. He is trustee not merely for the holder of the note,
but for the grantor also. What a perversion of the trust,
then, would it be to seize the entire estate and transfer it
wholly to one of the beneficiaries to the exclusion of the
other.
2. Whatever the trustee might have done in the exercise
of his office during the life of the grantor, his functions by
operation of law (Rev. Stat. ch. 95, sec. 13,) were absolutely
extinguished at the grantor's death.
3. Had a stranger been the defendant, the mere introduc-
tion of this deed of trust would not have entitled the plain-
tiff to a verdict; the relation of the defendant to the instru-
ment was simply as a releaser of dower and homestead rights,
1880.] Mestek v. Hauser. 435
Brief for the Appellee.
and not at all as a party directly connected with the title,
and, therefore, to have recovered against her, the same strict-
ness of proof as to title should have been required as there
would have been had the suit been against a stranger.
The defence relied upon was that the debt was discharged;
that the loan for which the note was given was at an usurious
rate of interest, and that sufficient usurious interest had been
paid to amount to the principal of the note, except as to
$14.40, which sum had been tendered before the commence-
ment of this suit to Mrs. Hunnerwadel, the holder of the
note, who was the daughter of the payee, and to whom it was
transferred by the payee's executor, the party for whose use
this action is brought.
As to the proof of the usurious contract, Mrs. Mester was
offered as a witness to testify that she was present when the
loan was made; that the rate of interest agreed upon was
twelve per cent, and that two per cent for the first year was
deducted, her husband receiving only $294 instead of $300;
and that she herself had paid the interest for most of the
time between the date of the note and February, 1876, at the
rate of $36 per year. This evidence was excluded, because
the payee in the note was dead, though according to the theory
of the prosecution the title was in Damon Hauser, the real
plaintiff in this proceeding.
The witness was clearly competent, and her testimony
should have been admitted.
Messrs. Arntzen & Moore, for the appellee:
1. The legal title is in the trustee of a trust deed, and he
may maintain ejectment. Johnson v. Houston, 47 Mo. 230;
Reecev. Allen, 5 Gilm. 241, and cases cited; Adams on Eject.
33; 2 Wash, on Real Property, 207; Tiffany & Bullard on
Trustees, 811; 1 Wash, on Real Property, 389; 1 Chitty PI.
189.
2. That the legal title was in the trustee has been held in
the following cases: Farrar v. Payne, 73 111. 90; Vallette v.
436 Mester v. Hauser. [Jan. T.
Brief for the Appellee.
Bennett, 69 id. 632; Dawson v. Uayden, 67 id. 54; Graham
v. Anderson, 42 id. 517.
3. That a mortgagee may bring ejectment has been held in
the following cases: Vanzant v. Allmon, 23 111. 33; Carroll
v. Ballance, 26 id. 17; Delahay v. Clement, 3 Scam. 202; Ed-
ington v. Hefner, 81 111. 342; Kilgour v. Gadding, 83 id. 109;
Oldham v. Peleger, 84 id. 102; Johnson v. IFafeow, 87 id. 540,
541. And there seems to us to be no reason why a trustee
can not maintain ejectment as well as a mortgagee.
4. The legal title being in the trustee, it ought to prevail
as against the equitable defence sought to be interposed in
this case.
The remedy of the defendants, if they had any, was in
equity, and was not available in an action at law.
The trust deed was to be void only upon the payment of
the principal and interest according to the terms of the trust
deed, a condition which has not happened, and therefore the
legal title still remains in the trustee, which can only be di-
vested by a reconveyance or by a proceeding in equity for that
purpose. Vallette v. Bennett, 69 111. 632.
5. The evidence of Mrs. Mester, offered to prove a usuri-
ous contract, was properly excluded by the court. The wit-
ness was the defendant in the action and interested therein,
and the plaintiff sued as trustee of the heirs, devisees and
legatees of Charles A. W. Zimmerman, deceased, the payee
in said note read in evidence, and also sued for the use of the
executor of said Charles A. W. Zimmerman, deceased, who
died prior to the commencement of this suit, and therefore
the witness is incompetent to prove these facts.
The suit is brought for the use of the executor of Charles
A. W. Zimmerman, deceased, which executor is the beneficial
plaintiff, and therefore entitled to the- protection of the stat-
ute. Rev. Stat, 488, sec. 2; Boynton v. Phelps, 52 111. 210.
The plaintiff is the trustee of the heirs, legatees and de-
visees of Charles A. W. Zimmerman, deceased.
The evidence was offered to prove a contract made with
1880.] Mester v. Hauser. 437
Opinion of the Court.
Charles A. W. Zimmerman in his lifetime, who is now dead
and can not contradict the witness, thus bringing the case
within the spirit and meaning of the statute excluding the
evidence. "The statute intends, in allowing a party to be a
witness, that it shall be in cases only where both parties are
upon equal ground." Langley v. Dodsworth, 81 111. 87;
Merrill v. Atkin, 59 id. 20, 21.
Mr. Justice Scott delivered the opinion of the Court:
This was an action of ejectment, brought by Damon Hauser
against Henrietta Mester, to recover possession of the premises
described in the declaration. The only evidence offered by
plaintiff of title in himself was a trust deed made by Carl
Mester, since deceased, in which defendant, then his wife,
joined in its execution for the purpose of releasing her home-
stead and dower, and by which trust deed the premises were
conveyed to plaintiff to secure a note made payable to Charles
A. W. Zimmerman for $300, with interest at 10 per cent per
annum. The payee of the note has since died, and this suit
purports to have been brought for the use of his executor, but
that is a matter of no consequence. If a plaintiff recovers
in an action of ejectment, it must be on the strength of his
own title to the premises and not upon any equities another
party may have in the subject of the litigation.
On the trial defendant offered to prove by her own testi-
mony that in the loan which her husband secured from
Zimmerman, interest was reserved at the rate of 12 per cent
per annum, which her husband agreed to pay, and that at the
time of the making of the note for $300 Zimmerman let him
have but $294, the other six dollars being retained as the 2 per
cent extra interest above the rate named in the note, and that
interest was in fact paid on the note at the rate of 12 per
cent per annum for the several years ending February, 1869,
1870, 1874, 1875 and 1876, by defendant, with money fur-
nished by her husband, viz : $36 for each year named. The
438 Mester v. Hauser. [Jan. T.
Opinion of the Court.
evidence offered was rejected by the court on objection made
by plaintiff, and that decision, we think, was error.
If plaintiff can recover at all under the trust deed in evi-
dence, it must be upon the same principle a mortgagee could
recover the mortgaged premises, viz: as a mode of obtaining
satisfaction of the indebtedness secured. Should it be made
to appear the indebtedness secured was fully paid or in any
way barred or discharged, it is apprehended the right of entry
as for condition broken would also be barred. The evidence
tendered, if admissible, was to show the debt secured by the
trust deed was fully paid, at least all that could be legally
collected. The objection is not so much to the evidence as to
the competency of defendant to testify on her own behalf, and
the reason assigned is, that witness is defendant in the action
and is interested therein, and that plaintiff sues as trustee aof
the heirs, devisees and legatees" of the payee of the note
secured by the trust deed and for the "use of the executor."
The objection can not be maintained. Plaintiff sues in his
own right as holding the legal title to the property, and it is
not a matter that can be considered in this action who may
be equitably interested in the estate. There is evidence the
payee of the note secured is dead, but there is not a particle
of evidence he left "any heir, devisee or legatee." It will be
observed plaintiff sues for the " use of the executor," and
that is not within any clause of the statute that renders the
adverse party incompetent to testify in her own behalf on
account of his interest in the subject matter of the suit. The
exceptions are where the "adverse party sues or defends as
the trustee or conservator of any idiot, habitual drunkard,
lunatic or distracted person, or as the executor, administrator,
heir, legatee or devisee of any deceased person, or as the
guardian or trustee of any such heir, legatee or devisee." It
is not claimed plaintiff sues in any capacity mentioned in the
first or second clauses of the section of the statute cited, nor
can it be said he sues as guardian or trustee of any " heir,
legatee or devisee," for there is no evidence the deceased payee
1880.] Holmes v. C. & A. R. R. Co. 439
Syllabus.
of the note, if the action was on it, left any "heir, legatee or
devisee." There is, therefore, no reason why defendant was
not a competent witness in her own behalf as to matters
about which she offered to testify, notwithstanding her in-
terest in the subject of the litigation.
Whether defendant made a tender of the balance she
alleges was due on the note, is a question of fact that must
be left to the finding of the court below. At most it is a
matter that affects the costs and not the merits of the action.
On account of the error of the court in excluding the testi-
mony offered by defendant, the judgment will be reversed
and* the cause remanded.
Judgment reversed.
George Holmes
v.
The Chicago and Alton Railroad Company.
1. Limitation — saving clause, when plaintiff is non-suited. The clause in
section 24 of the limitation law which provides, that if the plaintiff be non-
suited, and the time limited for bringing the action has expired during the
pendency of the suit, a new action maybe brought within one year after such
judgment against the plaintiff, refers to involuntary non-suits as known to
the common law, and not to voluntary non-suits authorized by our statute.
2. Voluntary non-suit — its effect. Since 1845, a plaintiff may take a non-
suit, but it most usually occurs in the progress of a trial. In either case
there is a judgment against the plaintiff for costs, but the judgment is not in
bar, nor will it preclude him from recovering on the same cause of action. In
this respect it is precisely the same thing, in effect, as a dismissal by the
plaintiff.
3. Non-suit — difference between voluntary and involuntary. A voluntary non-
suit is an abandonment of a cause of action by a plaintiff, and an agreement
that a judgment for costs be entered against him; but an involuntary non-
suit is where the plaintiff neglects to file his declaration or to appear when
called for trial of the case, or where he gives no evidence upon which a jury
can find a verdict in his favor. At common law there could be no non-suit
except on the motion of the defendant.
440 Holmes v. C. & A. E. K. Co. [Jan. T.
Opinion of the Court.
4. Same — involuntary, on the evidence* Where the plaintiff gives evidence
tending to establish his right to recover, the court has no right to take the
evidence from the jury, or to instruct them to find one way or the other; but
if the plaintiff introduces no evidence, and the defendant moves the court for
a non-suit, it may be properly granted, although the plaintiff objects. So, where
the plaintiff may introduce some evidence, and yet it lacks all the essential
elements of proving his right to recover, and wholly fails to make a case, the
defendant may move to exclude it, or move for a non-suit, and if not assented
to by the plaintiff, the court may grant the non-suit, and in such case it would
be involuntary. If the defendant introduces evidence on his part, he can not,
afterwards, move for a non-suit or to exclude all the plaintiff's evidence.
5. Pleading — requisites of special demurrer. It is not sufficient, in a special
demurrer, to assign for special cause in general that the pleading demurred
to is double or lacks form. It must show in what the duplicity consists, or
wherein the form is deficient.
Appeal from the Appellate Court for the Third District;
the Hon. Chauncey L. Higbee, presiding Justice, and Hon.
Oliver L. Davis and Hon. Lyman Lacey, Justices.
Messrs. Bloomfield & Hughes, for the appellant.
Messrs. Williams, Burr & Capen, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court :
The decision of this case turns on the construction of the
24th section of our limitation law. It is this: aIn any of
the actions specified in any of the sections of said act, if judg-
ment shall be given for the plaintiff, and the same be reversed
by writ of error or upon appeal; or if a verdict pass for
the plaintiff, and, upon matter alleged in arrest of judgment,
the judgment be given against the plaintiff; or if the plaintiff
*0n the general subject of an involuntary non-suit, or excluding all the
plaintiff's evidence from the jury, see Hunt v. Morton, 18 111. 75, Felt v. Wil-
liams, 1 Scam. 206, Owens v. Derby, 2 Scam. 26, Gillham v. Stale Bank, ibid.
250, Amos v. Sinnott, 4 Scam. 447, Joseph v. Fisher, 3 Scam. 137, Williams v.
Clayton, 1 Scam. 502, Phelps v. Jenkins, 4 Scam. 51, Davenport v. Gear, 2 Scam.
496, The People v. Browne, 3 Gilm. 88, Downey v. Smith, 13 111. 673, and Hubner
v. Feige, 90 111. 208, and note to this last case on p. 209.
1880.] Holmes v. C. & A. R. R. Co. 441
Opinion of the Court.
be non-suited, — then, if the time limited for bringing such
action shall have expired during the pendency of such suit,
the said plaintiff, his or her heirs, executors or administrators,
as the case shall require, may commence a new action within
one year after such judgment reversed or given against the
plaintiff, and not after."
This was an action on the case, brought within two years
after the action accrued, but plaintiff voluntarily took a non-
suit, and afterwards brought this action within one year after
the judgment of non-suit was rendered. To this action de-
fendant pleaded the Statute of Limitations of two years.
To this plea plaintiff replied as follows:
"As to the plea by defendant, secondly above pleaded,
plaintiff says precludi non, because he says that the said cause
of action in said declaration mentioned accrued to the plaintiff
on the 13th day of June, A. D. 1875; that on the 11th day
of November, A. D. 1876, he filed in said court his declara-
tion thereof, setting out said cause of action; that on the 27th
day of September, 1877, he, the plaintiff, was non-suited, and
that afterwards, on the 26th day of November, 1877, and
within one year after said non-suit, he, the said plaintiff, filed
his declaration herein,-— and of this he puts himself upon the
country," etc.
Rejoinder of defendant to this plea:
" Defendant says actio non, because it says that the time
when, etc., the said plaintiff was not non-suited, as in and by
said replication set forth; but the said plaintiff, at the time
when, etc., voluntarily dismissed his said suit, — and this the
defendant is ready to verify, wherefore he prays judgment,"
etc.
Plaintiff filed a general and special demurrer to the rejoin-
der, because, first, said rejoinder is double; second, it tenders
an immaterial issue as to the voluntary non-suit in said suit;
third, it should conclude to the country; fourth, the averment
as to the plaintiff voluntarily dismissing his suit is surplusage.
The demurrer was overruled.
442 Holmes v. C. & A. E. E. Co. [Jan. T.
Opinion of the Court.
This presents the question, whether a voluntary non-suit
was intended to be embraced in this section. Both parties
agree that an involuntary non-suit is provided for, and appel-
lant contends that a voluntary non-suit is equally embraced.
This is controverted by appellee.
That a reversal by writ of error or upon appeal is intended
to embrace involuntary reversals, seems to be apparent; and
the same is true of an arrest of plaintiff's judgment. We
presume it will not be contended that a reversal on confession
of errors by a plaintiff was intended to be embraced, nor that
a consent that the judgment might be arrested would entitle
him to the benefit of this statutory provision. Then, what
force is to be given to the words, "if the plaintiff be non-
suited?" It is not, if he shall dismiss his suit, or shall ask
for and take a non-suit The law always, since 1845, per-
mitted a plaintiff to take a non-suit, and a dismissal and a
non-suit taken by a plaintiff are precisely the same thing in
effect, unless it be different under this section. The plaintiff
may, no doubt, dismiss his suit at any time when court is in
session, and may, since 1845, take a non-suit in the same
manner, but it most usually occurs in the progress of a trial.
In either case there is a judgment against the plaintiff for
costs, but the judgment is not in bar, nor will it prevent him
from again suing and recovering on the same cause of action.
The import of the language seems to oppose the idea of
voluntary action on the part of plaintiff.
In Jacobs' Law Diet. vol. 4, p. 407 (first Am. from second
Lond. ed. 1811), it is said: "A non-suit can only be at the
instance of the defendant, and, therefore, when the cause at
nisi prius was called on and the jury sworn, but no counsel,
attorneys, parties or witnesses appeared on either side, the
judge held, that the only way was to discharge the jury, for
nobody has a right to demand the plaintiff but the defendant,
and the defendant not demanding him, the judge could not
order him to be called." And the rule seems to be fully
sustained by the case of Arnold v. Joh?isonf 1 Strange, 267.
1880.] Holmes v. C. & A. E. E. Co. 443
Opinion of the Court.
Again, in Coke upon Lit. 139 b, it is said: "At the common
law, upon every continuance or day given over before judg-
ment, the plaintiff might have been non-suited, and therefore,
before the statute of 2 H. 4, after verdict given, if the court
gave a day to be advised, at that day the plaintiff was de-
mandable, and therefore might be non-suited."
It is said by Blackstone, vol. 3, p. 296 : " For if the plain-
tiff neglects to deliver a declaration for two terms after
defendant appears, or is guilty of other delays or defaults
against the rules of law in any subsequent stage of the action,
he is adjudged not to follow or pursue his remedy, as he ought
to do, and thereupon a non-suit or non prosequiter is entered,
and he is said to be non pros' 'cL" But if the defendant fails
to avail of the advantage of the plaintiff's neglect by signing
such a judgment, the plaintiff may, at any time within a year
after the return of the writ, deliver a declaration. Pinny v.
Harvey, 3 T. E. 123, announces this rule: " Again, judgment
of non-suit may pass against the plaintiff, which happens
when, on trial by jury, the plaintiff, on being called or de-
manded at the instance of the defendant, to be present in
court while the jury give their verdict, fails to make his ap-
pearance. In this case no verdict is given, but judgment of
non-suit passes against the plaintiff. So if, after issue joined,
the plaintiff neglects to bring such issue on to be tried in due
time, as limited by the course and practice of the court in the
particular case, judgment will also be given against him for
this default, and it is called judgment as in case of non-suit."
Stephen on Pleading, 142, ed. 1827. Thus we see by the
common law practice there was no non-suit except on the
motion of the defendant.
A voluntary non-suit is said to be an abandonment of a cause
by a plaintiff, and an agreement that a judgment for costs be
entered against him. But an involuntary non-suit is where
a plaintiff, on being called when the case is before the court
for trial, neglects to appear, or where he has given no evidence
upon which the jury could find a verdict.
444 Holmes v. C. & A. E. R. Co. [Jan. T.
Opinion of the Court.
This court has repeatedly held, that where a plaintiff has
offered evidence which tends to establish his right to recover,
the court has no right to take the evidence from the consid-
eration of the jury or to instruct them to find one way or the
other. It has always been held by this court that it is the
province of the jury to weigh the evidence, and the court has
no right to invade their province. But where there is no
evidence introduced by the plaintiff, and the defendant moves
the court for a non-suit, it would be proper to grant it, not-
withstanding the plaintiff might object. So, when the plain-
tiff may introduce some evidence and yet it lacks all the
essential elements of proving his right to recover, and wholly
fails to make a case, the defendant may move to exclude it,
or move for a non-suit, and if not assented to by the plaintiff,
the court might grant the non-suit, and in such a case it would
be involuntary. But the court has no such power in any case
where the weight of evidence has to be considered and estima-
ted. The practice has always sanctioned a motion to exclude
evidence of the plaintiff on the trial when he has introduced
all of his testimony, and before the defendant has entered
upon his defence, and if wholly insufficient, considering all
it proves or tends to prove, it may be excluded. And to so
exclude it would amount to an involuntary non-suit. If,
however, defendant fails to make such a motion and intro-
duces evidence, he can not afterwards move for a non-suit.
In the revision of 1833, p. 488, sec. 6, it is provided that
if the plaintiff shall fail to file his declaration at least ten
days before the second term, the defendant shall be entitled
to judgment as in case of non-suit. The same provision was
preserved in the revision of 1845, and is found in section
8 of the Practice act. It is also found in the revision of 1874,
in the 18th section of the Practice act.
In the revision of 1845, by the 29th section of the Practice
act, the common law practice was changed by permitting a
plaintiff voluntarily to suffer a non-suit at any time before
the jury retired from the bar. The same provision appears
1880.] Holmes v. C. & A. R. R. Co. 445
Opinion of the Court. ••
in the revision of 1874 in section 50 of the Practice act.
Since the adoption of this provision there have been in
practice both kinds of non-suits, and hence the question,
whether the provision under consideration was intended to em-
brace a voluntary non-suit. The section of the limitation
law under consideration was the ninth section of the act of
1827. Session Laws, p. 286. And as we fail to find any
practice that authorized a plaintiff to suffer a non-suit prior
to the revision of 1845, we are constrained to conclude that
the General Assembly did not, nor could they have intended
to, embrace in that section a voluntary non-suit. We must
conclude the term was used as it was then understood in
practice. We are, therefore, of opinion that the facts averred
in the rejoinder presented a defence, and there was no error in
overruling the demurrer to it.
It is said the rejoinders failed to give color, and are
therefore bad. If this be an objection it is but formal,
and was not pointed out in the special demurrer, and
hence can not be urged as error. The demurrer stated
as special grounds, "Said rejoinder is double." This falls
short of the requirement in assigning special grounds of
demurrer. Chitty, in his work on Pleading, vol. 1, p. 706
(6 Am. from 5 Lond. ed.), says: "For, when it is necessary
to demur specially, it is not sufficient to aver that the plead-
ing ' wants form/ but it must be shown specially in what
point in particular the form is defective, and, as it has been
said, the statute obliges the party demurring to lay his finger
upon the very point. Therefore, a demurrer for duplicity —
that it is double and wants form — is not sufficient, and it should
show in what the duplicity consists." The ground assigned
is not sufficient, and there was no error in overruling the de-
murrer. We fail to see that there is any force in the other
grounds specified.
Perceiving no error in the record, the judgment of the
Appellate Court must be affirmed.
Judgment affirmed.
446 DeWitt v. Bbadbuky. [Jan. T.
Statement of the case.
Sylvestee DeWitt
V.
Elizabeth Beadbltry. ,
Ejectment — proof of title by possession, claiming fee. Where a person goes
into possession of land under a deed purporting to convey to him a title in
fee simple, improves the same and continues to occupy the same up to his
death, and in his will claims the land as his home place, a part of which he
devises to his wife for life, proof of these facts by the wife in an action of
ejectment by her is sufficient evidence of title to authorize a recovery. The
claim of title need not necessarily be expressed in words. It may be shown
by acts.
Appeal from the Circuit Court of Brown county; the Hon.
C. L. Higbee, Judge, presiding.
This is an action of ejectment, brought by appellee against
appellant, at the March term, 1876, of the circuit court of Brown
county, for the recovery of the south half of the south-east
quarter of section 34, township 1 south of range 2 west of the
fourth principal meridian. Such proceedings were had that
at the March term, 1877, a trial by the court was had (the
defendant having interposed a plea of not guilty) and the
issue was found for plaintiff, and that she was the owner of a
life estate in the premises, and judgment followed the finding.
Appellant excepted to this finding, and seeks a reversal of
this judgment upon the ground that (as he claims) plaintiff
did not show title.
At the trial plaintiff read in evidence a deed by Hiram
Barker and wife to Benjamin F. DeWitt, by which, for the
expressed consideration of $1600 to them in hand paid, the
grantors conveyed by quitclaim and release to Benjamin F.
DeWitt, and to his heirs and assigns forever, the south-east
quarter of said section 34. This deed bears date October 23,
1852, and was duly acknowledged and recorded upon that day.
A witness for plaintiff testified that he had known the
premises for thirty years, and that for several years immedi-
1880.] DeWitt v. Bradbury. 447
Statement of the case.
ately prior to the date of that deed, Hiram Barker had been
and was in the sole and actual possession of the same, claim-
ing to be the owner in fee; that he cleared and fenced a con-
siderable part of the premises and planted trees thereon, and
raised crops thereon, and used the same as a farm, and erected
buildings and other improvements thereon.
The same witness further testified that immediately after
the date of the deed Benjamin F. DeWitt went into the
actual and exclusive possession and occupancy of the premises,
and used and cultivated and controlled the same, and claimed
the same in fee for eleven or twelve years; that during that
time he reduced other parts of the premises to cultivation,
and enclosed the whole of the land not previously fenced and
enclosed by Barker, and continued to control and cultivate the
premises until his death, which occurred in September, 1872.
On cross-examination this witness said that he could not
remember that he had ever heard Benjamin F. DeWitt say
anything about claiming to be the owner in fee; and further
testified that appellant, Sylvester DeWitt, had been in pos-
session of the land for the last ten or twelve years.
Appellee further proved that she was the wife of Benjamin
F. DeWitt for many years before and at the time of his death,
and that before this action she intermarried with James
Bradbury; and then produced in evidence the record of the
probated will of Benjamin F. DeWitt, dated in August, 1872,
by which he " gave, devised and bequeathed" unto his wife,
Elizabeth DeWitt, "the east half of the same section (34)
thirty-four," calling it (with an adjoining tract) " my home
farm, upon which my dwelling house is situated." This was
all the evidence.
Mr. W. H. Barnes, for the appellant.
Mr. William L. Vandeventer, for the appellee.
448 C. & A. E. R. Co. v. Pennell. [Jan. T.
Syllabus.
Mr. Justice Dickey delivered the opinion of the Court :
Appellant insists that plaintiff failed to show title, in this,
that there is no proof that Benjamin F. DeWitt claimed title
to the land in fee. This position is sought to be sustained on
the ground that no witness has testified to having heard him
say anything about claiming in fee, or how he claimed. This
position is not tenable. Barker's deed professes to convey
an estate of inheritance. Immediately after its date Benjamin
F. DeWitt took actual possession, and during his life treated
it as his own absolute property, by occupying, cultivating
and improving it, and before his death by his will claimed it
as his home place.
It is plain he claimed title in fee. It is not at all necessary
that such a claim should be expressed in words.
The judgment must be affirmed.
Judgment affirmed.
The Chicago and Alton Railroad Company
v.
William A. Pennell.
1. Negligence — in allowing sparks from engine to communicate fire. The law
requires a railroad company, in operating its trains, to use every possible pre-
caution, by the use of all the best and most approved mechanical inventions,
to prevent loss from the escape of fire or sparks along the line of its road,
and such company will be liable for a loss by fire caused by a neglect of such
duty, when the owner of the property destroyed is himself free from neg-
ligence.
2. A party who erects a building on or near a railroad track knows the
dangers incident to the use of steam as a motive power, and must be held
to assume some of the hazards connected with its use on such thoroughfares.
While the party has the right to erect a building near the track, and in an
exposed position, yet if he does so, he is bound to a -higher degree of care in
providing proper means to protect his property from fire than a person in a
less exposed position, and is also required to use all reasonable means to
save his property in case a fire should occur.
1880.] C. & A. R. R. Co. v. Pennell. 449
Opinion of the Court.
3. Same — negligence of owner of building burned. Where fire is communi-
cated to a building situate near a railroad track, through the negligence of a
railroad company, the owner can not recover for the loss of such property as
he could easily and without danger have saved from destruction.
4. Same — comparative. In an action against a railroad company to recover
the value of a building erected in close proximity to the track, and its furni-
ture, which are burned through the negligence of the company, an instruction
placing the right of recovery alone upon the defendant's negligence, and
which entirely ignores the question of due care on the part of the plaintiff in
trying to save the property destroyed or some part thereof, is erroneous.
5. Same — a question of fact. Negligence is the opposite of due care and
prudence. It is the omission to use the means reasonably necessary to avoid
injury to others, and is not a legal question, but one of fact to be proved like
any other question. It is error to tell the jury that certain acts constitute
negligence.
6. Evidence — rumor. On the question of the safety of an engine and the
employment of the most approved modern appliances to prevent the escape
of fire from the smoke stack, the testimony of a master mechanic who exam-
ined the same directly after a loss by fire, as to its safe and sound condition,
whose testimony is not impeached, can not be overcome by evidence of rumors
among the employees of the road that the engine was worn out and not safe.
Appeal from the Circuit Court of McLean county.
Messrs. Williams, Burr & Capen, for the appellant.
Messrs. Bloomfield & Hughes, for the appellees.
Mr. Justice Craig delivered the opinion of the Court:
This was an action brought to recover the value of a certain
building, known as the " Normal Hotel," and the furniture
therein, which were destroyed by fire on the night of Febru-
ary 14, 1872.
The track of the Chicago and Alton Railroad Company
crosses the track of the Illinois Central railroad at the town
of Normal. At the crossing of the two roads appellant erected
a depot building, which was a one-story frame, with a bag-
gage room near by it. The hotel, a frame building four
stories high (including the basement) with mansard roof,
29—94 III.
450 C. & A. R. R. Co. v. Pennell. [Jan. T.
Opinion of the Court.
stood about sixty feet in a south-east direction from the bag-
gage room.
On the night of the fire, and between twelve and one
o'clock, a freight train on appellant's road passed Normal,
going north-east. A short time after the train passed, the
depot building was discovered to be on fire. After the depot
had nearly burned down, a fire broke out in the hotel, which
in a short time destroyed the entire building, and, as is
claimed, the principal part of the furniture.
Appellee claims that the fire in the depot originated from
sparks thrown from appellant's locomotive, and that the hotel
caught fire from the burning of the depot.
In the first count of the declaration it is averred that on
the 14th of February, 1872, defendant had a passenger and
freight office standing in close proximity to its railroad track
in Normal, 111. ; that plaintiff was owner of a large hotel
and furniture therein of great value; that it was the duty of
defendant to have used and kept in repair complete and safe
engines only, and provided with the best approved appliances
and modern inventions to prevent the escape of sparks and
fire, but defendant negligently ran a defective, worn-out and
unsafe locomotive engine without its being provided with the
necessary mechanical contrivances and modern improvements
to prevent the escape of sparks and fire; that in conse-
quence of the neglect of defendant in running said engine so
constructed and out of repair, fire was communicated from
the engine to the passenger and freight office and thence to
the hotel building, whereby said hotel and furniture were
burned, etc.
The second count is like the first, except it is averred that
it was the duty of defendant to have used the utmost caution
and diligence in running and the management of its engines
to prevent the escape of sparks and fire; that defendant neg-
ligently suffered a locomotive engine, with a train of cars
attached, to be run in so negligent and careless a manner that
fire was communicated from the engine to a building on de-
1880.] C. & A. R. R. Co. v. Pennell. 451
Opinion of the Court.
fendant's right of way and between the railroad track and
said hotel building, whereby it with its furniture was de-
stroyed.
The third count is like the second, except it was that sparks
from the engine were communicated directly to the hotel
building. The declaration contained a fourth count, but as no
recovery is claimed under that count, it will not be necessary
to refer to it.
In regard to the issue presented by the first count of the
declaration, the decided weight of the evidence seems to be
that the railroad company was not in fault. The law, doubt-
less, required defendant to use every possible precaution, by
the use of all the best and most approved mechanical inven-
tions, to prevent loss from fire along the line of its road, as
held in Chicago and Alton Railroad Co. v. Quaintance, 58 111.
389. Upon this point the testimony of the master mechanic
of the defendant would seem to leave no room for doubt.
He said, "I examined the engine after it got back from Chi-
cago on the same trip, after the fire; it came back on the
regular trip with freight; it was in first-class condition. * *
The netting used is of iron wire, 4x4 or 16 holes to the inch.
The smoke stack was in perfect condition. There were no
holes in the netting, which had been put in new the Novem-
ber previous. It was then and still is the most approved form
of netting for a smoke stack. We know nothing better, and
still use it."
Now, if the evidence of this witness was true, and he was
not impeached, nor was his character for truth and veracity
called in question, we fail to see wherein the railroad com-
pany was in fault, in so far as furnishing a safe and well con-
structed engine is concerned. It is true there was some
evidence of a rumor among the employees of the road that
the engine was worn-out and not safe ; but such testimony
can not overcome the clear and direct proof of the master
mechanic, who had charge of the engine, on such a question.
452 C. & A. B. R. Co. v. Pennell. [Jan. T.
Opinion of the Court.
Iii regard to the issue formed under the averment of the
third count, that sparks from the engine were communicated
directly to the hotel building, there seems to be no proof to
sustain the averment; and it will not be necessary to spend
time considering the issue formed under this count of the
declaration.
We now come to the second count of the declaration, under
which, doubtless, the recovery was had. The engine in use
on the road on the night the fire occurred was a coal-burning
engine, and it is claimed that wood was used by the fireman,
and this is said to be negligence 011 the part of the company.
If the testimony of the conductor on the train was entitled
to credit, it might be claimed that wood was used by the fire-
man, but he was so successfully impeached that we can not
think the jury could rely upon his evidence. Aside from his
evidence, we find no proof that wood was used in the engine,
unless that conclusion may be reached from the proof made
of the quantity of sparks thrown out by the engine. The
brakeman, however, who rode upon the engine a part of the
time, testified that he saw no wood in use, and thinks none
was used. The proof upon this question, introduced under
the second count of the declaration, was not of as satisfactory
a character as it should have been, in our judgment, to author-
ize a recovery. But aside from this question, we are not sat-
isfied that the evidence, as it appears in this record, is sufficient
to establish the fact that the hotel was burned from fire com-
municated from the depot.
Three years and four months elapsed after the fire before
any action was brought against the railroad company for the
loss of the property, or before any claim was made that the
company was in fault or in any manner liable; nor was it
claimed at the outset that the fire in the hotel originated or
came from the fire at the depot. The hotel property was
insured in several fire insurance companies, and when the
adjusting agent of the companies called upon appellee to
adjust the loss, he testified that appellee "gave me as the sup-
1880.] C. & A. R. E. Co. v. Pennell. 453
Opinion of the Court.
posed origin of the fire that it was either from the premises
or from the depot building, and that the depot fire was caused
by a defective stovepipe." * * " Peimell never suggested .
that the railroad company was in the least to blame for the
fire." On redirect the witness said : "PennelPs theory was,
if it caught from the inside of the building, that it came from
an overheated stove." In addition to these facts a large num-
ber of witnesses who were present testify that the fire origina-
ted in the inside of the hotel building.
Mr. Jackson, who was boarding at the hotel at the time,
says: "The fire at the side made a sudden appearance as if
fire was breaking right out. I was looking there when it first
appeared. Till then there was no fire visible in the hotel.
My idea of the depot fire is, that it originated on the inside,
because it was bursting out of the roof when I first saw it."
Several of the witnesses who saw the fire unite in saying
that it started on the inside of the building, in the third story,
which was occupied, in part, by students attending the Nor-
mal. If the hotel caught fire from the depot, when all the
facts were fresh in the mind of the plaintiff, it seems strange
that he could not give that account of the matter to the adjust-
ing agent, who was at the time attempting to ascertain the
origin of the fire; and why he should delay in attempting to
collect the loss from the railroad company is not apparent.
It is true, no statute of limitations had run, but to remain
silent so long, and make no claim whatever against the com-
pany, looks very much like no meritorious claim existed; but,
however this may be, there is such a clear preponderance of
the proof tending to establish the fact that the fire originated
in the hotel, that justice demands the facts should be submit-
ted to another jury, under proper instructions, which was not
done on the trial in the circuit court.
The first instruction given for the plaintiff was as follows:
" 1. If the jury find for the plaintiff, the jury should assess
his damages at the value of the property in controversy de-
454 C. & A. E. R. Co. v. Pennell. [Jan. T.
Opinion of the Court.
stroyed, including the hotel and household furniture owned
by the plaintiff at the time of its destruction, if proven to be
destroyed at all, as aforesaid."
The plaintiff erected his building, after the railroad was
built, so near the track that it was necessarily exposed to such
danger as is incident to the use of steam in the operation of
a railroad ; and, as was said in Toledo, Wabash and Western
Railway Co. v. Larmon, 67 111. 68, the party who erects his
buildings on or near the track knows the dangers incident to
the use of steam as a motive power, and must be held to
assume some of the hazards connected with its use on those
great thoroughfares.
While the plaintiff had the undoubted right to erect his
hotel near the track of the railroad, and in an exposed posi-
tion if he saw proper, yet, when he did so, he was bound to
use a higher degree of care in providing proper means to pro-
tect his property from fire, than a person in a less exposed
position; and he was also required to use all reasonable means
to save his property in case a fire should occur.
In Great Western Railroad Co. v. Haworth, 39 111. 348, it
was held that an instruction which entirely ignores the ques-
tion of negligence on the part of the owner, and from which
the jury may have supposed that they were at liberty to find
for the plaintiff, notwithstanding his negligence materially
contributed to the injury, is erroneous.
In Toledo, Peoria and Warsaw Railway Co. v. Pindar, 53
111. 447, it was held that where fire was communicated to a
building through the negligence of a railroad company, the
owner can not recover for the loss of such portion of the
property as he could easily and without danger have saved
from destruction. To the same effect is Illinois Central Rail-
road Co. v. McClelland, 42 111. 355.
Under the instruction given, the plaintiff was required to
use no care whatever to save his property. The question of
care on his part was entirely ignored. Under the instruction,
1880.] C. & A. E. E. Co. v. Pennell. 455
Opinion of the Court.
if the property was destroyed, then all the jury had to do
was to bring in a verdict for the amount of the property,
regardless of the fact that plaintiff might, by the exercise of
proper care, have saved all or a part thereof from destruction.
The instruction was calculated to mislead the jury, and should
have been refused.
The third instruction given for the plaintiff was as follows :
"3. The use of wood for fuel in an engine built for and as
a coal-burning engine, is negligence, if the jury believe, from
the evidence, that the engine was constructed so as to burn
coal, and not so constructed as to burn wood with as much
safety as coal. But such negligence can not be such as to
render defendant liable, (if proven,) unless it is further proven,
to the satisfaction of the jury, that the use of such engine, by
burning wood therein, caused the injury complained of in the
declaration."
Negligence is a question of fact for the jury, and not a
question of law. In Great Western Railroad Co. v. Haworth,
supra, it was held that negligence is the opposite of care and
prudence; it is the omission to use the means reasonably
necessary to avoid injury to others, and is not a legal ques-
tion, but is one of fact, to be proved like any other question.
The instruction took the question of fact from the jury — a
question which it was their province to determine.
The ninth instruction excludes the idea that the plaintiff
was bound to be free from negligence, and in this respect it is
bad.
Other questions have been raised and discussed, but it will
not be necessary to consider them.
For the errors indicated the judgment will be reversed and
the cause remanded.
Judgment reversed.
Mr. Justice Scott: I do not concur in this opinion.
456 Orrell v. The People. [Jan. T.
Opinion of the Court.
Henry J. Orrell
v.
The People of the State of Illinois.
Burglary — whether a "stable" is. a "building." An indictment for burglary
averred that the "defendant broke and entered a stable," without also aver-
ring the stable was a "building." On the objection that it would not be
presumed a stable was a "building," but the fact ought to be averred in order
to bring the case within the statute in relation to burglary, it was held the
objection was not well taken. A "stable," as that word is commonly used, is
a "building," and may well be included in the class of structures denominated
in the statute as " other buildings."
Writ of Error to the Circuit Court of DeWitt county ;
the Hon. Lyman Lacey, Judge, presiding.
Messrs. Moore & Warner, for the plaintiffs in error.
Mr. E. S. Van Meter, State's attorney, and Mr. William
Fuller, for the People.
Mr. Justice Scott delivered the opinion of the Court :
Henry J. Orrell was indicted at the December terra, 1879,
of the DeWitt circuit court, jointly with Thomas Rea and
Henry Russell, for the crime of burglary. The offence con-
sisted in entering and taking from the stable of Sandusky
Wilson, in the night time, a set of harness of the value of $26.*
It appears Russell pleaded guilty, and Orrell and Rea having
pleaded not guilty, on trial both of them were convicted, and
sentenced to the penitentiary for a term of years. Orrell
alone prosecutes this writ of error.
On a careful consideration of the testimony it is apparent
the conviction is warranted. There is testimony, if the jury
believed it, that shows defendant participated directly in the
commission of the crime for which the parties were indicted.
Of course it was for the jury to determine what weight should
be given to the evidence, and this court will not undertake to
1880.] Okrell v. The People. 457
Opinion of the Court.
decide they found incorrectly on the conflicting testimony
submitted to them. The principal evidence given on behalf
of defendant to establish his innocence was that of Russell,
his co-defendant, who had previously confessed his guilty
participation in the transaction. It is hardly probable the
jury paid the slightest attention to the testimony of that wit-
ness, and they may have regarded him as the principal crimi-
nal of the parties charged, as the evidence tends to show he
was. The circumstances in evidence tended strongly to dis-
credit the witness, and may have led the jury to the conclu-
sion his testimony was unworthy of belief. His credibility,
under all the circumstances proven, was a question for the
j|ll7-
Testimony was given as to the previous good character of
defendant, which, it is insisted, ought to overcome the incul-
patory evidence given against him. No doubt the jury gave
that testimony all the weight it ought to have, and they may
have believed, and very justly, it was more than overcome by
the other testimony given that he was most frequently found
in company with the acknowledged perpetrator of the crime,
both before and after the burglary was committed.
After a careful consideration no serious error is perceived
in the instructions given on behalf of the people. It may
be that we might not approve the phraseology of every one
of them as accurate expressions of the law, but they contain
nothing hurtful to defendant. Many of them are based on the
theory, which the jury seem to have found was the correct
one, that defendant participated directly in the act of com-
mitting the burglary, and in. that view the instructions are
sufficiently accurate.
A point is made against the indictment, that it is averred
" defendant broke and entered a stable," and that it contains
no averment it was a "building." It is suggested such an
averment is necessary, as a "stable" is not included in the
statute in relation to burglary unless it comes under the gen-
eral classification of "other buildings," and it is said that fact
458 Enos et al. v. Buckley. [Jan. T.
Syllabus.
should not be presumed. A "stable," as that word is com-
monly used and understood, is the equivalent of "building,"
and is therefore fairly included in the statute denning burg-
lary in that class of structures denominated " other buildings."
The judgment will be affirmed.
Judgment affirmed.
Agnes D. Enos et al.
v.
James N. Buckley.
1. Limitation act of 1839 — saving clause as to married women abrogated by
Married Woman's act. Since the passage of the Married Woman's act of 1861,
the saving clause in favor of married women in the Limitation law of 1839
has no force, and the statute since that time applies against a married
woman equally as against an unmarried woman, without regard to whether
the property of the unmarried woman be strictly, in legal contemplation,
before the passage of the act, her separate property or not, and without regard
to the time of its acquisition, whether since or before the passage of the act,
and whether before or during coverture.
2. Where land was acquired by a woman in 1842, by devise from her
father, and she married in 1846, and in June, 1865, a party went into possession
of the same under claim and color of title, and he and those succeeding to his
claim and color of title, while in possession, paid all the taxes thereon for
seven successive years before suit brought by her to recover the land, it was
held, that the action was barred under the Limitation law of 1839.
3. Same — how defeated. The limitation of 1839 might have been prevented
by the payment of the taxes by the owner, and the outstanding title in the
husband formed no impediment to their payment since the act of 1861. The
taxes should have been kept paid, not on any one's particular interest in the
land, but on the whole land.
Writ of Error to the Circuit Court of Menard county;
the Hon. Cyrus Epler, Judge, presiding.
Mr. W. H. Herndon, for the plaintiff in error.
Mr. T. W. McNeely, for the defendant in error.
1880.] Enos et al. v. Buckley. 459
Opinion of the Court.
———————— -f —
Mr. Justice Sheldon delivered the opinion of the court :
This was an action of ejectment, by Agnes D. Enos, and
Zimri A. Enos, her husband, against James N. Buckley, com-
menced in the circuit court of Menard county, May 28, 1878,
to recover possession of the east half of the south-east quarter
and the north-west quarter of the south-east quarter of section
32, township 19, range 7 west of the third principal meridian,
situated in Menard county in this State, wherein there was
judgment for the defendant, and the plaintiffs bring the
case here by writ of error.
The title shown on the part of the plaintiffs was that
George Trotter was the patentee of the south-east quarter
of said section 32 under a patent issued to him by the United
States on November 1, 1839; that on or about May 18, 1842,
said George Trotter died, leaving a will whereby he devised
the lands in controversy, among others, in fee, in equal parts
to his four infant children, one of whom was Agnes D. Trotter,
now Agnes D. Enos, one of the plaintiffs. The will was duly
probated. In 1853, by a decree in a partition proceeding be-
tween the aforesaid devisees, the lands in controversy were
set off and allotted to the said Agnes D. Trotter, then Agnes
D. Enos, in severalty, she having been married to Zimri A*
Enos, June 10, 1846.
On the part of the defendant there was shown in evidence
a tax deed from the sheriff of Menard county to one A. K.
Riggin, dated November 4, 1848, under a tax sale on June
30, 1846, for a quarter section of land, with this simple de-
scription merely, to-wit: " South-east quarter of section
thirty-two, in township nineteen, range seven, containing one
hundred and sixty acres. " A general warranty deed dated
June 2, 1865, from Riggin to one Bracken, of the said south-
east quarter of section 32, described in the declaration, with
a full and proper description of it, together with other lands,
for the stated consideration of $4725. A general warranty
deed, dated February 16, 1869, from Bracken to James
460 Enos et ah v. Buckley. [Jan. T.
Opinion of the Court.
Buckley, of the lands in controversy, properly described,
together with other lands, the consideration stated being
$7500. Also, a general warranty deed dated April 9, 1878,
from Buckley, the defendant, to J. N. Rutledge, of the lands
in controversy, properly described, with other lands, for the
stated consideration of $5000, Buckley to keep possession of
the laud until March 1, 1879, by reservation in the deed.
It was further shown that Riggin paid all taxes assessed on
the land in controversy for the years from 1846 to 1864, both
inclusive; that Bracken paid all the taxes so assessed for the
years 1865, 1866, 1867 and 1868; that Buckley, the defend-
ant, paid all the taxes so assessed for the years from 1869 to
1877, both inclusive, and that Rutledge paid such taxes for
the year 1878.
It was further shown that the land in controversy was
vacant and unoccupied until in the year 1858 or 1859, further
than that it was fenced in, in 1856, as we understand, by ad-
joining owners fencing their own lands, and the pasturage
of it was enjoyed.
In 1858 or 1859 Riggin moved a house on the land, broke
up the land in 1859 or 1860, and had a tenant in the house
and upon the land from 1860 or 1861 to 1865, ever since which
time the land has been in cultivation and in the actual
possession respectively of the grantees in the several deeds
mentioned.
It is objected to the tax deed offered in evidence that it is
void for any purpose on account of the uncertainty of what
quarter section it is which the deed purports to convey, it
being merely described as E. J- of S.E. J of section 32, in town-
ship 19, range 7, the deed not stating on what side of any base
line or meridian is the township or range, or in what State
or county the land is situate. Without stopping to consider
as to this, we are of opinion that, laying aside this tax deed,
a good defence is made out by the payment of taxes on the
land by the defendant and those under whom he claims for
1880.] Enos et al. v. Buckley. 461
Opinion of the Court.
seven successive years while in actual possession of the land
under claim and color of title made in good faith.
There can be no doubt, under our decisions, that at least
the deed from Riggin to Bracken was color of title, as also
that from Bracken to the defendant, and that the claim of
title thereunder was made in good faith, and there was pay-
ment by the defendant under his deed, and while in the actual
possession of the land, of all taxes assessed against it for
seven successive years. Our statute, in force since 1839,
provides that " every person in the actual possession of lands
or tenements under claim and color of title made in good
faith, and who shall for seven successive years continue in
such possession, and shall also, during said time pay, all taxes
legally assessed on such lands or tenements, shall be held and
adjudged to be the legal owner of said lands or tenements, to
the extent and according to the purport of his or her paper
title."
There is an exception in the statute that it shall not extend
to lands held by a feme covert, provided she should commence
an action to recover such lands within three years after her
disability of coverture should cease to exist.
It is insisted that the plaintiff, Mrs. Enos, comes within
this exception.
It was held by this court, in Castner et al. v. Walrod, 83
111. 171, that the saving clause in favor of married women
in the Limitation law was abrogated by the Married Woman's
act of 1861, as the two acts were so inconsistent that they
could not stand together.
The Married Woman's act of 1861 provided "that all the
property, both real and personal, belonging to any married
woman, as her sole and separate property, or which any
woman hereafter married owns at the time of her marriage,
or which any married woman, during coverture, acquires in
good faith, etc., shall, notwithstanding her marriage, be and
remain during coverture her sole and separate property,
under her sole control, and be held, owned, possessed and
462 Enos et al. v. Buckley. [Jan. T.
Opinion of the Court.
enjoyed by her the same as though she was sole and unmar-
ried, and shall not be subject to the disposal, coutrol or
interference of her husband," etc.
It is contended that this Married Woman's act does not touch
the present case of Mrs. Enos ; that there are three classes of
cases in that law, in no one of which is her case embraced : 1,
all property belonging to any married woman as her sole and
separate property ; that this refers to what is well known in
the chancery courts of England and this country as a married
woman's separate estate, and which exists under some instru-
ment wherein the husband's marital right is excluded, and
that Mrs. Enos' land is not that species of property, but being
her general estate. That the second class respects property
which any woman thereafter married owns at the time of
her marriage, which could not embrace the present case, as
Mrs. Enos was married before, in 1846. That the third class
is property which any married woman acquires during cover-
ture, whereas the property here was acquired by devise in
1842, four years before the marriage, and that as respects the
second and third cases, the act is prospective in its operation.
And that such should be necessarily the limitations of the
statute, inasmuch as the husband by the marriage acquires a
freehold estate in the wife's lands during their joint lives
which it would not be within the power of an act of the legis-
lature to divest.
The same condition existed in the case of Castner et al. v.
Walrod, in the respect of the land of the married women not
being properly their sole and separate property, and of its
being owned by them at the time of the passage of the act of
1861, and for a long time previously.
Whatever force there may be in these suggestions now
made, we regard the above cited case as a decision against
their validity, and we must adhere to that decision as settling
the rule upon this subject.
We regard, then, under the decision in the case of Castner
et al. v. Walrod, that since the passage of the Married Woman's
1880.] Enos et at v. Buckley. 463
Opinion of the Court.
act of 1861, the saving clause in favor of married women in
this Limitation law has no force, and that the statute since
that time applies against a married woman equally as against
an unmarried woman, without regard to whether the property
of the married woman be strictly in legal understanding, be-
fore the passage of the act, her separate property or not, and
without regard to the time of its acquisition, whether since or
before the passage of the act, whether during or before cover-
ture.
It is true that in the Castner case it appears that the free-
hold estate in the husbands had become barred by the running
of the Statute of Limitations against it prior to the passage of
the act of 1861, so that such estate in their husbands formed no
obstacle to the bringing of an action for the possession by the
married women at any time after the act of 1861 ; and it was
there said they were bound to bring their action within seven
years after the act of 1861, or their right would be barred.
That feature does not exist in the present case, leaving out
of view the tax deed to Biggin as color of title, and taking
the deed from Riggin to Bracken of June 2, 1865, as the first
color of title ; and the seven years' payment of taxes under
the latter deed so as to bar the estate of Enos, the husband,
would not have run until the year 1872, and the present suit
was brought within seven years thereafter. In the Castner
case it might have been important that the married women
should have had seven years, after the time their husbands'
estate became barred, within which to bring their action for
possession, such time being the commencement of their ability
to maintain the action, as another section of the Statute of
Limitations was there involved, to-wit, the 4th section, of seven
years' possession under a title deducible of record from some
public office or officer. The present case involves a different
section, section 6, of seven years' payment of taxes with color
of title and possession. To prevent the acquirement of the bar
under this last section it was only necessary to pay the taxes.
464: Wilms v. Jess. [Jan. T.
Syllabus.
The outstanding estate in the husband here formed no im-
pediment to the payment of taxes any time after the act of
1861. The taxes should have been kept paid, — not on any
one's particular interest in the land, but on the whole land. As
between the owner of the life estate and the reversioner it
is undoubtedly the duty of the former to pay the taxes. But
the statute requires the payment of the taxes on the entire
interest in the land, no matter how it may be divided and
owned, and if they be not kept paid the whole estate in the
land may become barred, as against the owners, under the
statute. If, by reason of the husband's estate in the land, the
wife might not have been able to derive from it the means to
pay the taxes, she might otherwise, under and in consequence
of the Married Woman's act of 1861, have become possessed
of such means, and which she would not, except for that
act. It was adverted to as a consideration inducing the de-
cision in the Castner case, that since the passage of the above
named act a married woman could use her own money to pay
taxes, and thus prevent the acquirement of a bar by the pay-
ment of taxes by another.
The judgment of the circuit court will be affirmed.
Judgment affirmed.
Frederick Wilms
v.
Kobert W. Jess.
1. Mining — injury to surface land by leaving no sufficient supports. Where the
surface of land belongs to one, and the minerals to another, no evidence of
title appearing to regulate or qualify their rights of enjoyment, the owner of
the minerals can not remove them without leaving support sufficient to main-
tain the surface in its natural state.
2. The rule is well settled that when one owning the whole fee grants the
minerals, reserving the surface to himself, his grantee is entitled only to so
much of the mineral as he can get without injury to the superincumbent soil.
1880.] Wilms v. Jess. 465
Opinion of the Court.
3. Same — injury to building by subsidence of earth. While it is doubtless
true the party owning the minerals under the land of another, or having a
lease to remove the same, is only bound to leave support for the superincum-
bent soil in its natural state, and is not required to leave support for addi-
tional buildings erected on the surface, yet the mere presence of a building
or other structure upon the surface will not prevent a recovery for injuries to
the surface, unless it is shown that the subsidence would not have occurred
from the act, if no buildings existed upon the surface. The act creating the
subsidence is wrongful, and renders the owners of the mine liable for all
damages that result therefrom, as well to the buildings as to the land.
4. The act of removing all support from the superincumbent soil is prima
facie the cause of its subsequently subsiding; but if the subsidence is in fact
caused by the weight of buildings erected on the surface after the execution
of a lease to the defendant; authorizing him to take the mineral beneath the
surface, that may be shown in defence as contributive negligence.
5. Mining lease — construed. Where a mining lease stipulated that no pil-
lars should be withdrawn within 600 feet of the shaft, and the whole clause
relates to the manner of working the mine and the condition in which it
should be left, it was held that the lessees were not by implication authorized
to withdraw pillars or supports not within the prescribed distance so as to
cause a subsidence of the superincumbent soil.
Appeal from the Appellate Court for the Third District.
Messrs. Palmer, Palmer & Ross, for the appellant.
Messrs. Patton & Lanphier, and Messrs. McGrUiRE &
Hamilton, for the appellee.
Mr. Justice Scholfield delivered the opinion of the
Court :
Appellee brought an action on the case against appellant
and another, in the circuit court of Sangamon county, for
injuries to appellee's premises, caused by the removal by the
appellant and his co-defendant of the underlying strata of
coal, without leaving sufficient support for the surface.
The entire title to the lot of ground involved in the litiga-
tion was originally in Jacob Bunn ; but, on the 20th day of
March, 1870, he leased to the assignor of appellant and his
co-defendant "the sole and exclusive right of boring, digging
30—94 III.
466 Wilms v. Jess. [Jan. T.
Opinion of the Court.
and otherwise prospecting for coal," in a large body of land,
including this lot, and of " taking out and working the said
coal, together with the right of way and surface of so much
of the track as may be necessary for the economical use of
the same." The lease contained, among others, this clause:
"It is further understood and agreed, that the said party of
the second part shall mine the coal in a workmanlike manner,
no pillars to be withdrawn within six hundred (600) feet of
the shaft, and that the entries giving access to the coal not
mined at the termination of this lease shall be turned over
to the party of the first part in as good condition as the
nature of the mine will admit."
On the 5th day of October, 1877, Bunn, having previously
sold, conveyed this lot to appellee, making this exception in
the deed : " Except all coals and minerals of every description
under the surface of said premises (which is hereby expressly
reserved,) and the right to take therefrom all coals and min-
erals, with the privilege of extending entries thereunder."
Appellee at once took possession of the lot and soon there-
after commenced making improvements thereon, and had dug
a well, constructed a cistern, begun the erection of a house
which was estimated to cost some $5,500, and progressed
therewith until the brick work was completed, the frame
work raised and sheeted ready for weather-boarding, and the
roof and cupola completed, when the surface of the underly-
ing soil suddenly subsided for the distance of some three feet,
and thereby seriously damaged the house and destroyed the
well and cistern.
This was caused by appellant and his co-defendant mining
and removing the strata of coal underlying the lot.
The gist of the action as averred in the several counts of
the declaration is, the mining and removal of the coal with-
out leaving sufficient support for the surface.
Appellant and his co-defendant pleaded not guilty. The
cause was submitted to a jury wTho returned a verdict finding
the defendants guilty, and assessing the plaintiff's damages at
1880.] Wilms v. Jess. 467
Opinion of the Court.
--■-■• ■-.... ■ •■;'-• ---—--■ ■ — - -■ ■ ~it
$1000. The circuit court, after overruling motions for new
trial and in arrest of judgment, rendered judgment upon this
verdict, — and appellant took the case, by appeal, to the Ap-.
pellate Court for the Third District, where the judgment of
the circuit court was affirmed.
The present appeal is from that judgment of affirmance.
The lease under which appellant claims, confers the right to
work the mine and take out the coal, and, as incident thereto,
the use of usual and appropriate means therefor; and it also
gives a right of way and surface use of so much of the super-
incumbent soil as is necessary for the economical and efficient
working of the mine. It does not, however, assume to con-
fer any right to destroy or injure or further burden the
superincumbent soil.
Where the surface of land belongs to one and the minerals
to another, no evidence of title appearing to regulate or
qualify their rights of enjoyment, the owner of the minerals
can not remove them without leaving support sufficient to
maintain the surface in its natural state. Humphries v.
Brogden, 12 Queen's Bench, 743 (1 Eng. Law and Equity,
241) ; Harris v. Byding, 5 Meeson and Welsby, 59 ; Smart v.
Morton, 5 Ellis and Blackburn, 30.
But, it is contended, appellant and his co-defendant were
exonerated from protecting the surface, because the lease here
stipulates that "no pillars shall be withdrawn within six hun-
dred feet of the shaft/' upon the principle that, "having
expressed some, the parties have expressed all the conditions by
which they intend to be bound under that instrument."
By looking to the lease we think it quite clear this stipu-
lation has relation to the mine only, and no reference what-
ever to the superincumbent soil. The whole clause relates to
the manner of working the mine and the condition in which
it shall be left. It requires that the mining shall be done in
a workmanlike manner, that no pillars shall be withdrawn
within six hundred feet of the shaft, and that the entries
giving access to the coal not mined at the termination of the
468 Wilms v. Jess. [Jan. T.
Opinion of the Court.
lease, shall be turned over, etc., in good condition, etc., etc. —
all for the obvious purpose of preserving the shaft and access
to coal not mined.
No attempt is made to regulate the rights and obligations
of the parties in respect of the superincumbent soil, further
than to confer the right of way thereover, and the surface
use to the extent necessary to an efficient and economical
working of the mine, leaving them to be governed in other
respects in reference thereto by the common law.
The rule is well settled, when one owning the whole fee
grants the minerals, reserving the surface to himself, his
grantee is entitled only to so much of the minerals as he can
get without injury to the superincumbent soil. Coleman v.
Chadwich, 8 Pa. St. 81 ; Horner v. Watson, 29 P. F. Smith,
251; Jones v. Wagner, 10 id. 429; Harris v. By ding, supra;
Zinc Co. v. Franklinite Co. 13 N. J. (2 Beasely's Ch.) 342;
Smart v. Morton, supra.
And it is held, where a land owner sells the surface, re-
serving to himself the minerals with power to get them, he
must, if he intends to have power to get them in a way which
will destroy the surface, frame the reservation in such a way
as to show clearly that he is intended to have that power.
Hext v. Gill, 7 Law Reports, Chancery Appeal Cases, 699.
But, it is contended, this obligation to protect the super-
incumbent soil only extends to the soil in its natural state,
and that no obligation rests on the owner of the subjacent
strata to support additional buildings, in the absence of ex-
press stipulation to that effect. This is, doubtless, true, but
"the mere presence of a building or other structure upon
the surface does not prevent a recovery for injuries to the
surface, unless it is shown that the subsidence would not have
occurred except for the presence of the buildings. Where
the injury would have resulted from the act if no buildings
existed upon the surface, the act creating the subsidence is
wrongful and renders the owners of the mines liable for all
damages that result therefrom, as well to the buildings as to
1880.] Craig et al. v. Smith. 469
Syllabus.
the land itself." Wood on Nuisance, sec. 201. Brown v.
Robins, 4 Hurlstone and Norman, 185; Hamer v. Knowles
and another, 6 Hurlstone and Norman, 459.
The act of removing all support from the superincumbent
soil is, prima facie, the cause of its subsequently subsiding,
but if the subsiding is, in fact, caused by the weight of build-
ings erected subsequent to the execution of the lease of the
mine, this is in the nature of contributive negligence, and
may be proved in defence. The authorities do not require
that plaintiffs proof shall exclude that hypothesis in the first
instance.
The finding of the Appellate Court that the judgment of
the circuit court is sustained by the evidence, there being evi-
dence tending to that end, relieves us from a discussion of the
evidence.
We think the instructions given by the circuit court are
substantially in harmony with the views herein expressed, and
there is no error of law complained of in any other respect.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
Lewis H. Craig et al.
v.
Ira Cr. Smith.
Parties in chancery — on bill to set aside deed obtained by fraud. Upon bill to
set aside a conveyance of land executed by the complainant, and alleged to
have been obtained by fraud, and also to set aside a series of conveyances
subsequent thereto, of the same land, alleged to have been made in aid of the
fraud, the heirs of an intermediate grantor who had conveyed with covenant
of warranty are not necessary parties, unless it appears that they have assets
from the ancestor who made the covenant. If the heirs have received nothing
from the covenantor they can by no possibility be made liable upon his cove-
nant, and therefore would have no interest to be affected by the decree.
470 Craig et al. v. Smith. [Jan. T.
Opinion of the Court.
Writ of Error to the Circuit Court of Montgomery
county; the Hon. H. M. Vandeveer, Judge, presiding.
Mr. E. Lane, for the plaintiffs in error:
The object of the bill in this case was to cancel and set
aside a certain • deed, made by Ira G. Smith to William R.
Hall, on the ground of fraud, and a conveyance from Hall
to Tulliver Craig, and by the latter to Lewis H. Craig by
warranty. Pending the suit Tulliver Craig died.
Tulliver Craig having made a warranty deed, his heirs, on
his death, were necessary parties to the bill. Herrington v.
Hubbard, 1 Scam. 569; Prentice v. Kimball, 19 111. 320; Bon-
bon v. Galloway, 13 id. 75; Spear v. Campbell, 4 Scam. 426;
McLennan v. Johnston, 60 id. 311; Bruff v. Leder, 5 Gilm.
211; Lynch v. Botan, 39 111. 15.
Messrs. Rice & Miller, and Mr. Ben. E. Johnson, for
the defendant in error :
Tulliver Craig, at his death, had no title in the land that
could possibly have descended to his heirs, and they had no
interest in it, and consequently were not necessary parties.
Mr. E. Lane, in reply:
As any deed which conveys the land will convey the cove-
nants running with the land, the heirs of Tulliver Craig have
an interest in the subject matter. Brady v. Spruch, 27 111.
428.
Mr. Justice Scott delivered the opinion of the Court:
The original bill in this case was brought by Ira G.
Smith, against William R. Hall, Tulliver Craig, Lewis H.
Craig, Samuel T. Craig and two other parties said to claim
some interest in the lands which are the subject of the litiga-
tion, to set aside a conveyance of said lands by complainant to
William R. Hall, as having been obtained by fraud; also the
subsequent conveyances by Hall to Tulliver Craig, and by
1880.] Craig et at v. Smith. 471
Opinion of the Court.
______ , _
Tulliver Craig to Lewis H. Craig, and by Lewis H. Craig to
Samuel T. Craig, as fraudulent as to complainant.
After the original bill was filed Tulliver Craig died, and on.
that fact being suggested to the court leave was given to
amend the bill, which was done, after alleging the death, by a
general statement that the title remained as stated in the
original bill, and that all parties having any interest in the
lands were then before the court. A demurrer was sustained
to the original bill, and, on leave given, the bill was further
amended so as to disclose more fully the fraudulent character
of the transaction.
William E. Hall and Samuel T. Craig failed to answer the
bill, and as to them it was taken as confessed. Answers were
filed by Lewis H. Craig and Joseph Yankey, denying every
material allegation of the bill, and claiming that Lewis H.
Craig had purchased the lands from Tulliver Craig, in good
faith, for a valuable consideration, and obtained a warranty
deed for the same. The answers disclosed the names of the
heirs at law of Tulliver Craig,, deceased, and contained a
demurrer to the bill because they were not made parties.
Replications to the answer were filed, and the cause was
heard on bill, answer and replication, and testimony taken in
open court, and the court found every material allegation of
the bill to be true, and set aside all the deeds mentioned as
null and void as against complainants. The facts found by
the court, from the testimony, fully warranted the relief de-
creed.
As the record contains no certificate of evidence, defendant
makes no question in this court that the facts were not Avell
found by the court in its decree. The only point made is,
that the heirs of Tulliver Craig should have been made defend-
ants. In order to obtain a clearer understanding of the ques-
tion made, it will be necessary to state some of the principal,
facts alleged in the bill and found by the court, on the hearing,
to have been proved.
472 Ceaig et al. v. Smith. [Jan. T.
Opinion of the Court.
It is alleged that complainant was induced, by fraud, to
execute and deliver to William R. Hall a warranty deed for
the lands in controversy for the consideration stated in the
deed of live hundred dollars, and for certain lands in Missouri
to be conveyed by good deed to complainant. The five hun-
dred dollars were never paid, and was not intended to be paid,
nor did Hall ever convey or offer to convey the Missouri land
to complainant.
Tulliver Craig claimed to be acting as the agent of Hall in
the matter, and as soon as the deed was made to Hall for the
lands Craig took possession of the same, and he and his
family have continued to occupy them. It appears that Tulli-
ver Craig caused a man by the name of Fulmer to convey the
Missouri land to complainant, but he was not satisfied the
title thus obtained was good; and, afterwards, Craig caused
Fulmer and a man by the name of Allen to make a second
deed to complainant for the Missouri land, but it turned out
both of them were strangers to the title, so that complainant
obtained no title whatever to the land he was to receive in
exchange for his own. Every reasonable effort was made to
discover whether there was any such person as William R.
Hall, but no information could be obtained concerning him.
As we have seen, a deed purporting to have been made by
Hall was placed on record, which conveyed the lands com-
plainant conveyed to him, to Tulliver Craig, and he conveyed
the same to his son Lewis H. Craig, and he to his brother
Samuel T. Craig. All of these deeds contained covenants of
warranty as to the title, except the deed from Lewis H. Craig
to Samuel T. Craig. That is alleged to have been a quitclaim
deed. It is also alleged that each of the several conveyances
was made without any valuable consideration to support it;
that such conveyances were made as a part of a scheme to
defraud complainant of his land, and these allegations the
court found were fully sustained by the proof.
The rule is well settled, that all persons whose interest will
be affected by a decree should be made parties, that their
1880.] Craig et at. v. Smith. 473
Opinion of the Court.
interests and rights may not be cut off without an opportunity
to be heard in defence of those rights, whatever they may be.
Where the controversy relates to lands, and the right or title,
of the party omitted must necessarily be passed upon or
affected by the decree, the objection must be taken on the
hearing. Most generally the question of the want of proper
parties is raised by demurrer, but when it does not appear
on the face of the bill the objection should be made by
plea or answer. The difficulty does not lie in ascertaining
the rule but in its application to the facts of the case at bar.
What interest had the heirs of Tulliver Craig in the lands
involved in this litigation ? Certainly none. Their ancestor
had conveyed them in his lifetime, and of course no interest
iu such lands did or could descend to them. But it is said
they may be liable on the covenant of warranty in the deed
made by their ancestor, and ought to have been afforded an
opportunity to defend the title their ancestor had warranted
when it is assailed. Whether any liability would ever devolve
upon them depends primarily on, a fact not disclosed nor
made to appear on this record, viz: whether assets had or
would come to them from the estate of their ancestor. The
extent of the liability would in any event depend on the
value of such assets. It does not, therefore, appear by this
record that the heirs of Tulliver Craig have any interests
either directly or remotely that could be affected by this
decree. It is certain they had no title to the lands, for their
ancestor had conveyed in his lifetime. The answer discloses
no state of case under which the heirs, by any possibility,
could be made liable on any covenant made by their ancestor
and running with the land.
It does not appear on the face of the bill that the heirs
have any interest in the subject of the litigation, nor are any
facts disclosed by plea or answer that show they have any
interest whatever that could be affected by the decree. The
cases cited by counsel for defendants are not analogous with
474 Craig et al. v. Smith. [Jan. T.
Opinion of the Court.
the one at bar, and can not, therefore, be regarded as con-
trolling it.
In Spear v. Campbell, 4 Scam. 424, the bill was filed to set
aside a conveyance of lands as having been made for the
fraudulent purpose of avoiding the payment of the grantor's
debts due to complainant. The judgment debtor was not
made a party, and it was held the omission was error. It
appeared on the face of the bill he might be affected by the
decree, and it was thought he ought to have been allowed an
opportunity to show the debt had been fully paid or dis-
charged, and to maintain the validity of the conveyance of
his lands with covenants of title, apparently for a valuable
consideration and without fraud or collusion.
One reason that suggests itself for that conclusion, is, that
there was a personal liability resting on the covenantor to main-
tain his covenants. But that is not the case here. The omitted
parties here do not appear from anything on the face of the
bill, nor is anything alleged, by plea or answer, to show they
have interest to maintain the grant made by their ancestor.
That, as we have seen, will depend on the fact whether assets
shall come to them from his estate, — a fact not made known
by this record.
In McLennan v. Johnston, 60 111. 306, the omitted party
held the legal title to a portion of the lots of land involved
in the litigation, and she was held to be a necessary party ;
that a remote grantor might not thereafter be exposed to
liability to her on the covenant contained in his deed. The
case at bar bears no likeness to that one in its facts.
It will be noticed that in the case cited, the omitted party
was the one who could sue on the covenants running with
the land. Here, the party who could sue, if any one could,
on the covenants running with the land, is made a party, and
is concluded by the decree that finds his deed is fraudulent
and void. And in this case their ancestor had conveyed the
lands in his lifetime, and the omitted parties had no interest
whatever in the lands themselves; and, as we have seen, it is
1880.] Ruff et al. v. Jarrett. 475
Syllabus.
not made to appear by plea or answer they had any interest
in maintaining the covenants of their ancestor.
As the case comes before us the decree must be affirmed,
which is done.
Decree affirmed.
John Ruff et al.
v.
James Jarrett.
1. Parol evidence — of warranty, when a bill of sale is given. Where a bill
of sale of a lot of ice does not show to whom the sale was made, the quantity
sold, nor the price per ton, but simply that the ice was sold by the vendor,
describing its location and stating that it was to be removed between the date
of the instrument and the first of April following, it will not constitute a con-
tract between the parties without the aid of extrinsic evidence, and parol evi-
dence is admissible to show that the sale was made with a warranty, on a plea
of failure of consideration to an action on the note given for the price.
2. Same — to show failure of consideration. In a suit upon a promissory note
given for the price of personal property purchased, parol evidence of a
warranty of the property aud a breach of the warranty is admissible, and this
has never been held to vary, contradict or change the terms of the note, which
is but a part of the agreement.
3. Fraudulent warranty — statement of fact that vendor ought to have knoivn
to be false. If the vendor of a lot of ice makes a positive assertion to the
purchaser that he had measured the ice and there was a specified quantity,
and the statement was untrue, the vendor must have known its falsity, or at
least was bound to know, and if the purchaser relied upon the truth of the
assertion when it was untrue, and purchased in consequence thereof and suf-
fers damages thereby, he will be entitled to recover damages of the vendor
either in a suit against the vendor, or in a suit by the vendor to recover the
purchase money.
4. A warranty may be false, and not only false but known to be so by the
vendor, and when thus made, it is denominated a fraudulent warranty, and in
such a case it is error to so instruct the jury as to make the whole case turn
upon the question of fraud, excluding all consideration of a warranty.
5. Fraud — how far purchaser must rely on fraudulent statements. In an
action upon a note given for ice purchased, where fraud and a breach of
warranty are set up in defence, it is not correct to instruct the jury that even
476 Kuff et al. v. Jarrett. [Jan. T.
Opinion of the Court.
if the statements made were untrue as to the quantity of the ice, the pur-
chaser could not complain unless he relied solely on such statements as being
true in making the purchase. It is sufficient if he would not have made the
purchase but for such statements, though he may in part have relied on other
facts.
6. Evidence — degree of, required in civil suit. The jury in a civil suit are
only required to believe a state of fact from a preponderance of the evidence,
and it is error to instruct them that they must be satisfied by a preponderance
of the evidence, as imposing a higher degree of proof than the law requires.
7. Instructions — when the evidence is conflicting. Where the evidence is
conflicting as to the controverted facts and issues in a case, it is essential that
the several instructions should be accurate.
Appeal from the Appellate Court for the Third District;
the Hon. Chauncey L. Higbee, presiding Justice, and the
Hon. Oliver L. Davis and Hon. Lyman Lacey, Justices.
This was an action of assumpsit, brought by James Jarrett
against John Ruff and others, upon a promissory note. The
case was tried in the circuit court of Adams county, the Hon.
Joseph Shope, judge, presiding, and taken by appeal to the
Appellate Court.
Messrs. Arntzen & Moore, for the appellants.
Messrs. Marsh & McFadden, for the appellee.
Mr. Chief Justice Walker delivered the opinion of the
Court :
It appears that Jarrett brought an action of assumpsit
against Ruff and others on a promissory note for $3340.
Defendants filed the plea of the general issue and pleas of
partial failure of the consideration, and warranty of the
quantity of ice for which the note was given, and that the
warranty had failed, whereby they had suffered loss. A trial
was had by the court and a jury, which resulted in a verdict
in favor of the plaintiff. After overruling a motion for a
new trial the court rendered a judgment on the verdict
against defendants, and they appealed to the Appellate Court
1880.] Euff et al v. Jareett. 477
Opinion of the Court.
for the Third District. On a trial in that court the judgment
of the circuit court was affirmed, and the case is brought to
this court on appeal.
It is urged, as a ground of reversal, that the circuit court
erred in giving instructions for the plaintiff. The first in-
struction informs the jury that the written bill of sale signed
by appellee constitutes the contract between the parties, and
that there was no warranty, nor could the jury consider any
evidence outside of it as to the question of a warranty, but
only as to the question of whether the representations made
as to quantity and quality of the ice were fraudulent.
The bill of sale does not say to whom the sale was made, the
quantity sold, nor the price per ton, but simply the ice was sold
by appellee, describing its location, that it was sold for $3340,
and that it was to be removed between the date of the instru-
ment and the first of April, 1878. This can not be regarded
as a contract between the parties without the aid of extrinsic
evidence. If evidence may be introduced to prove who was
the purchaser and to give eifect to this bill of sale, then what
reason can there be for not permitting evidence of a warranty?
Suppose this incomplete instrument had not been produced in
evidence, and the same proof had been made in regard to the
guaranty or warranty, can it be contended that the evidence
would not have been admissible? If such is not the rule,
then a person purchasing and relying on a warranty would
never be protected by it if he gave his note or took a bill of
sale or particulars in writing, unless it contained a written
warranty. We have never known such a rule contended for,
nor are we referred to any such authority. The case of
Shachelton v. Lawrence, 65 111. 175, was a suit on a note, and
the defence was a breach of a warranty, pleaded as a failure
of consideration, and no such objection was taken.
The case of Reed v. Hastings, 61 111. 266, was also on a
note, and the defence of a warranty was allowed without
objection.
478 Euff et aL v. Jarrett. [Jan. T.
Opinion of the Court.
The case of McClure v. Williams, 65 111. 390, was also on
a promissory note, and the defence of a failure of considera-
tion, because of the breach of warranty, was allowed.
Many, if not a majority, of the cases in our court have
been on promissory notes, and the objection has never been
allowed that to permit proof of the warranty outside of the
note, and by parol, would be to vary, contradict or change the
terms of the note.
In the case of Morgan v. Fallenstein, 27 111. 31, it was
said, in discussing the defence of a failure of consideration :
"A note or bond to pay money is necessarily but a part of the
agreement between the parties, leaving out, as it does, all
that portion of the agreement which induced the undertaking
to pay the money, and if this part could not be shown by
parol, there must ever be a liability to a failure of justice.
Nor is the exception to the general rule upon which counsel
here rely confined to showing by parol a failure of considera-
tion. Usury, and in fine any other defence arising out of the
original agreement upon which the note was given, or of
which the note constitutes a part, may be shown by parol in
order to establish a defence to the note." That the breach of
warranty of the property for which the note was given consti-
tutes a defence either in whole or in part, none will deny.
We have seen that the instrument by appellee to appellants
does not profess to give the terms of the agreement, nor does
it by the language employed purport to be connected with
this transaction. To render it an agreement governing this
transaction, a material portion of its terms had to be supplied
by parol. If such omitted portion may be thus supplied,
surely no well founded reason can be urged why the entire
omitted portions of the agreement may not be thus proved.
Barker v. Garvey, 83 111. 187.
The case of Houghton v. Carpenter, 40 "Vt. 588, was a
memorandum signed by one of the parties to the suit, and
stated he had received butter, and a statement of the payment
from some one not named. It was held the written memo-
1880.] Kuff et ah v. Jareett. 479
Opinion of the Court.
randum signed by the defendant had no legal effect as a con-
tract, and was unmeaning until the parol contract was proved
to give it application; that the plaintiff, having the right to
prove the sale by parol, was at liberty to prove the warranty.
And for the same reason the same rule applies in this case.
The case of Mann v. Smyser, 76 111. 365, fully sustains
these views. In fact that case goes farther than anything we
have here said.
The circuit court erred in giving appellee's first instruction.
The fifth instruction given for appellee is erroneous and
should not have been given. It informs the jury that there
can be no fraud without an intent to deceive, and that unless
they were satisfied by a preponderance of the evidence, not
merely of the falsity of the statement that appellee had meas-
ured the ice, but also of the further fact that he knew the
statement was false, and that he made it purposely to defraud
and deceive appellants, they must find for appellee.
In the case of Thome v. Prentiss, 83 111. 99, the rule is
stated that if the seller makes a distinct assertion of the
quality or condition of the article sold, whether it amounts to
a warranty or not, which he knows or should know is untrue,
with a view to induce another to buy, and the other relies on
and believes the assertion to be true, and, relying thereon,
purchases, and damages ensue, he may maintain an action for
deceit. To the same effect are the cases of Allen v. Hart, 72
111. 106, and Mitchell v. McDougall, 62 id. 498, and numerous
other authorities might be cited in illustration of the principle.
It follows, that if appellee made the positive assertion that
he had measured the ice and that there was a specified quantity,
and the statement was untrue, he must have known its falsity,
or at least was bound to know. And if appellants relied upon
the truth of the assertion when it was untrue, and purchased,
and have suffered damage thereby, they are entitled to recover.
In this, the fifth instruction was wrong.
It was also erroneous in saying to the jury that they must
be satisfied by a preponderance of the evidence. This was
480 Euff et al. v. Jarrett. [Jan. T.
Opinion of the Court.
improper, as it imposed a higher degree of proof than is
imposed by the law. The jury were only required to believe
from a preponderance of the evidence, and not to be satisfied
by the proofs, as the instruction requires. Satisfactory evi-
dence almost excludes doubt, whilst belief from a preponder-
ance of evidence does not, but leaves the balance in the mind
on one side of the proposition.
Again, in several of the instructions the jury are told that
even if the statements were untrue as to the quantity of ice,
appellants could not complain, unless they relied solely on
them as true in making the purchase. This is not correct, as
they may have relied in part on other circumstances, but
would not have purchased had the statements not been made.
If such was the fact, then the statements induced the purchase,
but were not perhaps the sole inducement. It is true, appel-
lants in some of their instructions say if they relied solely on
the statements, they could recover. It may be that if this was
the only error, they, under the circumstances, would not be
permitted to complain.
The court erred in modifying the first and fifth of appel-
lants' instructions before giving them. By the qualifications
the question of warranty was wholly ignored. A warranty
may be false, and not only false, but known to be so by the
vendor, and when thus made is denominated a fraudulent
warranty. These instructions were drawn on that theory,
and were, under the evidence, proper to be given without
modification. And the third instruction asked by appellants
was of the same character, and was improperly modified.
The modifications make the entire case turn upon fraud, and
exclude all question of warranty.
The first instruction given for appellee informed the jury
that there was no warranty, and these instructions were mod-
ified so as to conform to that theory. On turning to the
evidence, we see it is conflicting to an extent that rendered it
essential to a correct finding that the instructions should have
been accurate. The evidence is not so clearly in favor of
1880.] Mathis et dl. v. Stufflebeam. 481
Syllabus.
, _______ -.
appellee that we can say that the erroneous instructions did
not mislead the jury in their finding. On the contrary, we
think they may have had that effect.
We are unable to perceive any force in the argument under
the cross-error, and deem it unnecessary to discuss it, and we
suppose it is not relied on by appellee. A party surely can
never justify a fraud by saying the other party should not
have relied on his false and fraudulent statements. He can
not be heard to say, true my statements were untrue, but you
should not have believed them.
For the errors indicated, the judgment of the Appellate
Court is reversed and the cause remanded.
Judgment reversed.
Samuel B. Mathis et al.
v.
Oliver P. Stufflebeam.
1. Resulting trust — when it arises. Where land is purchased with the
money of one person, and the deed taken in the name of another, a trust
results by operation of law in favor of the person whose money is used.
2. In this case, one of two joint defendants in execution purchased land
at the execution sale, paid the amount of his bid, and received from the officer
a certificate of purchase. Under a misapprehension as to his right to become
a purchaser at the sale, he surrendered his certificate of purchase to the officer
and procured another to be issued to a third person, but retaining it in his
own hands until the time of redemption expired. He then, under some agree-
ment not involving the payment of the money, delivered this second certificate
of purchase to the person in whose name it was issued, who thereupon assigned
it to his wife, and she at once took a sheriff's deed in her own name. The wife
had knowledge of all the facts, and was a mere volunteer. It was held, a
resulting trust would arise in favor of the person who paid the money at the
execution sale.
3. The mere fact that the purchaser at the execution sale procured the
second certificate of purchase to be issued to a third person, could in nowise
operate to bar his rights in the premises. That act was not in contravention
31—94 III.
482 Mathis et at: v. Stuffeebeam. [Jan. T.
Brief for the Appellants.
of any rule of public policy so as to prevent a resulting trust from arising in
his favor.
4, Nor would the fact that the person so alleging the resulting trust offered
to accept a settlement in respect to the subject of the controversy, in any way
militate against his claim.
5. Purchaser — who may become a purchaser at an execution sale. One of two
defendants in an execution may properly become a purchaser at the execution
sale of the land of his co-defendant; — and especially would this be the case
where the purchaser was surety for his co-defendant in respect of the debt
for which the judgment upon which the execution issued was rendered.
Appeal from the Circuit Court of Vermilion county ; the
Hon. Oliver L. Davis, Judge, presiding.
Mr. W. R. Lawrence, and Messrs. Young & Pennell,
for the appellants:
There can not be a resulting trust, because the complainant,
Stufflebeam, procured the sheriff to execute the certificate of
purchase to one not the purchaser, thus making a false return.
This being contrary to the statute, and against public policy,
cuts him off from relief in equity. Story's Eq. sec. 1201;
Willard's Eq. (Potter's ed.) 605.
The complainant does not pretend there was a transfer of
the bid, but insists he was the purchaser; in which case the
certificate could only issue to him legally. There must be
conformity in all proceedings of this nature, without which
they are invalid. Dicherman v. Burgess, 20 111. 281; Davis
v. McViekers, 11 id. 329.
Complainant alleges, and swears, that he was advised that
he could not be the purchaser of his co-defendant's property
at sheriff's sale; and if this be true, a court of equity will
not give him that which he would not be entitled to under the
law; and would leave him to his remedy against the defendant
for money paid to his use, or for money had and received.
The counsel who advised him doubtless proceeded on the
ground that the judgment was the debt of complainant, and
the bid would only be its payment, and thereby discharge the
judgment, leaving the certificate of purchase of no force.
1880.] Mathis et aL v. Stufflebeam. 483
Brief for the Appellants.
Coggeshall v. Buggies, 62 111. 404; Story's Eq. sees. 316, 499;
Freeman on Judgments, sec. 472; Brandt on Suretyship, sec.
182; Meed v. Norris, 2 Mylue & Craig, 361.
A resulting trust can only arise by implication, and can
only stand until some reasonable proof is brought to the con-
trary. Elliott v. Armstrong, 2 Blackf. 198. This implication
is overcome in this case by the admissions of complainant in
his amended bill, when he alleges that they agreed to divide
the land in proportion to their respective claims against Busby,
complainant's being $1077, and defendants' $2600; and com-
plainant, in his testimony, details at length the agreement
between himself and defendants, that he was to abandon all
claim to the land purchased, and in lieu thereof to take his
$800 and interest in money. It has been time and again held
by this court that a resulting trust could not arise out of an
express agreement. It is only an implied equity. Sheldon v.
Harding, 44 111. 68; Remington v. Campbell, 60 id. 516;
Mahony v. Mahony, 65 id. 406.
It is clear, from the bill, and the testimony of complainant,
that these parties at least had mutual claims against Busby,
and were endeavoring to protect themselves by the purchase
of the land, and there was a greater degree of trust reposed
in complainant by defendants than contrawise. If complain-
ant has equity, the equity of defendants is equal to it, and the
case, therefore, comes under the well known rule, that where
the equities are equal the law must prevail. Willard's Eq.
(Potter's ed.) 49; Fitzsimmons v. Ogden, 7 Cranch, 2; Phil-
lips v. Cranmond, 2 Wash. C. C. 441.
Another objection to complainant's theory of a resulting
trust is the intervening equity of the defendant Sarah J.
Mathis. She and her co-defendant testify that she was an
assignee of the certificate of purchase for a valuable consid-
eration, without notice of any right or interest therein of the
complainant, except the right to a conveyance of the 240
acres. There is no attempt to dispute the fact that she
obtained $600 as a gift from her grandfather, and that her
484 Mathis et al. v. Stufflebeam. [Jan. T.
Brief for the Appellee.
husband obtained it. In equity, she would be entitled to
compensation from her husband. She has the right to control
her separate property. Before the statute in favor of married
women, her rights in a court of equity were almost identical
with her rights now under the statute; and in this case,
unless it clearly appears the money was a gift from her to her
husband, he would at least be treated as trustee for her money.
Willard's Eq. 635; Story's Eq. sees. 1378, 1390; Lucas v.
Lucas, 1 Atk. 72; Pawlet v. Delaval, 2 Yes. 666.
It was certainly not equity to deprive the defendants of all
right or interest in the land, when all the complainant asked
was his $800 and interest.. It would have satisfied him had
the 120 acres been subjected to the payment of his money,
and left the defendants the equity of redemption, to compen-
sate them for $2600 due from the insolvent Busby.
Mr. John 1ST. Hollo way, for the appellee:
The law is clearly and fully established, that upon the pur-
chase of property, if the legal title is taken in the name of
one person, while the consideration is given or paid by another,
a resulting or presumptive trust immediately arises by virtue
of the transaction, in favor of the party furnishing the money.
2 Bouvier's Law Dictionary, 473; Hill on Trustees, 130;
4 Kent Com. 332 and 333; Prevo v. Walters et al. 4 Scam. 35;
Coats v. Woodworth, 13 111. 654.
It matters not if the conveyance so taken was by the consent
of the party furnishing the money. Willard's Equity, 599;
2 Washburn on Real Property, 482; 4 Kent, 339 and note;
Coats v. Woodworth, 13 111. 654; Smith v. Smith et al. 85 id.
189; Williams v. Brown, 14 id. 203.
If appellee could not have been a legal purchaser at the
sale, then a trust could not have arisen. But he could have
been a legal purchaser, and the attorney who advised him
otherwise was simply mistaken. There is no reason, law nor
common sense that would preclude appellee from being a
legal purchaser and of taking the certificate of purchase in
1880.] Mathis et al. v. Stufflebeam. 485
Opinion of the Couri.
his own name. On the other hand, there are special reasons
why the law should favor his becoming the purchaser. The
debt sought to be made by the sale was not his debt; he was
only surety therefor. The land to be sold was the only prop-
erty belonging to the principal debtor out of which the debt
could have been made, and if appellee had been debarred
from buying at the sale, he would have probably been com-
pelled to pay a large portion of the debt himself. The policy
of the law is to favor and protect the rights and privileges of
a surety — not curtail them. But the authorities settle this
question. Herman on Executions, 321, sec. 208 ; Gibson et al.
v. Winslow, 38 Penn. 49; Freeman on Executions, 292.
But it is claimed by appellants that these subsequent agree-
ments of complainant, made when he delivered the certificate
to Mathis and afterwards, overcome the presumption of a
trust. A resulting trust must arise, if at all, at the time the
conveyance is taken, and no parol agreements made before
or after can affect the same. "Willard's Equity, 600; Williams
v. Brown et al. 14 111. 203.
The trust arose, then, before these parol agreements were
made. Did they discharge the trust? It would seem from
the authorities just cited that they could not affect it. The
appellants do not plead them in discharge, but deny them.
They never executed them and have refused to execute them.
Can one party claim the benefits of an agreement in court,
and yet deny and renounce them himself?
Mr. Justice Scott delivered the opinion of the Court :
The bill in this case is framed with a view to have a result-
ing trust in the lands in litigation established in favor of
complainant, and if that could not be done, to have the
money advanced to purchase the land at sheriff's sale de-
clared a lien on it and the land subjected to sale for its pay-
ment. The circuit court held the facts proved established a
resulting trust and decreed accordingly. After a careful
consideration we are of opinion the evidence sustains that
486 Mathis et at. v. Stufflebeam. [Jan. T.
Opinion of the Court.
view of the case. There can be no doubt that complainant
bid off the land at the sheriff's sale in his own name for the
sum of $800, paid the money to the sheriff and received the
usual certificate of purchase. Complainant was advised it
was doubtful whether it was lawful for him to become a
bidder at the sale, and it was for that reason he did, on the
same day, surrender the certificate he had received and pro-
cured the sheriff to issue another one in the name of defendant,
Samuel B. Mathis. Complainant retained the certificate,
however, until after the time of redemption had expired,
when, under some agreement, he let defendant Samuel B.
Mathis have it. Thereupon Mathis assigned it to his wife,
Sarah Mathis, who immediately took a deed for the land,
and has since been in possession with her husband.
It h apparent Sarah Mathis was not an innocent purchaser
for a valuable consideration, and that she was familiar with the
facts of the transaction before she took an assignment of the
certificate. Some twenty-six years ago she let her husband
have $600 that she had received from her grandfather, and
that is all the consideration, it is claimed, there was passing
from her to her husband for the assignment. Where land is
purchased with the money of one person and the deed taken
in the name of another, a trust results by operation of law
in favor of the person whose money is used. Coatesv. Wood-
worth, 13 111. 654; Smith v. Smith, 85 id. 189. The- facts
proved bring this case exactly within the rule stated. Com-
plainant furnished all the purchase money of the land, but
the deed was taken in the name of defendant.
But it is said there can be no resulting trust in favor of
complainant, for the reason, it is shown he procured the sheriff
to issue a certificate, not to the purchaser of the land at the
sheriff's sale, but to one who was not a purchaser. That
fact, it is insisted, will bar all relief, but for what reason is
not apparent. It was simply a transfer of the bid made by
complainant to defendant and permitting him to take the cer-
1880.] Mathis et al. v. Stufflebeam. 487
Opinion of the Court.
tificate. That could wrong no one, and how it contravenes
any public policy is not perceived.
It was not unlawful for complainant to become a purchaser
at the sheriff's sale. The judgment on which the execution
issued and under which the sale was made was rendered on
a promissory note made by William Busby as principal, and
complainant and another as his sureties. An execution creditor
may become a purchaser at his own sale, and no reason is
perceived why one of two defendants at a sale on joint exe-
cution may not become the purchaser of the property of the
other. In a case like the one at bar there is great propriety
in it. It might be the only speedy mode of securing himself
against loss on account of his suretyship. It is not against
any sound public policy, where no relations of trust exist be-
tween the parties, and where such purchaser does not thereby
obtain any unconscionable advantage over his co-defendant,
for whom he is only surety. In Gibson v. Winslow, 38 Penn.
49, it was held, one joint judgment debtor might become the
purchaser of his co-defendant's land at a sale on an execution
issued on a joint judgment. The same principle is stated in
Herman on Executions, sec. 208, and in cases cited.
There is nothing in Coggeshallv. Buggies, 62 111. 401, in con-
flict with the views here expressed. There, the debtor whose
land was sold filed a bill to set aside the sale on the ground
the judgment was satisfied before the sale was made, and it was
on that ground the sale was set aside by the circuit court. The
principle of the decree was affirmed on appeal, but this court
imposed terms upon which the relief should be granted. The
reasoning of the court is to the effect that where the relation
of principal and surety exists the surety may become the pur-
chaser of the principal's property under an execution against
both of them. On principle, there is no reason why he may
not.
Another objection confidently relied on is, that there can
be no resulting trust under the facts of the case, because of a
subsequent agreement to divide the lands in proportion to
488 Tayloe v. McIrvin. [Jan. T.
Syllabus.
their respective claims against the principal judgment debtor.
It would seem to be a sufficient answer to the position taken,
that defendant in his testimony denies that any such agree-
ment was made. It is no doubt true that complainant was
willing, as a settlement of the controversy, to take the money
he had paid out, with interest, or perhaps to take land for it
at a certain price per acre, but defendant never performed or
offered to perform any such agreement, and the mere offer of
complainant to accept a settlement ought not to bar him of
the relief he would otherwise be entitled to.
No error is perceived in the record, and the decree will be
affirmed.
Decree affirmed.
Abner Taylor
v.
Jasper McIrvin.
1. Secondary evidence — notice to produce. Where the proof shows that
the opposite party has not a deed in his possession, no notice to him to pro-
duce the same is necessary, to admit parol evidence of its contents. Proof of
the loss of the deed is sufficient.
2. Same — diligence of search for lost deed. Where the grantor of land in the
State of Iowa, after the delivery of the deed in this State with covenants of
warranty, took the deed with him to have the same recorded in the proper
county in Iowa, and on his return said it had been recorded, and some six
months afterwards, when informed that it had not been recorded, stated that
it was on file with the recorder, but that he had forgotton to pay the fees for
recording, and on the trial he testified he had left the same with the recorder
in Iowa, whose name he thought was Morgan, and the opposite party pro-
duced an affidavit of one Beach, the then recorder, stating that no such deed
■was on file, it was held, that there was no error in admitting secondary evidence
of the contents of the deed. If the grantor had informed the grantee, or his
agent, in apt time of the name of the person with whom he left the deed, it
may have been that proper diligence would have required the grantee to have
made inquiry of such person, but giving his name on the trial was too late to
require this.
1880.] Tayloe v. McIrvin. 489
Briefs for the Appellant and the Appellee.
3. Same — loss of deed may be shown by affidavit. As to matters directly in
issue, the testimony of witnesses must be taken in open court or upon deposi-
tion, so as to afford an opportunity of cross-examination, but as to some col-
lateral matters, among which is the loss of a document, affidavits taken ex
parte are competent evidence.
4. Witness — not bound to criminate himself . Where a witness has testified
that whatever judgment might be recovered was for his benefit, it is a proper
question, to discredit his testimony, to ask him whether he had not gone
through bankruptcy without mention of the claim in dispute in his schedule
of credits, but the witness is not bound to answer the same, as it tends to
criminate him.
Appeal from the Circuit Court of DeWitt county ; the
Hon. Lyman Lacey, Judge, presiding.
Messrs. Palmer & Weldon, for the appellant:
The first question for the jury on the trial was, did Taylor
make a deed to McIrvin, as alleged in the declaration ? Upon
this question the court permitted the following inquiry to
be made of the witness Swords : "What kind of a deed V9
Answer — "A deed clear of incumbrance- — a deed- warranted
clear of incumbrance." The answer was simply his conclu-
sion, and its admission was error.
Swords was the material witness for the plaintiff. He is
substantially the plaintiff, and should have been subjected to
a broad and searching cross-examination. If he had made
any declaration out of court contradictory to his statements
in court, or incompatible with his claim against Taylor, it
was the right of the defendant to show such declaration,
thereby attacking the credibility of his testimony.
The verdict is against the great preponderance of the evi-
dence, and therefore a new trial should have been granted.
The court permitted proof of the contents of the deed with-
out sufficient testimony as to search.
Messrs. Sweeney, Donahue & Kelly, and Messrs.
Moore & Warner, for the appellee :
The finding of the jury on a conflict in the evidence should
not be disturbed unless it strikes an unprejudiced court as
490 Taylor t>. McIrvin. [Jan. T.
Brief for the Appellant. Opinion of the Court.
being grossly unjust. Robinson v. Parish, 62 111. 130 ; Palmer
v. McAboy, 38 id. 54; Toledo, Peoria and Warsaw By. Co. v.
Hobble, 61 id. 389; Bestor v. Moss, 61 id. 497. As to the
proof of diligence and search to produce the lost deed, coun-
sel cited Wells v. Miller, 37 111. 276 ; McMillan v. Bethold,
35 id. 250; 1 Greenl. Ev. p. 706, sec. 558 and note 2.
The question to Swords, complained of, was proper, and the
witness could have made no other answer less objectionable.
It was certainly proper for him to answer it in some way.
Phares v. Barber, 61 111. 273; Miner v. Phillips, 42 id. 123;
Greenup v. Stoker, 3 Gilm. 202.
The question proposed to Swords and disallowed was not
proper cross-examination. Nothing had been called out, in
the direct examination, about bankruptcy. Phila. & T. B. B.
Co. v. Stempson, 14 Pet. 448-461.
Messrs. Palmer & Weldon, for appellant, in reply, as
to the search and diligence required to produce a deed
to admit secondary evidence, and as to the place to make the
search or inquiry, cited, Mariner v. Saunders, 5 Gilm. 117;
Minor v. Tillotson, 7 Pet. 99; Perkins v. Cobbett, 11 Eng. C.
L. R. 394 ; Simpson v. Doll, 3 Wall. 461 ; Bankin v. Crow, 19
111. 626; Pardee v. Lindley, 31 id. 184.
The substance of the lost contract or paper must be proven
satisfactorily. Biggs v. Taylor, 1 Pet. R. 591 ; U. S. v. Brit-
tin, 3 Mason, 464; Whitehall v. Smith, 24 111. 165.
Mr. Justice Dickey delivered the opinion of the Court:
This is an action of covenant, brought by appellee against
appellant, alleging the execution of a deed (with covenants of
warranty), by appellant, conveying certain lands in Iowa to
appellee with covenants of title free from incumbrance, and
charging a breach of the covenants. In one count it is
alleged that the deed was lost before it was recorded.
Defendant put in a plea of non est factum (not verified by
affidavit) ; also, other pleas traversing specially allegations as
to breach of covenants.
1880.] Taylor v. McIevin. 491
Opinion of the Court.
The issues were tried at the December term, 1873, and
found for plaintiff. This verdict was set aside. The declar-
ation was amended. To this amended declaration defendant,
among other pleas, filed one denying the execution of the
deed, and this was verified by affidavit. Issues were formed,
and at the December term, 1875, a trial was had, resulting in
a verdict for plaintiff. After denying a motion by defendant
for a new trial, judgment was entered upon the verdict, and
from this judgment defendant below appealed.
Several grounds are urged for the reversal of this judgment.
To lay a foundation for oral testimony as to the contents of
the deed and covenants mentioned in the declaration, one
Swords, a witness called by plaintiff, testified that Taylor (in
pursuance of a trade made between Taylor and one Brown,
and of a trade made between Brown and the witness,) had con-
sented to convey to Swords certain Iowa lands (for which
the payment was made to Taylor by Brown); and that in lieu
thereof, and at Swords' request, Taylor did make the deed to
Mclrvin, the appellee, and who is the son-in-law of Swords.
Swords also testified, that at the time of the making of this
deed Taylor was owing him a few dollars, and that after the
delivery of the deed Taylor suggested that the deed ought to
be recorded in Iowa, and offered to take the deed to Iowa
and have it recorded, and said as he was owing Swords he
would pay the fees for the recording, and that for that pur-
pose he put the deed in Taylor's hands. Taylor soon after
went to Iowa, and on his return told Swords that he had the
deed recorded. All this occurred in 1859.
Swords also testified that some six months afterward, having
information that the deed had not been recorded, he called on
Taylor, and Taylor said it might not be recorded, but insisted
he had left it there to be recorded and that it was then there
on file, and said he had forgotten to pay the fees.
Swords further testified that about two years before the
commencement of this action he called on Taylor for the
492 Taylor v. McIrvin. [Jan. T.
Opinion of the Court.
numbers or description of this land, for the avowed purpose
of writing for the deed, and Taylor gave him the description.
Taylor was also called as a witness on this question, and he
testified that a short time after Swords put this deed in his
possession, in 1859, he delivered it to the recorder of Webster
county, in Iowa. On cross-examination he said he thought
the name of the recorder then was Morgan, and the deed was
a deed to Brown.
Thereupon plaintiff produced and read in evidence an affi-
davit made by Alexander Beach, on the 5th of August, 1874,
saying he was, at that date, the recorder of the county of
Webster, in Iowa, and that no such deed was on record in his
office, and none such was on file there.
Plaintiff then offered to prove by parol, by Swords, the
contents of the deed. Defendant objected that the proof of
loss was not sufficient, but the circuit court held it sufficient,
and admitted proof of the contents of the deed. Defendant
excepted, and assigns that for error.
In this we find no error. Taylor had not the deed, and,
therefore, a notice to him to produce it would have been
futile. It is said it should have been sought for in Morgan's
hands. If Taylor had told Swords or the plaintiff in apt
time that he simply gave it to Morgan, who was the recorder,
it may be that due diligence would have required inquiry of
Morgan, but Taylor first reported the deed as recorded.
Taylor, it is shown, went into that part of Iowa often, and
as often promised to get the deed and bring it to Swords, and
as often, on his return, said he had forgotten. Afterwards,
when told by Swords that he had learned that no such deed
was on record, Taylor said that might be, but it was surely
among the files. The files were explored and it was not
found. It was only on the trial that Taylor comes forward
with the statement which leads to the suggestion that Mor-
gan's testimony should be produced. At that time Morgan
was in Iowa, and it was impossible to produce him at the
trial. We think the circuit court was right in holding that
1880.] Taylor v. McIrvin. 493
Opinion of the Court.
all had been done to find that deed which the law demanded,
and that plaintiff had a right, under the circumstances, to
prove the contents by secondary evidence.
It is, however, insisted that the ex parte affidavit of the
recorder in Iowa was not competent, and that his testimony
could only be received from him personally in open court, or
by deposition under the statute.
As to matter directly in issue, the testimony of witnesses
must be so taken as to subject the witness to cross-examina-
tion, but as to some collateral or ancillary matters, and among
such as to the loss of a document, affidavits taken ex parte are
competent.
On the trial, Swords was asked, on cross-examination,
whether he had gone through bankruptcy without mention
of this claim, and, on objection, the court refused to require
witness to answer, and this ruling, appellant insists, was in
error. The witness had testified that any judgment in this
case " goes to my benefit." It is now insisted that defendant
ought to have been allowed to prove that this claim was not
in his schedule of credits, for the purpose of impeaching the
witness. It would seem the proof would have been compe-
tent for that purpose. Appellant had the right to ask the
question, but the witness was not bound to answer the ques-
tion, for the answer sought seems to tend to criminate the
witness.
Again, it is insisted that the proof of the contents of the
deed was too indefinite to warrant the finding, and that some
of the questions permitted by the court left the witness to
testify to legal conclusions, rather than distinct facts. Some
of the questions are subject to criticism, and the proof is
somewhat indefinite, but after a careful examination we find
nothing in these suggestions which we think ought to lead
to the setting aside of the verdict.
The judgment must be affirmed.
Judgment affirmed.
494 Germania Fire Ins. Co. v. McKee. [Jan. T.
Syllabus.
The Germania Fire Insurance Company
v.
Mary G. McKee.
1. Practice — finding of Appellate Court conclusive as to the facts. Where
the Appellate Court affirms the judgment of the circuit court, it must of neces-
sity find that the evidence sustains the judgment below, and such finding is,
upon that question, conclusive on this court, on appeal or error.
2. Insurance — neglect of agent to report acts to insurance company no evidence
of collusion. Where an insurance agent, having full power to issue policies
of insurance and to grant special permits, having issued a policy, some six
days afterwards cancelled the same, and issued a new one, and granted a
special permit to the assured, which he failed to report to his principal, it was
held, that evidence of his neglect to report the same, without an offer to show
collusion with the assured, or any evidence to connect the assured with the
omission, was properly refused on the trial of an action on the new policy,
and that such evidence did not tend to show a collusion.
3. Same — false statements in application, made by agent. Where the applica-
tion for an insurance is prepared, signed and presented by the assured, the
insurer has the right to rely upon the truth of the statements therein con-
tained ; and if the statements are false in a material point, the insurer may
refuse to be bound by the policy.
4. But where the assured makes a full and complete disclosure of the title
and situation of the property to the agent of the insurance company, and the
agent deliberately writes false answers, to be signed by the assured, saying
it does not amount to anything, the company will be estopped from denying
its liability.
5. Error will not always reverse. The exclusion of evidence which works
no injury, as, where the same thing proposed to be shown by it clearly ap-
pears from other evidence, though technically an error, is no ground for a
reversal.
6. Evidence — its relevancy. In a suit on a policy of insurance, by a wife,
to recover for the loss of hay, etc., embraced in the policy, the insurance com-
pany offered in evidence a deed of assignment, made by the husband of the
plaintiff, of a lot of hay and other property, which the court refused to admit:
Held, no error, as the evidence was wholly irrelevant, without proof that the
property in the deed of assignment was the same included in the policy.
7. Instruction — must be based on evidence. Although an instruction may
contain a correct proposition of law, yet, if there is no evidence of the facts
upon which it is predicated, there is no error in refusing it.
1880.] Geemania Fiee Ins. Co. v. McKee. 495
Brief for Plaintiff in Error.
Weit of Eeeoe to the Appellate Court for the Third Dis-
trict.
Mr. Geo. W. Gere, for the plaintiff in error, after a state-
ment of the facts, made the following, among other points:
A considerable part of the insured property was, in law
and in fact, the property of Thomas D. McKee.
The defendant in error was not entitled to judgment, be-
cause there was a breach of warranty as to the ownership of
the personal property.
The plaintiff below, under the rules of evidence and law,
was required to make out her case as alleged in her declara-
tion, and herein, of the admission of improper evidence.
The policy provided, if the property "be encumbered by
any lien," etc., it should be void. The declaration averred, that
the plaintiff had in all respects kept and performed the condi-
tions and provisions to be by her kept and performed, and the
plaintiff was permitted to prove, for the purpose of showing a
waiver of the warranty against incumbrances and of the condi-
tion of the policy, conversations between the agent of the
insured and the agent of the company. She pleaded a per-
formance, and was allowed to prove a waiver of performance.
The allegation and proof must correspond. 1 Greenlf. Ev.
sec. 51 ; Tiernan v. Granger, 65 111. 351 ; Taylor v. Beck, 13
id. 376.
The court erred in refusing to admit proper evidence offered
by the defendant below, and in refusing the seventh instruc-
tion asked by the defendant. Fraud and collusion between
the agent of the insurance company and the assured destroys
the rule that knowledge of the agent is to be considered as
knowledge of the company and binding upon it. RocJcford
Insurance Co. v. Nelson, 65 111. 415.
Where direct notice or any notice which the assured, as a
prudent man, is bound to regard, is brought home to him,
limiting the powers of the agent, he relies upon any act in
excess of such limited authority at his peril. Wood on Insu-
496 Germania Fire Ins. Co. p. McKee. [Jan. T.
Brief for Defendant in Error.
ranee, 631, sec. 387; Messereau v. Phoenix Insurance Co. 66
N. Y. 274; Walsh v. Hartford Fire Insurance Co. 73 id. 10.
The assignment of T. D. McKee to Webber, under the
State law, should have been admitted in evidence.
The court erred in not giving the sixth refused instruction
asked by the defendant, and in giving the sixth asked by the
plaintiff. As to notice to agent being notice to principal, and
extent of rule, see 1 Pars, on Cont. (5th ed.) 76, 74, 75.
A warranty is a part of the contract, and must be literally
true. Flanders on Fire Insurance, 226; JEtna Life Insurance
Co. v. France et al. 91 U. S. 510; Burrill v. Saratoga County
Mutual Insurance Co. 5 Hill, 188.
As to fraud or any attempt at fraud on the part of the
assured, vitiating the policy or working a forfeiture, see May
on Insurance, sec. 477; Wood on Insurance, 744; Sleeper v.
N. H. Fire Insurance Co. 56 N. H. 401 ; Security Insurance
Co. v. Fay, 12 Mich. 467.
Where the contract of the parties is reduced to writing, the
writings afford the only evidence of its terms. Abrams v.
Pomeroy, 13 111. 133; Marshall v. Gridley, 46 id. 250; Win-
nesheih Insurance Co. v. Holzgrafe, 53 id. 522 ; Illinois Mutual
Insurance Co. v. O'Neile, 13 id. 93; Schmidt et al. v. Peoria
Mutual and Fire Insurance Co. 41 id. 299; Hulton v. Arnett,
51 id. 198; Lighthall v. Colwell, 56 id. 108; Gibbons v. Bress-
ler, 61 id. 110; Mann v. Smyser, 76 id. 365.
Messrs. Bradley & Bradley, for the defendant in error,
after stating the facts of the case at some length, made the
following points:
As to the point that the property was that of the husband
of the insured, the finding of the facts otherwise by the Ap-
pellate Court is conclusive. Eev. Stat. 1877, p. 746, sees. 88
and 90.
Where the agent of the insured knows the facts in respect
to the property insured, and makes out the application, the
company will be estopped from setting up a breach of war-
1880.] Germania Fire Ins. Co. v. McKee. 497
Opinion of the Court.
ranty in respect to the statement of the condition, etc., of the
property, and parol evidence is admissible to show knowledge
of the facts by the agent. Bronley v. Insurance Co. 36 N. Y.
550; Peck's case, 22 Conn. 575; Beebe's case, 25 id. 51 ;
Franklin's case, 42 Mo. 457; Seal's case, 16 Wis. 241; Ma-
hone's case, 21 Wall. 156 ; May's case, 25 Wis. 306; N. E. F.
and M. Insurance Co. v. Schettler, 38 111. 166; Hartford F.
and M. Insurance Co. v. Comtek et al. 24 id. 455; Howard
Insurance Go. v. Bruner, 23 Pa. (11 Harris) 50; Masters v.
Madison County Insurance Co. 11 Barb. 624; Atlantic Insu-
rance Co. v. Wright, 22 111. 473; F. and M. Insurance Co. v.
Chestnut et al. 50 id. 116; Insurance Co. N. A. v. McDowell,
id. 128; JRochford Insurance Co. v. Nelson, 65 id. 415; Andes
Insurance Co. v. Fish, 71 id. 620; Rockford Insurance Co. v.
Nelson, 75 id. 548 ; St. Paid F. and M. Insurance Co. v. Wells,
89 id. 82; American Insurance Co. v. Luttrell, id. 314.
Where the business of the agent is to solicit for his princi-
pal and procure customers, and he misleads the insured by a
false and erroneous statement of what the application should
contain, or, taking the preparation into his own hands, pro-
cures his signature by an assurance that it is properly drawn,
the description of the risk, though nominally from the insured,
ought to be regarded as proceeding from the company. May's
case, 25 Wis. 306; Schettler's case, 38 111. 166; Wilkinson's
case, 13 Wall. 236; Insurance Co. v. Mahone, 21 Wall. 156,
and cases before cited.
There was no error in the giving or refusing of instructions,
which point the counsel argue at some length.
Mr. Justice Craig delivered the opinion of the Court :
This was an action of assumpsit, brought by Mary G.
McKee against the Germania Fire Insurance Company, on a
policy of insurance issued December 24, 1877, by which the
plaintiff was insured against loss by fire for one year on a
hay barn, cattle sheds, and a large quantity of farming im-
plements, situated on a certain quarter section of land in
32—94 III.
498 Geemania Fire Ins. Co. t>. McKee. [Jan. T.
Opinion of the Court.
Champaigu county. A trial of the cause in the circuit court
resulted in a judgment in favor of the plaintff. An appeal
was taken to the Appellate Court, where the judgment was
affirmed. To reverse the judgment of the Appellate Court
this writ of error was sued out by the insurance company.
In the argument of plaintiff in error the position is taken
that a considerable portion of the insured property belonged
to Thomas D. McKee, the husband of the plaintiff. This is
a question of fact which we can not inquire into. The
Appellate Court having affirmed the judgment of the circuit
court, of necessity found that the evidence established the
ownership of the property in the plaintiff. Under the statute
that finding is conclusive, and can not be reversed on appeal
or error.
It appears, from the record, that on the 18th day of De-
cember a policy was issued on the property in question, No.
20,021, and on account of some mistake contained therein it
was surrendered, and the policy in suit, No. 20,026, issued in
its place.
On the trial the defendant offered to show that its agent,
Hardin, who obtained the risk and issued the policy, had not
reported the cancellation of the first policy nor the issuance
of the other one, and that he had not reported the issuance
of special permits to plaintiff for " steam hay pressing " for ten
days, etc. This testimony was offered for the purpose of show-
ing a collusion between the company's agent, Charles E.
Hardin, who issued the policy, and the plaintiff. The court
excluded the evidence, and the decision is relied upon as error.
If the court had permitted each fact to be proven which
defendant offered to prove, we fail to see how a collusion
could be established by such facts. This agent was clothed
with full authority from the company to issue the policy, and
also the special permits, and the fact that he neglected to dis-
charge his duty to the company would not tend to show col-
lusion between him and the assured. The offered evidence
did not in the least tend to connect plaintiff with the mis-
1880.] Germania Fire Ins. Co. v. McKee. 499
Opinion of the Court.
conduct of the company's agent, and unless she was in some
way connected with his misconduct she could not be pre-
judiced by anything he might do or omit to do.
The defendant also offered in evidence policy No. 20,021,
which had been held by plaintiff for six days and re-
turned and cancelled, the printed portions of which were in
all respects like the one in suit. This evidence was offered
for the purpose of showing that plaintiff had notice, by the
terms of the printed policy, that the authority of the agent
was limited. If it be conceded that this evidence had any
bearing on the question, the policy in suit, which was read in
evidence, when it was accepted by the plaintiff give her all
the notice that the cancelled one did, and if the court com-
mitted a technical error in excluding the evidence, it did
defendant no harm.
It is also contended that the court erred in excluding from
the jury the deed of assignment of Thomas D. McKee to
William B, Webber. This evidence was irrelevant. Had
there been evidence fairly tending to show that the hay and
other property embraced in the assignment was the same in-
cluded in the policy of insurance, then the assignment might
have been competent evidence, but there was no such proof.
It is next urged that the plaintiff was not entitled to a
verdict for the reason that the barn insured was at the time
incumbered, and plaintiff had warranted that the property
was clear of incumbrance. In the application this question
is asked: "What incumbrance is now upon the property?"
Answer: "None." The policy contains a provision that if
the property is incumbered by any lien, whether by deed of
trust, mortgage or otherwise, * * * the policy shall be
void. There is no dispute in regard to the fact that the land
upon which the barn was erected was mortgaged, but it
appears that the agent of the insurance company prepared
the application for the policy, and wrote the answers to the
various questions therein propounded, himself; that he was
500 Germania Fire Ins. Co. v. McKee. [Jan. T.
Opinion of the Court.
fully informed in regard to the mortgage on the property,
and said to the plaintiff, "it did not amount to anything."
Where a policy has been issued under such circumstances,
and there is no collusion between the assured and the agent
of the company, it is well settled in this and other courts
that the insurance company is estopped from insisting upon
the defence of warranty. The Atlantic Ins. Co. v. Wright, 22
111. 473; Mutual Ins. Co. v. Chesnut, 50 id. 116; Andes Ins.
Co. v. Fish, 71 id. 620.
Where the application is prepared, signed and presented by
the owner of the property, the insurance company has the right
to rely upon the truth of the statements therein contained,
and if the statements are false in a material point the com-
pany may refuse to be bound by the policy. But when the
assured makes a full and complete disclosure of the title and
situation of the property to the agent of the company, and
the agent deliberately writes false answers to be signed by
the assured, the company will be estopped from denying its
liability, as was held in The Atlantic Ins. Co. v. Wright, supra.
It is next urged that the court erred in refusing defendant's
instruction No. 4. The substance of this instruction was
given to the jury in instruction No. 1, or at least all that was
necessary on the question of title to the property, and we do
not think it was error to refuse it.
It is also contended that the court erred in refusing defend-
ant's 6th instruction, which was as follows :
" If the jury believe, from the evidence, that at the time
of the making of the application, or at the time of the issu-
ance of the policy sued on, either the plaintiff or her agent,
Thomas D. McKee, apprehended any incendiary danger to the
insured property, then you will find for the defendant."
We find no sufficient evidence in the record upon which this
instruction could be predicated. If, therefore, it contained a
correct proposition, and there was no testimony that McKee
or his wife, when the policy issued, apprehended incendiary
1880.] Lamkin et al. v. The People. 501
Brief for Plaintiffs in Error.
danger, the court did not err in refusing the instruction.
What is said in regard to the decision of the court on this
instruction, applies to the decision of the court in refusing
defendant's instruction No. 2.
So far as is shown by the record, the merits of the case
have been fairly tried and we perceive no substantial error.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
John W. Lamkin et al.
v.
The People of the State of Illinois.
1. Indictment — bad when it shows the offence to be barred. An indictment
for a misdemeanor showing on its face that the offence was committed more
than eighteen months before the finding of the same, without bringing the
case within any of the exceptions under which an indictment may be re-
turned after the expiration of that time, is bad, and should be quashed on
motion of the defendant.
2. Criminal law — what is a felony and what a misdemeanor. A felony, under
our statute, is an offence punishable with death, or by imprisonment in the
penitentiary, while every other offence is a misdemeanor. When the offence
may be punished by imprisonment in the penitentiary, or by fine only, in the
discretion of the court or jury, it is only a misdemeanor, and the eighteen
months' limitation applies to it.
3. Same — limitation construed liberally. The statute of limitations as to the
prosecution for crime is not one of process, to be scantily and grudgingly
applied, but it is an amnesty, declaring that after a certain time oblivion
shall be cast, over the offence. Hence, such statutes are to be liberally con-
strued in favor of defendants.
Writ of Error to the Circuit Court of Champaign county;
the Hon. William E. Nelson, Judge, presiding.
Mr. E. L. Sweet, for the plaintiffs in error:
The court erred in not quashing the indictment. It should
appear on the face of the indictment that the object of the
502 Lamksn et al. v. The People. [Jan.T.
Opinion of the Court.
conspiracy or the means to be employed, is criminal, and an
allegation that the purpose "is to cheat and defraud/'
without more, does not necessarily imply a criminal object.
State v. Jones, 13 la. 269; State v. Roberts, 34 Me. 320; State
v. Parker, 43 N. H. 83; Lambert v. The People, 9 Cow. 578;
March v. The People, 7 Barb. 331.
It is not necessarily a punishable crime to cheat and de-
fraud one of his money, goods or estate, or wrongfully and
wickedly to obtain his money and other property designedly
and with intent to defraud. Therefore, an indictment charg-
ing a conspiracy with such intents, and specifying no criminal
means designed to be used to effect such intent, is insufficient.
Commonviealth v. Hunt, 4 Mete. Ill ; State v. Roberts, 34 Me.
320; State v. Mayberry, 48 id. 218; Commonwealth v. Shedd,
7 Cush. 514; Alderman v. The People, 4 Mich. 414.
Qualifying epithets, such as " unlawful, deceitful," etc., are
not sufficient, unless the facts averred show the offence. Com-
monwealth v. Hunt, 4 Mete. 111.
The prosecution is barred by the Statute of Limitations.
Under the 46th section of the Criminal Code of 1874 the
penalty for a violation of said section is imprisonment in the
penitentiary or a fine.
A felony is an offence punishable with death or by im-
prisonment in the penitentiary. Rev. Stat. 1877, 390, sec.
277; and every other offence is a misdemeanor. Ibid. sec. 278.
Mr. Jas. K. Edsall, Attorney General, for the People.
Mr. Justice Scholfield delivered the opinion of the
Court :
On the 22d day of March, 1879, the grand jury of Cham-
paign county returned into the circuit court of that county,
then in session, an indictment, containing eight counts, against
the plaintiffs in error. In each count, but in different phrase-
ology, plaintiffs in error were charged with conspiring, com-
bining, confederating and agreeing together on the 7th day
1880.] Lamkin et al. v. The People. 503
Opinion of the Court.
of July, in th'e year of our Lord one thousand eight hundred
and seventy-seven, to cheat and defraud Lewis C. Burnett,
Sarah E. Burnett and Thomas McCulloch of their goods,
chattels and property, etc.
In neither count is there any averment that plaintiffs in error
were not "usually and publicly resident within this State" since
the commission of the alleged offence, nor that they were pre-
viously indicted for the same offence, and that such indict-
ment has been quashed or the proceedings thereupon set
aside or annulled. Motion was made to quash the indictment,
which was overruled by the court. Plaintiffs in error were
thereupon placed upon trial, upon which the jury returned a
verdict finding each of them guilty as charged in the eighth
count of the indictment, assessing the fine of the plaintiff in error
Larnkin, at $200, and that of plaintiff in error Lacy at $50.
Motions for new trial and in arrest of judgment were made
by plaintiffs in error and overruled by the court, and the court
then gave judgment upon the verdict of the jury.
We held in Garrison v. The Feople, 87 111. 96, that a count
in an indictment found in September, 1876, charging a lar-
ceny to have been committed in January, 1866, without
showing that the accused had at anytime been a " person
fleeing from justice," in the language of the statute of limit-
ation, then in force, was clearly bad, as showing on its face
that the offence was barred. See, also, 1 Wharton's Crim.
Law (7th ed.), 446, and authorities referred to in note.
The statute of 1874 provides — Division IV of the Crimi-
nal Code, p. 398, sec. 315 : " § 3. All indictments for other
felonies" (than murder, manslaughter, arson and forgery)
" must be found within three years next after the commission
of the crime, except as otherwise provided by law."
316. " § 4. All prosecutions by indictment or otherwise
for misdemeanors, or for any fine or forfeiture under any
penal statute, shall be commenced within one year and six
months from the time of committing the offence or incurring
the fine or forfeiture, except as otherwise provided by law."
504 Lamkin et al. v. The People. [Jan. T.
Opinion of the Court.
317. "§ 5. No period during which the party charged
was not usually and publicly resident within this State shall
be included in the time of limitation."
318. " § 6. When an indictment, information or suit is
quashed, or the proceedings on the same are set aside or re-
versed on writ of error, the time during the pendency of such
indictment, information or suit so quashed, set aside or
reversed shall not be reckoned within the time limited by
this act so as to bar any new indictment, information or suit
for the same offence."
The latter two sections containing the only exceptions
" provided by law" to the period of limitation fixed by the
statute, it only remains to inquire whether the offence of
which plaintiffs in error were indicted and convicted is a
felony or misdemeanor under our statute.
The statute says : " A felony is an offence punishable with
death or by imprisonment in the penitentiary.
" Every other offence is a misdemeanor." Rev. Stat. 1874,
p. 394, 277 § 5, 278 § 6.
It will be noted, " a felony is an offence punishable," — that
is, absolutely punishable, not that may or may not be " pun-
ishable with death or by imprisonment in the penitentiary,"
while the offence of which plaintiffs in error are indicted and con-
victed here shall be punishable by imprisonment in the peni-
tentiary or by fine. Surely it is no more accurate, in view of
this language, to say this offence is punishable by imprison-
ment in the penitentiary than to say it is punishable by fine,
and it is impossible to say, under any rule of construction,
that we are bound to lay more stress on the language fixing
the punishment by confinement in the penitentiary than on
that fixing the punishment by fine. On the contrary, the
rule of construction applicable here is, unless it clearly ap-
pears this offence was intended to be denominated a felony, it
shall be denominated a misdemeanor, Wharton, in the first
volume of his work on Criminal Law (7th ed.), sec. 444 a,
says, in speaking of the construction of statutes of limita-
1880.] Johnson v. The People. 505
Syllabus.
tion: " Here, the State is the grantor, surrendering by apt
of grace its right to prosecute, and declaring the offence to be
no longer the subject of prosecution. The statute is not a
statute of process, to be scantily and grudgingly applied, but
an amnesty, declaring that after a certain time oblivion shall
be cast over the offence; that the offender shall be at liberty
to return to his country and resume his immunities as a
citizen, and that from henceforth he may cease to preserve
the proofs of his innocence, for the proofs of his guilt are
blotted out. Hence it is that statutes of limitation are to be
liberally construed in favor of the defendant, not only be-
cause such liberality of construction belongs to all acts of
amnesty and grace, but because the very existence of the
statute is a recognition and notification by the legislature of
the fact that time, while it gradually wears out proofs of in-
nocence, has assigned to it fixed and positive periods in which
it destroys proofs of guilt."
It appearing, then, this offence is a misdemeanor, and the
face of the indictment disclosing that the offence was com-
mitted more than eighteen months before the finding of the
indictment without bringing the case within either of the
exceptions under which an indictment may be returned after
the expiration of that time, the motion to quash should have
been sustained, aud the court erred in overruling it. For
that error the judgment is reversed and the cause remanded.
Judgment reversed.
Charles Johnson
v.
The People of the State of Illinois.
1. Criminal law — indictment — perjury. An indictment for perjury in
making an affidavit of the qualification of a person to vote at an election
held in pursuance of law, the vote of such person having been challenged,
which charges that the defendant feloniously, wilfully, corruptly and falsely
506 Johnson v. The People. [Jan. T.
Syllabus.
in and by the said affidavit did depose, etc., omitting the word "knowingly,"
used in the Election law, is not bad on account of the omission of such word,
the word " wilfully" implying intention as well as deliberation and purpose.
2. An indictment for perjury in making an affidavit of the qualification
of a voter, which avers that there was an election for trustees and a clerk for
a certain village named, called and held in pursuance of law therein, is a suffi-
cient, averment that the election board was legally organized according to
law, and an averment that the judge of election who administered the oath
had full power and authority to administer the same, is a sufficient, allegation
of the legal organization of the board of election.
3. In such a case there need be no averment as to the manner in which
the election board was organized, nor is it required to be averred who the
officer was who administered the oath, and to set it out, or to aver that the
officer who administered it had been duly elected, setting out his commission
and oath of office. When it is averred that persons were acting as a board
of election, proof of that fact is all that is required.
4. An indictment for perjury must show the materiality of the matter de-
posed to, but where it shows that at an election, held in pursuance of law, a
person made an offer to vote, and his vote on challenge had been rejected, and
thereupon it became material that the defendant should make an affidavit that
the person so offering to vote was a resident of the election precinct, and that
he did make and swear to such affidavit, this will sufficiently show the mate-
riality of the matter sworn to.
5. Per jtjry— swearing from mere information and belief. Where a party hon-
estly believes statements made by him in an affidavit, which prove to be untrue,
he will not be guilty of perjury, but the jury, in determining the fairness and
honesty of that belief, are bound to look to all the evidence showing the cir-
cumstances under which the oath was taken; and if, from the evidence, it
appears that a reasonable man could not have held an honest belief of the
fact sworn to, it will be their duty to find the oath false, and that the defend-
ant intended to swear falsely. The belief of the accused must be reasonable,
and not capricious and wilfully entertained without reasonably fair evidence
upon which it may be based.
6. Elections — residence to entitle person to vote. The constitutional pro-
vision that every person who shall have resided in the State, etc., shall be
entitled to vote, means that he must have a permanent abode in the State,
county, etc., in which he offers to vote, and hence there is no repugnancy be-
tween such provision and the Election law as to the character of his residence.
7. Witness — rule as to disregarding impeached witness' evidence. There is no
well founded distinction in instructing the jury that if they believe, from the
evidence, that a defendant has sworn wilfully false as to any of the facts in
issue in the case, instead of saying as to any material facts in the case, they
1880.] Johnson v. The People. 507
Statement of the case.
may disregard all his testimony unless corroborated, etc., all facts in issue
being material.
8. Instruction — should not tell the jury that certain evidence is inadequate.
On the trial of one indicted for perjury in making an affidavit of the residence
of a person to enable him to vote, the court instructed the jury that the
declarations of the person voting, made to the accused, as to where he resided,
or what place he called his home, or where he got his' washing done, gave no
such knowledge as the law required upon which to enable the accused to base
an affidavit as to the voter's residence, etc.: Held, that the instruction was
erroneous, in invading the province of the jury by telling them the evidence
was inadequate to create an honest belief in the accused.
Writ of Error to the Circuit Court of Ford county ; the
Hon. Owen T. Reeves, Judge, presiding.
This was an indictment against Charles Johnson for per-
jury. The second count of the indictment, omitting the
formal parts, is as follows :
" That Charles Johnson, on, etc., at, etc., at a certain elec-
tion for trustees and village clerk of the village of Gibson, in
said county, called and held in pursuance of law, in said
village of Gibson, one Oscar Selberg having offered to vote
at said election, and his said vote having been challenged by
a legal voter at said election, by reason of said challenge his
vote was refused by the judges of said election, then and there
present, whereby it became material that an affidavit, as
required by law, should be made, he, the said Charles John-
son, came in his own proper person before J. B. Goshorn, one
of the judges of said election, and then and there produced a
certain affidavit of him, the said Charles Johnson, and then
and there before the said J. B. Goshorn, judge as aforesaid,
in due form of law, was sworn concerning the truth of the
matter contained in said affidavit, he, the said J. B. Goshorn,
then and there having full power and authority to administer
the said oath to him, the said Charles Johnson, in that behalf;
and that the said Charles Johnson, being so sworn, then and
there upon his oath aforesaid, before the said J. B. Goshorn,
who had full power and authority to administer the same as
judge of said election, feloniously, wilfully, corruptly and
508 Johnson v. The People. [Jan. T.
Brief for Plaintiff in Error.
falsely, in and by his said affidavit, did depose and swear (among
other things) in substance and to the effect following, that is
to say : that the person whose vote is now offered (meaning
the said Oscar Selberg) is an actual and bona fide resident of
this election district (meaning the said village of Gibson),
and has resided herein (meaning said village of Gibson)
thirty days next preceding this (meaning said election then
and there being held) election, as in and by the said affidavit
will at large and more fully appear, it being then and there
material that the said Oscar Selberg should be an actual and
bona fide resident of said village of Gibson, and should have
resided therein thirty days next preceding said election, in
determining his right then and there to deposit his vote with
the judges of said election; whereas, in truth and in fact, as
the said Charles Johnson then and there well knew, the said
Oscar Selberg, at the time the said Charles Johnson made his
oath and affidavit as aforesaid, was not an actual and bona fide
resident of said election district, and had not resided therein
thirty days preceding said election," etc.
Messrs. Tipton & Ryan, for the plaintiff in error:
The second count in the indictment, the one on which the
conviction was had, is defective.
It is not sufficiently averred that the officers of the election
were legally constituted and organized according to law to
receive all legal votes for the officers to be elected.
It is not averred that Selberg offered to vote for any of said
officers, or that he did vote for any of them, or that the judges
were acting in their official capacity, and that the oath was
taken before the judges, etc.
It is not sufficiently alleged that the oath was administered
in the village of Gibson. Vandusen v. The People, 78 111.
645.
It is not sufficiently alleged that the judges of the election
were so organized and sworn, and that they were acting as
such judges as to authorize them, or either of them, as such
1880.] Johnson v. The People. 509
Brief for Plaintiff in Error.
judges of election, to administer the oath. Biggerstaffv. The
People, 11 Bush, 169.
There is no averment of facts authorizing the judges to
administer the oath in question. Rev. Stat. 460, sees. 67, 68.
The indictment is bad in not averring that Selberg was not
known to the judges to have the qualifications mentioned in
sections 65 and 66 of the Election law, and in failing to show
that Selberg made and subscribed the affidavit required in
section 67. The statute requires the affidavit of the person
offering to vote as well as that of a witness. Vandusen v.
The People, 78 111. 645; State v. Gillmore, 2 Ind. 374; Bex v.
Bishop, 1 Carr. and Marsh, 302 ; Com. v. Lodge, 2 Gratt. 579;
Pollard v. The People, 69 111. 148 ; Hembree v. State, 52 Ga. 252 ;
Morrill v. The People, 32 111. 499; The People v. Gaige, 26
Mich. 30.
The indictment fails to aver that the affidavit was know-
ingly, wilfully, corruptly and falsely made. It omits the
word " knowingly." The 80th section of the Election law
requires the perjury shall be knowingly made. Podge v.
State, 4 Zabr. 455; State v. Farran, 10 Rich. L. (S. C.) 165.
As to who are legal voters, the following authorities were
cited : Const, of 111. art. 7, sec. 1 ; Lemoyne v. Farwell, (in
contested election cases,) 44 Cong. p. 406; Cooley Const. Lim.
64; Riner et al. v. Parr, 24 Ark. 161.
As to what is a permanent abode, counsel cited, Pale v.
Irwin, 78 111. 181; Hays v. Hays, 74 id. 312; Wilkins v.
Marshall, 80 id. 74; City of Beardstown v. City of Virginia,
81 id. 541; Payne v. Town of Dunham, 74 id. 512; Duncan
v. United States, 93 U. S. 610.
The ninth instruction informed the jury that if they be-
lieved Johnson wilfully swore falsely as to any of the facts in
issue in the case, they might disregard all of his testimony in
the case, unless corroborated by other witnesses or facts proven
in the case. It is clearly erroneous, for the reason that it does
not limit his evidence to material facts. Peak v. The People,
76 111. 289; Blanchard v. Pratt, 37 id. 243; Mixwell v. Wil-
510 Johnson v. The People. [Jan. T.
Opinion of the Court.
liamson, 35 id. 529; Otmer v. Tlie People, 76 id. 152; Haines
The People, 82 id. 430; Angelo v. Faul, 85 id. 106.
It also omits the essential element, that the witness had
knowingly sworn falsely. Phillips et al. v. Moir et al. 69 111.
155; Brennan v. The People, 15 id. 512; City of Chicago v.
Smith, 48 id. 107.
Mr. James K. Edsall, Attorney General, for the People.
Mr. Chief Justice Walker delivered the opinion of the
Court :
An election was held in the village of Gibson, in the county
of Ford, in this State, on the 16th day of April, 1878, for the
election of trustees and town clerk. One Selberg offered his
vote, and, it being challenged, it was rejected, and plaintiff in
error filed an affidavit of his residence, to enable him to vote.
He was afterwards indicted for perjury, tried, convicted, and
sentenced to the penitentiary for one year. To reverse that
judgment he prosecutes error.
It is insisted that the second count of the indictment under
which the conviction was had is insufficient, and the court
below erred in refusing to quash it; that, inasmuch as it is
not charged that the affidavit was knowingly made, it is
vicious, under the 80th section of the Election law. That
section provides, that if any witness sworn under that chapter
shall knowingly, wilfully and corruptly swear falsely, he shall
be deemed guilty of perjury, etc. The 225th section of the
Criminal Code, in defining perjury, omits the word "know-
ingly," and only requires the oath to be wilfully and cor-
ruptly false; and it is believed that such is the definition of
most, if not all, of the criminal codes of the various States
of the Union. It is difficult to comprehend how a person
can wilfully and corruptly swear falsely without doing so
knowingly. The word "wilfully" usually implies intention
as well as deliberation and purpose, and if the purpose was to
swear falsely, it must follow that it was done knowingly; but
1880.] Johnson v. The People. 511
Opinion of the Court.
the indictment is sufficient under the 408th section of the
Crimininal Code, which provides, that if the presentment be
made in the language of the statute, or so plainly that the
nature of the offence may be easily understood by the jury,
it shall be sufficient; and this presentment complies with that
requirement, and must be held good.
It is urged that the second count does not sufficiently aver
that the election board was legally organized according to
law to receive votes, etc. It does aver that there was a certain
election for trustees and village clerk for the village of Gib-
son, called and held in pursuance of law therein. This is an
averment that the board was legally constituted. If it was
not, then it would not have been held in pursuance of law.
It is also averred that J. B. Goshorn had full power and
authority to administer the oath as judge of the election.
This averment is comprehensive, and if he was not a judge
of the election, he could not lawfully administer the oath;
and if the board had not been organized, he would not have
been a judge of the election, and would not have had lawful
power and authority to swear plaintiff in error.
It requires but a superficial knowledge of pleading to
understand that in such a case there need be no averment as
to the manner in which the board was organized. It is not
required that it be averred who the officer was who adminis-
tered the oath, and to set it out, or to aver the officer who
administered the oath had been duly elected, setting out his
commission and oath of office. To require such averments
would lead back indefinitely and collaterally, without end, to
fiiwl a point where it could be absolutely known that the offi-
cer acting was undoubtedly legally elected. Where persons
are found acting and performing the functions of public offi-
cers, the law presumes that they are rightfully acting, and
proof is not required of that fact in any collateral proceed-
ing. These persons were acting, it is averred, as an election
board, and proof of that fact was all that was required, and
all know that the proof must never be more limited than the
512 Johnson v. The People. [Jan. T.
Opinion of the Court.
averment. The one must be as broad and no broader than
the other. This count in this respect was sufficient.
It is, however, insisted that the count was bad under the
decision in the case of Morrill v. The People, 32 111. 499. This
indictment is by no means artificially drawn, but we think it
is not obnoxious to the objection that existed in MorrilVs
case. There, no averment was made that there was pending a
proceeding when the affidavit was made in which it could be
used, or that any such proceeding afterwards existed. It, in
that case, did not charge that a motion for a continuance had
been made, or was ever made, and if no such motion was
pending, or was afterwards made, there was no lawful occasion
for making the affidavit. But here, it is averred that Selberg
had offered to vote and his vote had been rejected, and that
thereupon it became material that plaintiff in error should
make an affidavit that Selberg was a resident of the election
precinct, and that he did make and swear to it. This, we
think, avers and shows its materiality. It shows the effort to
vote was made and disallowed, and the law then required that
a voter of the precinct should make such an affidavit before
he could vote. There is nothing showing Selberg had with-
drawn his application. Hence its materiality is shown. In
that case it was not, nor could it be, material until it was
shown a matter was pending in which it could be lawfully
used, and none such was shown. But here, the matter is
shown to have been before the election board, and Selberg
could not vote until such an affidavit was made and presented
to the board. Hence its materiality. The lawful occasion
is, we think, sufficiently averred.
It is also urged that the court erred in its definition of the
word resident. It is not objected that the instruction does not
follow the statute, but it is claimed that the statute is uncon-
stitutional. The 66th section of the Election law defines a
residence to be a permanent abode. The first section of
article seven of the organic law declares that every person
who shall have resided in the State, etc., for the periods
1880.] Johnson v. The People. 513
Opinion of the Court.
named, and being a citizen, etc., shall be entitled to vote. It
is claimed that the terms residence, and permanent abode, are
entirely different, and the latter term requires more than the
former. But in the case of Spragins v. Houghton, 2 Scam.
377, the court said : " Every man is a resident who has taken
up his permanent abode in the State." We must presume
the framers of the constitution used the word in the sense in
which it had been defined in that case. There was, there-
fore, no error in instructing the jury that Selberg must have
had a permanent abode in the village to have such a residence
as entitled him to vote, as the law is not repugnant to the
fundamental law of the State.
It is urged that the court erred in giving the first and
second instructions for the people. They state that " decla-
rations made by Selberg to Johnson as to where he resided, or
what place he called his home, or where he got his washing
done, gave no such knowledge as the law requires upon
which to base an affidavit that Selberg had resided there
thirty days next preceding said election, or that he, said
Selberg, was an actual bona fide resident there. If plaintiff
in error honestly believed, as he stated in his affidavit, that
Selberg was a bona fide resident of the election district and
had been for thirty days, then he was not guilty of wilful
and corrupt perjury. But the jury, in determining the fair-
ness and honesty of that belief, were bound to look to all of
the evidence showing the circumstances under which the oath
was taken. If from the evidence it appeared that a reasona-
ble man could not have held an honest belief of a bona fide
residence, then they would be compelled to find the oath false
and that he intended to swear falsely. A man can not corruptly
swear falsely and shield himself from the penalty of perjury
by stating in his affidavit that he believes his statement to be
true, nor can he escape by showing slight facts which are in-
sufficient to create a reasonable belief. If, on the considera-
tion of all the evidence, the jury believe that it was only a
pretence that he believed statements of others, which are
83—94 III.
514 Johnson v. The People. [Jan. T.
Opinion of the Court.
contradicted by other circumstances, they should give no
weight to such pretences. A person has no right to act reck-
lessly, shut his eyes to facts and evidence and wholly ignore
them, and then escape the consequences of his reckless dis-
regard of truth by pretence that trifling facts, improbable
statements of others, and evidence that could convince no one,
had led him to believe that his statements are true.
All know that we can not look into and inspect the mind
of another, but we can judge of his motives by his acts.
And it is true that this is a crime hard to establish, but the
motives may be established by the circumstances under which
accused takes the oath. On the truth or falsehood of evi-
dence all of our rights depend. By false evidence all rights,
whether of life, liberty, reputation or property, depend.
Hence the crime has been denounced as the most infamous
and detestable. Persons may guard and protect themselves
against most other crimes, but against this they have and can
have no security. And to permit persons to escape on a mere
pretence that they believed the false statements, is highly
calculated to subject all classes of persons to the most
grievous wrongs. The belief of the accused should be reason-
able, and not capricious and wilfully entertained without
reasonably fair evidence upon which it may be based. But
in these instructions the court invaded the province of the
jury by telling them the evidence was inadequate to create
an honest belief in the accused. That was for the jury to
determine and not for the court.
Objections are made to the people's ninth instruction. It
is insisted that it is not sufficiently limited. By it the jury
are told that if they believed the defendant swore wilfully
false as to any of the facts in issue in the case, they might
disregard all of his testimony unless corroborated, etc. It is
claimed that they should have been instructed that he so
swore as to some material fact, before they might disregard
his evidence unless corroborated. We are unable to perceive
any well founded distinction in telling them that the evidence
1880.] Kingery v. Berry. 515
Syllabus.
must be wilfully false as to any of the facts in issue, and as to
material facts in the case. All facts in issue are undoubtedly
material, because the whole case depends upon the facts in
issue. There was no error in giving this instruction.
But for the error indicated, the judgment of the court be-
low is reversed and the cause remanded.
Judgment reversed.
Daniel Kingery
v.
Joshua Berry.
1. Preserving evidence — presumption in contested election case. On appeal
from the judgment of a county court, in a statutory proceeding to contest the
alleged election of a person as commissioner of highways, it is not the rule
that the judgment will be presumed to have been sustained by the proofs
unless the bill of exceptions purports to contain all the evidence, but the pro-
ceeding is to be regarded as in the nature of a chancery proceeding, and the
rule in chancery should apply, that, to uphold the decree, it must appear from
the record that it is supported by the proofs.
2. Contested election — loeight of evidence — improper handling of ballots.
Upon the contest of an election in respect to the number of votes cast for the
candidates, respectively, where there is a disagreement as to the result
between the poll books, tally lists, and certificate of the result of the canvass
by the election officers entered in the poll books, supported by the testimony of
those officers on the one side, and the ballots themselves on the other side,
ordinarily the ballots are the better evidence, and control.
3. But where it is shown the ballots have been improperly handled by the
contestant, out of the presence of the other party or of the election officers,
and under circumstances rendering it possible for them to have been tampered
with, the ballots, by reason of such intermeddling, will lose their value as evi-
dence, and will not prevail as against the result shown by the poll books,
the tally lists, and certificate of the result of the canvass of the votes by the
election officers, supported by the testimony of such officers.
4. In this case, after the canvass of the votes given at an election, and the
result announced, and the ballots placed in the custody of the officer appointed
by law for that purpose, that officer, together with several other persons,
including the candidate adversely to whom the result had been announced, out
516 Kingery v. Berry. [Jan. T.
Briefs for the Appellant and the Appellee.
of the presence of the other party and of the election officers, opened the bal-
lot-box and handled the ballots, — they took the ballots out of the ballot-box,
unstrung them from the thread they were on, upon a table in a pile, — then put
them back in the box and counted them, and strung them again. In a pro-
ceeding to contest the election, subsequently instituted by the party against
whom the result had been found, on the allegation that he had received more
rotes than his competitor, it was held these ballots could not be counted in
favor of the contestant and as controlling the result shown by the poll books,
tally lists, and certificate of the result of the canvass by the proper officers,
supported by the testimony of those officers, and this, notwithstanding there
was no evidence the ballots had been tampered with or altered, and that, those
of the persons who had so handled the ballots, who were examined, testified
they had no knowledge of any change being made in them, and thought they
would have known if such a thing had been done. The ballots lost their
value as evidence solely upon the ground of the improper and unlawful hand-
ling of them by the contestant, under the circumstances mentioned.
Appeal from the County Court of Cumberland county
Mr. N. L. Scranton, for the appellant:
The law is, that this class of cases shall be governed by the
rules of chancery practice, and the defendant had a right to
have his evidence taken in writing by deposition or other-
wise, and was entitled to time to take the same. Bale v.
Erwin, 78 111. 171.
The court erred in receiving in evidence the ballots after
they had been tampered with in the absence of Kingery, and
in refusing a change of venue.
The order or finding of the court in this case, from the
facts shown by the record, is erroneous. McCrary Am. Law
of Elections, side pages 277, 279, 280; Gooding v. Wilson,
42 Congress; Butler v. Lehman, 1 Bart. 354; Kline v. Verree,
id. 381 ; Archer v. Allen, id. 169; Kansas case, 2 Parsons,
599; Thompson v. Ewing, 1 Brewst. 67-97.
Messrs. Brewer & Son, and Messrs. Green & Woods, for
appellee :
The court did not err in not granting appellant's motion to
take the evidence in writing, for the appellant gave no notice
1880.] Kingery v. Berry. 517
Brief for the Appellee.
that he desired to take it in writing, nor did he make his
application for the same until the cause was set down for hear-
ing and the trial had commenced.
Mr. E. Caleahan, also for the appellee :
There is no evidence preserved in the record from which
the court can determine whether the court below did or did
not err in its judgment against appellant. The paper copied
as a bill of exceptions is not certified by the judge to contain
evidence in this case. The judge makes no certificate in
regard to it whatever. Unless a bill of exceptions states that
it contains all the evidence in the case, the presumption is
that there was sufficient evidence to sustain the finding of the
court below. Trustees v. Lefler, 23 111. 90; Ottawa Gas Light
and Coke Co. v. Graham, 35 id. 346 ; Peoria, etc. R. R. Co.
v. Mclntyre, 39 id. 298 ; Illinois Central Railroad Co. v.
Garish, 39 id. 370; Board of Trustees, etc. v. Meisenheimer ,
89 id. 370.
Then again, the paper purporting to be a bill of exceptions
was never sealed by the judge of the court below. Under our
statute it is the duty of the judge to allow exceptions, and
sign and seal the same, and the exceptions thereupon become
a part of the record of the case. Rev. Stat. 1874, page 782,
sec. 60.
When there is no seal to a bill of exceptions, this court
will not look into it to see if there is error. Miller v. Jenkins,
44 111. 443.
There being no bill of exceptions in this record, the appel-
lant's motion for a change of venue and his excepting to the
refusal to grant the same, are out of the case. Phillips v. The
People, 88 111. 160.
The jurisdiction of the county court to try a contested elec-
tion, at any term, is unquestionable. It is the " county
court" that is vested with " jurisdiction in all matters of pro-
bate, " etc., (Constitution, article 6, sec. 18,) and it is the
county court that " shall hear and determine contests of elec-
518 Kingery v. Berry. [Jan. T.
Opinion of the Court.
tion of all other county, township and precinct officers," etc.
Rev. Stat. 1874, page 464, sec. 98.
Mr. Justice Sheldon delivered the opinion of the Court:
This was a proceeding by petition under the statute, brought
by Joshua Berry, in the county court of Cumberland county,
to contest the alleged election of Daniel Kingery to the office
of commissioner of highways in the town of Woodbury, in
said county, at the annual April election, A. D. 1879.
The canvass of the votes, as made by the judges and clerks
of election, upon the closing of the polls gave Kingery 70
and Berry 68 votes, electing Kingery by two majority.
The county court, upon the hearing, found that the peti-
tioner, Berry, received at the election 71 votes, and the defend-
ant, Kingery, 6Q votes, and adjudged accordingly that Berry
was elected. Kingery appeals to this court.
As the bill of exceptions does not purport to contain all
the evidence in the case, it is objected by appellee that there
should be no review by this court of the finding of the court
below upon the facts, but that it should be held correct, the
presumption being that there was sufficient evidence to sustain
the finding, as has been repeatedly ruled by this court.
We are of opinion that this proceeding, under the statute
regulating it, is in the nature of a chancery proceeding, and
that the rule in chancery practice should be applied here, that
to uphold the decree it must appear from the record that it is
supported by the proofs.
It appears in evidence that some twenty days after the
election, the town clerk, in whose keeping the ballot-box was
entrusted, with eleven other persons, one of whom was this
petitioner, acting with him, opened the ballot-box and handled
the ballots, — that they took the ballots out of the ballot-box,
unstrung them from the thread they were on, upon a table in
a pile, then put them back in the box and counted them out
and strung them again. This was done wrongfully, without
any authority whatever. Appellant, Kingery, was not present,
1880.] Ktngery v. Beery. 519
Opinion of the Court.
>
nor any of the judges or clerks of the election, neither did
either of them have any notice of the proceeding.
The statute in regard to the preservation of the ballots at an
election is very strict, requiring them to be carefully enveloped
and sealed up by the judges of election and delivered to the
officer who is charged to keep them, and that such officer
shall carefully preserve the ballots for six months, and at the
expiration of that time shall destroy them by burning, with-
out the package being previously opened, provided that if
there shall be any contest of election pending they shall not
be destroyed till it is determined ; and that in cases of such
contest the parties contesting shall have the right to have the
package of ballots opened and the ballots referred to by wit-
nesses. The opening of the package of ballots was for no
such purpose as above provided, and was some time before
the commencement of this proceeding.
Six of the persons present at the occasion were examined as
witnesses, and testify that they did not know of any change or
alteration of the ballots, and think they would have known
it had there been; still, they admit there might have been
such change or alteration. The six others were not witnesses
in the case.
All the judges and clerks of the election testified that the
canvass made by them was correct, and that the ballots cast
and canvassed by them showed the election of appellant by
two majority, there being 70 votes for him and 68 for appellee.
The poll-books and tally-lists in evidence showed that appel-
lant received 70 votes and appellee 68. There was no distinct
evidence what the ballots did show. This, with the examina-
tion of the ballots by the court, was substantially all the evi-
dence appearing in the case.
The final order recites: "And the court, after hearing the
evidence and examining the ballots or tickets, poll-books and
tally-lists used and kept in said election offered in evidence,
doth find that at said election the petitioner received 71 votes
and the defendant 66 votes."
520 Kingery v. Beery. [Jan. T.
Opinion of the Court.
To have warranted such a finding by the court the ballots
must have shown, differently from what the poll-books, tally-
lists and certificate of the result of the canvass did, that
appellee was elected, and the ballots must have been accepted
as the best evidence in the matter. -Ordinarily they are the
best evidence. When we have before us the very ballots that
were cast by the voters, as between the ballots themselves
and a canvass of the ballots made by the election officers, the
ballots are controlling. But here the court was not sure that
it had before it the identical and unaltered ballots which were
deposited by the voters. There had been an unlawful inter-
meddling by appellee, and others in conjunction with him,
with the ballot-box, and a handling of the ballots, affording
an opportunity for the change and alteration of ballots.
The ballots may have been tampered with. There is not
full proof that they were not. There was a motive for
such tampering, at least on the part of appellee, if not the
others engaged with him. The wrong-doer should not be
allowed to profit by his violation of the sanctity of the ballot-
box. He might do so were these ballots to be received and
accredited as the identical ones cast by the voters.
Upon this subject the Supreme Court of Kansas lay down
the following rule : In order to continue the ballots con-
trolling as evidence, it must appear that they have been pre-
served in the manner and by the officers prescribed in the
statute, and that while in such custody they have not been
so exposed to the reach of unauthorized persons as to afford a
reasonable probability of their having been changed or tam-
pered with, Hudson v. Solomon, 19 Kansas, 177, and see
Cooley Const. Lim. 625.
It will be salutary to adopt such rule as will not lend en-
couragement to the repetition of such practice with the ballot-
box as this case discloses.
The intermeddling with the ballots here has brought sus-
picion upon their purity, sufficient, in our view, to discredit
their character as the best evidence; and we think, under the
1880.] Notes et ah v. Kern. 521
Brief for the Appellants.
circumstances of this case, that as between the ballots exam-
ined by the court, and the poll-books, tally-lists and certifi-
cate of the result of the canvass by the election officers,
entered in the poll-books as required by kw, supported as
they here are by the testimony of said officers, the latter should
be taken as the better evidence of the result of the election,
and should control.
The judgment is reversed and the cause remanded.
Judgment reversed.
Ebenezer Noyes et al.
v.
John A. Kern.
1. Change op venue — waived by going to trial without objection. Where, two
years after applying for a change of venue, the parties submit the cause to
hearing before the same judge against whom the petition for the change was
filed, the party applying for the change of venue making no objection, this
court will not inquire whether the court erred in overruling the application.
By going to trial before the same judge without objection, the party waives
any error, if any, in the previous ruling upon the motion.
2. Former adjudication. Where the vendor of land, after the full pay-
ment of the principal of the purchase money, tenders the vendee a deed,
demanding the payment of interest which he claims to be due on the purchase
money, and, on refusal to pay the same, brings suit to recover such interest,
and, on a trial, fails, and judgment is rendered in bar against him, that judg-
ment will be conclusive evidence against him that the vendee owes him no
interest, in all courts, whether of law or equity, and he can not defeat a bill
for specific performance by his vendee by setting up in defence that the vendee
owes him interest.
Appeal from the Appellate Court for the Third District ;
the Hon. Chatjncey L. Higbee, presiding Justice, and Hon.
Oliver L. Davis and Hon. Lyman Lacey, Justices.
Mr. J. F. Hughes, for the appellants:
The application for a change of venue being strictly in con-
formity with the requirements of the statute, duly verified and
522 No yes et al. v. Kern. [Jan. T.
Brief for the Appellee.
accompanied by the written consent of Henley, the co-defend-
ant, together with the written acknowledgment of service of
notice of Kern's solicitors, and presented on the first day of
the term after the filing of the bill, should have been granted.
The refusal was error. Knickerbocker Insurance Co. v. Tol-
man et al. 80 111. 106.
The position and claim of the complainant is unconscion-
able and inequitable. He should be denied relief and remitted
to his remedy at law. Stone v. Pratt, 25 111. 34; Stow v. Rus-
sell, 36 id. 31; Lear v. Choteau, 23 id. 42; Lewis v. Lyons, 13
id. 121; Kimball v. Toole, 70 id. 564.
He who asks equity must do equity. Having appealed to
the conscience of the chancellor for equitable relief, he must,
as a condition to such relief, have equitably performed or ten-
dered such performance on his part. Where a party avails
himself of an advantage at law in lieu of performance, a court
of chancery will remit him to his remedy at law on the con-
tract. Stone v. Pratt, 25 111. 34.
A bill for specific performance is addressed to the sound
legal discretion of the chancellor, and, although a legal con-
tract may exist, it will not be decreed as a matter of course.
Alexander v. Hoffman, 70 111. 119; Kimball v. Toolce, id. 564;
Hunter v. Bilyeu, 30 id. 250; Carver v. Lasater, 36 id. 194.
The cross-bill alleges the omission, by mistake, of the stipu-
lation for interest in the face of the bond, and prays that the
bond may be reformed to correspond with the contract as
made. The court should have granted the relief prayed
therein. Cunningham v. Wrenn, 23 111. GQ; Savage v. Berry,
2 Scam. 547; Ballance v. Underhill, 3 id. 459; McClosky v.
McCormick, 44 111. 336.
Messrs. Craig & Craig, for the appellee:
Notice of the application for a change of venue should have
been given at the earliest period, and the application should
have been made in vacation. Kelly v. Doivns, 29 111. 74;
Moss et al. v. Johnson, 22 id. 639; McCann v. The People, 88
1880.] No-yes et at. v. Kern. 523
Opinion of the Court.
id. 106; White v. Murtland, 71 id. 258; Harding v. Town of
Hale, 83 id. 503.
The appellant Noyes went to trial, without objection, before
the Hon. C. B. Smith, when there were two other judges in
the circuit. When the reason for a change of venue ceases to
exist, the necessity and right to a change of venue will also
cease. Myers v. Walker, 31 111. 360.
The trial at law settled the question that there was nothing
due the defendant under the contract. Marriat v. Hampton,
7 T. R. 142; Headly v. Shaw, 39 111. 365; City of Chicago v.
Sansum, 87 id. 185; Abrams et al. v. Camp, 2 Scam. 290;
Goodrich v. City, 6 Wall. 566.
A party can not have a contract reformed for mistake after
he brings suit thereon, and judgment is rendered on it. Slbert
v. McAvoy, 15 111. 108; Rogers v. Higgins, 57 id. 247; Kelly
v. Donlin, 70 id. 385.
Mr. Chief Justice Walker delivered the opinion of the
Court:
The first question is, should the decree of the circuit court
have been reversed because the court refused to grant a change
of venue in this case? The petition on which the application
was made, was presented at the April term of the court, in
1876, and on the first day of the term next succeeding the
filing of the bill. Notice that such an application would be
made was served on the attorneys of the appellee, on the 11th
day of that month. On the 25th, it was stipulated that the
cause should be tried in vacation, but such a trial was not
had, but at the April term, 1878, the cause was submitted to
and tried by the same judge against whom the petition for
the change of venue had been filed two years previously, and
this, too, without any objection by appellant.
We will not stop to inquire whether the circuit court erred
in refusing to change the venue, inasmuch as appellant clearly
waived all error, if any existed, by going to trial before the
same judge, two years afterwards, without objection. It would
524 Noyes et al. v. Kern. [Jan. T.
Opinion of the Court.
be vicious practice to permit a party, under such circumstances,
to proceed to trial, try the experiment whether he could suc-
ceed, and if he failed, then to fall back on the refusal to grant
a change of venue, and claim a reversal. To permit such
practice would be to produce delay, unnecessary expense and
vexation. If he were not required to abide by the decision
on the motion until he could test its correctness, he should
have objected to proceeding to a trial ; but failing to do so,
he has waived any error that may have been committed in
overruling the motion, especially after such a length of time.
There is no force in this objection.
Appellant claims that he should not be required to specific-
ally perform the contract, because the agreement required the
payment of §2400, with ten per cent interest; that only the
principal, without interest, has been paid. It seems to be
fully conceded that the $2400 was paid. It also appears that
appellant prepared and tendered a deed, demanded the in-
terest, but it not being paid, he brought an action of assump-
sit for its recovery, but failed in the action. We regard the
evidence as ample, proving that in that suit the question of
whether appellee owed this interest, and the finding and judg-
ment on that issue, was against appellant, and that judgment
is in full force and unreversed.
All persons in the profession, we presume, know that a
judgment rendered in a case where the court has jurisdiction
of the subject matter and of the parties, is a bar to a recovery
on the same cause of action, in all courts, whether of law or
of chancery. This is so elementary as to require no discus-
sion or citation of authority.
The question of interest was litigated and determined in
the suit in assumpsit, and that question is res judicata, and
we have no power to consider the question of whether the
interest was paid, as that question is conclusively settled by
that judgment.
If, then, appellee has paid, as it is conceded, the principal,
and the judgment in the suit at law was that he owed appel-
1880.] Goucher v. Patterson. 525
Brief for Plaintiff in Error.
lant no interest, it follows that he has no claim for any unpaid
balance of the purchase money; and inasmuch as appellee has
fully performed his part of the agreement, he was entitled to
a specific performance of the agreement.
Perceiving no error in the record, the decree of the Appel-
late Court must be affirmed.
Decree affirmed.
John P. Goucher
v.
Almira E. Patterson.
1. Amendment — of record at succeeding term. After the expiration of the term
at which a judgment is rendered, as a general rule, the court has no power
over the judgment, except to amend it in matters of form or to correct cleri-
cal errors.
2. During the term at which a judgment is rendered, the court has control
over the record, and for a sufficient cause appearing, may amend its judgments
and decrees or vacate and set them aside, but when the term is ended, the
judgment entered, and the case goes off the docket, that power ceases and an
amendment of a substantial character can not be made.
3. Same — after term closes affidavits can not be received to impeach or alter the
record. After the close of a term at which a judgment is rendered, its abso-
lute verity can not be overcome or even attacked by affidavit.
4. Error — tohen no ground of reversal. It is a familiar rule that an error
which does no harm is not a sufficient ground to reverse a judgment. Thus,
where an order was made referring a cause to an attorney for trial, and after-
wards at the same term the parties waived a jury and submitted the cause to
the court for trial, who heard the evidence and rendered a judgment for the
plaintiff, it was held, that if the order of reference was erroneous, it worked
no injury and afforded no ground of reversal.
Writ of Error to the Appellate Court for the Third Dis-
trict.
Messrs. Somers & Wright, for the plaintiff in error:
The court erred in making the order referring the cause to
J. S. Jones for trial. Judicial power can not be delegated.
526 Goucher v. Patterson. [Jan. T.
Opinion of the Court.
Hoagland v. Creed, 81 111. 506; Bishop v. Nelson et al. 83 id.
601 ; Cobb v. The People, etc., 34 id. 511.
The court has at all times the power to vacate a void judg-
ment. Burwell v. Orr et al. 84 111. 465. The record should
have been amended so as to show the court did not try the
case.
Mr. Alexander M. Ayers, and Mr. Homer W. Ayers,
for the defendant in error:
While a cause is still pending and undetermined the court
has control over the records and proceedings in the cause and
over any final orders of a pending term, and, for good cause
shown, may amend or set them aside. But after the term has
passed, unless the cause is still pending and the parties are in
court, its power over the record is confined to errors and mis-
takes of its officers. McKindley v. Buck, 43 111. 488 ; Cook
v. Wood, 24 id. 295; Coughran v. Gutcheus, 18 id. 390; State
Savings Institution v. Nelson, 49 id. 171 ; Becker v. Sauter, 89
id. 596; Smithy. Wilson, 26 id. 188; Humphrey ville v. Culver,
Page, Hoyne & Co. 73 id. 485.
The transcript of the record shows that the parties waived
a jury and submitted the cause to the court for trial, and even
if Jones did as a referee hear the evidence and determine the
amount due and report the same to the court, in doing so he did
not do nor attempt to do any judicial act, but did what he was
authorized to do by the act of the legislature. Session Laws
1871 and 1872, p. 662; Haynes et al. v. Hays, 68 111. 203.
Mr. Justice Craig delivered the opinion of the Court:
The application to amend the record of the judgment in
this case at the September term, 1876, came too late. The
judgment was rendered at the September term, 1875, of the
circuit court, and after that term expired, as a general rule,
the court had no power over the judgment except to amend
it in matters of form or to correct clerical errors. State
1880.] Goucher v. Patterson. 527
Opinion of the Court.
Savings Institution v. Nelson, 49 111. 171; Becker v. Sauter, 89
id. 596.
An affidavit was filed in support of the motion for the pur-
pose of impeaching the record of the judgment. That can
not be done. After the adjournment of a term at which a
judgment is rendered, its absolute verity can not be overcome
or even attacked by affidavit. Humphrey mile v. Culver et al.
73 111. 485. During the term at which a judgment or decree
is rendered, the court has control over the record, and for
sufficient cause appearing, may amend its judgments and de-
crees, or vacate and set them aside, but when the term is
ended, the judgment entered and the case passes off the
docket, that power ceases and an amendment of a substantial
character can not be made. Cook v. Wood, 24 111. 295; Cairo
and St. Louis Railroad Co. v. Holbrooh, 72 id. 419; Church
v. English, 81 id. 442.
It appears from the record that at the September term,
1875, and on the 9th day of October, an order was entered
by the court in these words : " And now come the parties, by
their respective attorneys, and by their agreement it is ordered
by the court that this cause be and it is hereby referred to J.
S. Jones, an attorney of this court, for trial." It is con-
tended on behalf of plaintiff in error that this order is erro-
neous; but it will not, however, be necessary to inquire into
the validity of this order, because no one has been injured by it ;
and it is a familiar rule that an error that does no harm is not
sufficient ground to reverse a judgment. The record fails to
show that any steps were taken or proceedings had under this
order, but on the other hand, after the order was made and
on the 20th day of October the record does show that the
parties, by agreement, waived a jury and a trial was had be-
fore the court; that the court heard all the evidence and
argument of counsel and rendered a judgment in favor of the
plaintiff. Now, although the order referring the cause to
Jones for trial may have been made without authority, yet
when the record affirmatively shows that after the order was
528 Hewitt v. Normal School District. [Jan. T.
Syllabus.
made a trial in all respects formal was had before the court,
and a proper judgment rendered by the court, we perceive
no ground upon which the plaintiff in error can take any ad-
vantage of the order.
It is also contended that the judgment is void. This posi-
tion is, however, predicated upon the hypothesis that the case
wTas not tried or the judgment rendered by a court, a
position not sustained by the record. So far as is shown by
the record, a regular trial was had before the circuit court
and a judgment in all respects formal rendered by the court.
A judgment rendered in this manner can not be impeached
by ex parte affidavits presented in support of a motion to
vacate, entered long after the term has closed at which the
judgment was rendered.
As we perceive no error in the record, the judgment of the
Appellate Court will be affirmed.
Judgment affirmed.
Edwin C. Hewitt
v.
The Board of Education of Normal School District.
1. Practice — affirmance by Appellate Court is a finding of facts as in court below.
Where there is evidence on the trial of a cause tending to prove the issues of
fact in favor of the successful party, and the Appellate Court affirms the judg-
ment below, this court must take the affirmance as a finding of the facts as
they were found by the circuit court.
2. Municipal bonds — of their validity — innocent purchasers. Municipal
corporations, unless authorized by their charters, have no power to make and
place in the market commercial paper, and all persons dealing in municipal
bonds issued by the officers of a school district must see that the power to
issue them exists. There is no presumption that such paper has been issued
within the scope of their power, as is the case with corporations created for
business purposes.
3. Municipal bonds issued without power are void in whosesoever hands
they may be found. So, a bond issued by the board of education of a school
1880.] Hewitt v. Normal School District.
529
Brief for the Appellant.
district, not for the purpose of raising money to purchase a school site, or for
erecting a school building, they having no power under the statute to issue
such paper for any other purpose, is void even in the hands of a person tak-
ing without notice, as no one can be an innocent purchaser of such void paper.
4. Same — trustees of fund can not purchase bonds issued by themselves. Mem-
bers of a board of education for a school district are virtually trustees of the
school funds, and as such they are incapable of dealing with the fund as pur-
chasers or donees, and bonds issued by them to raise money for the district
and negotiated to members of the board are void, even though sold without
any discount.
Appeal from the Appellate Court for the Third District.
Messrs. Williams, Burr & Capen, and Mr. John E.
Pollock, for the appellant :
1. If the board had the power to issue bonds for any pur-
pose, it is presumed that bonds issued by it were issued for a
lawful purpose until the contrary is made to appear.
2. This bond was valid as against the defendant in the
hands of the original payee.
The indebtedness for which it was issued was created long
before Gregory, the payee, was a member of the- board, and
was given to him in settlement of transactions completed
before he became a member. Gregory's share in the transac-
tion was simply to pay off the old indebtedness and take a
new bond in place of bond No. 37. School Directors v. Parks,
85 111. 338. A director of a private corporation may deal
with the corporation the same as a stranger, provided he acts
fairly. Harts v. Brown et al. 77 111. 226.
3. Appellant was an innocent purchaser of the bond and
coupons for value before maturity. He bought it from the
bank, and it is immaterial whether the bank indorsed it or not.
The plaintiff took whatever title the bank had. Fairclough
v. Pavia, 9 Exch. 689.
A purchaser of negotiable paper, who has notice of a de-
fence from a party who is an innocent holder, takes the title
of the latter, even when the purchaser has full knowledge,
and is entitled to the same protection as his vendor. Haskatt
34—94 III.
530 Hewitt v. Noemal School Disteict. [Jan. T.
Brief for the Appellee. Opinion of the Court.
& Gerry v. Whitmore, 19 Me. 102; Prentiss, etc. v. Zane, 2
Gratt. 262; Boyd v. McCann, 10 Md. 118; Howell v. Crane,
12 La. An. 126; Watson v. Flannagan, 14 Tex. 354; Chal-
mers et al. v. Lanion, 1 Camp. Eng. 383 ; Story on Prom.
Notes, 226, sec. 191 ; 2 Kent's Com. 92, side page. 1 Pars,
on Bills, 261.
Messrs. Weldon & McNtjlta, Mr. C. G. Beadshaw and
Mr. ¥m. Duff Haynie, for the appellee:
1. The bond was issued for purposes not contemplated by
law, and, therefore, without authority of law, and is void.
2. It was void in the hands of the plaintiff, because it was
issued by the board to a member of the board, and purchased
by the plaintiff with full knowledge of such fact.
3. The bond issued by the board (of which Gregory was a
member) to Gregory as an individual, is void, and being
void there can be no innocent purchasers. A trustee can not
deal with himself. Sherlock et al. v. Village of Winnetka, 6&
111. 531; same case, 59 id. 389; School Directors v. Fogleman,
76 id. 189.
Mr. Chief Justice Walkee delivered the opinion of the
Court :
This was an action of assumpsit, brought by Hewitt, in the
circuit court of McLean county, against the "Board of Edu-
cation of Normal School District/' on a bond for $500, and
two coupons of $25 each. The bond was dated the 1st of
September, 1873, payable five years after its date, with ten
per cent interest, and it was payable to John Gregory or
order. It was indorsed by him in blank, and he negotiated
it to the Home Bank, of which appellant purchased, taking
no further indorsement.
On the trial in the circuit court the blank indorsement
was filled up to appellant. The general issue, with a stipula-
tion that defendant might introduce any proof establishing a
defence, and plaintiff any evidence showing a liability, was
1880.] Hewitt v. Normal School District. 531
Opinion of the Court.
filed. A trial was had by the court, by consent, without a
jury, and the issues were found for defendant, and a judg-
ment was rendered in bar of the action.
Plaintiff thereupon prayed and perfected an appeal to the
Appellate Court for the third district, where, on a hearing, the
judgment of the circuit court was affirmed, and the plaintiff
thereupon prayed, and the court granted an appeal to this
court. A majority of the judges, on granting the appeal,
have certified the case to this court. This, then, brings the
case properly before us for consideration. *
We see, by turning to the record, that the evidence relied
on in defence was that the board of education had no power
to issue this bond, and even if it had, the bond was issued to
Gregory, who was at the time a member of the board, and
that being issued to him it was utterly void in the hands of
any and all persons.
On the other hand, these legal propositions are controverted,
and it is insisted that, conceding them to be correct, the bond
is in the hands of an assignee, and as the board had power to
issue bonds to purchase sites and to erect school houses
thereon, that he was not bound to inquire or to know the
bond was issued without authority, and should be protected.
The evidence tended to show that the bond was not issued
to pay for a school house site, or to erect a building thereon,
it also tended to prove that Gregory was, at the time the
bond was issued to him, a member of the board, and that
appellant was aware of the fact when he purchased the bond.
As these were controverted facts, and were found by the cir-
cuit court against appellant, and as the Appellate Court has
affirmed the judgment of the circuit court, we must take the
affirmance as a finding of the facts as they were found by the
circuit court, and we are precluded from reviewing these con-
troverted facts, but are bound by the finding of the Appellate
Court.
The fact, then, that the bond was not issued for an author-
ized purpose, undeniably rendered it void. Municipal cor-
532 Hewitt v. Normal School District. [Jan. T.
Opinion of the Court.
porations are not usually endowed with power to enter into
traffic or general business, and are only created as auxiliaries
to the government in carrying into effect some special gov-
ernmental policy, or to aid in preserving the order and in
promoting the well-being of the locality over which their
authority extends. Where a corporation is created for busi-
ness purposes, all persons may presume such bodies, when
issuing their paper, are acting within the scope of their
power. Not so with municipalities. Being created for gov-
ernmental purpdfes, the borrowing of money, the purchase
of property on time, and the giving of commercial paper, are
not inherent, or even powers usually conferred; and unless
endowed with such power in their charters, they have no
authority to make and place on the market such paper, and
persons dealing in it must see that the power exists. This
has long been the rule of this court. Board of Supervisors
v. Farwell, 25 111. 181 ; Clarh v. Hancock County, 27 id. 305;
Marshall County v. Cook, 38 id. 44; Wiley v. Silliman, 62 id.
170; Harding v. Rockford, Rock Island and St. Louis Rail-
road Co. 65 id. 90; McWhorter v. The People, id. 290; Town
of Big Grove v. Wells, id. 263. We might refer to other cases
where it has been held that bonds issued without authority
are void, even in the hands of purchasers before maturity and
without actual notice.
A person taking bonds of a municipal corporation has
access to the records of the body, and it is his duty to see that
such instruments are issued in pursuance of authority, and
when without power, they must be held void in whosesoever
hands they are found. If, therefore, this bond was not issued
to purchase a school house site, or for erecting a school build-
ing, as the Appellate Court seem to have found, the bond is
void, as it Avas issued without power, and this, too, in the
hands of a person taking without actual notice.
Again, this bond was issued without authority, and was
void, and no person can be an innocent purchaser, as was
held in the case of School Directors v. Fogleman, 76 111. 189.
1880.] Hewitt v. Normal School District. 533
Opinion of the Court.
1 j
That case and this are very similar in their facts and material
circumstances, and that case governs this.
Again, the instrument was made payable to one of the
members of the board having charge and management of the
funds of this school district. They were virtually trustees of
the fund, and as such, were incapable of dealing with the
fund as purchasers or donees.
In the case of Sherlock v. WinnetJca, 59 111. 390, it was held
that where bonds were issued by a board of education, and a por-
tion of them sold to members of the board, such portion were
void, and that a tax could not be legally levied to pay interest
thereon; that no interest could be due on such bonds in the
hands of such holders. When the case was again before the
court, (68 111. 530,) it was held that the member of the board
had no power to purchase them from himself or the board of
which he was a member, and the tax levied to meet the in-
terest on them was enjoined. It is true that it was there said
that he purchased at a discount, and if permitted to purchase,
he could have done so at a greater discount. That was said
to illustrate the abuse that could be perpetrated if such sales
were permitted, and not as limiting the illegality to sales that
were shown to be injurious to the corporate body. When the
case was first before us, we adopted the language of Perry on
Trusts as announcing the true rule, where he says: "If,
therefore, a board of directors should convey all the property
of a corporation to themselves, the conveyance would be void,
without any inquiry into its fairness, or whether it was bene-
ficial to the corporation or not; and the same rule applies if
a board of directors convey the property of a corporation, or
any part of it, to one of their, members, he being one of the
members negotiating the contract with himself." Perry on
Trusts, sec. 207. This is no doubt the true doctrine as applied
to persons holding a fiduciary relation to property; and the
rule is illustrated in cases where trustees, administrators,
executors, sheriffs, masters in chancery and other persons
534 McCollom et al. v. I. & St. L. E. R. Co. [Jan. T.
Syllabus.
become, either directly or indirectly, purchasers from them-
selves at their own sales.
But it is urged that appellant is an innocent purchaser, and
should be protected, although the bond might have been void
in the hands of Gregory. One of the issues tried in the cir-
cuit court was, whether appellant knew that Gregory was a
member of the board at the time he received the bond, and
the issue was found against him. The evidence tended to
show that he had notice, and that was one of the controverted
facts, and by affirming the judgment of the circuit court, the
Appellate Court found this fact against appellant, and that
finding is conclusive on us. If, then, he took the bond know-
ing that the payee was a member of the board, he is charged
with a knowledge that it was void, and he can not recover.
Knowing that the payee was a member of the board, he is
charged with taking it with a knowledge that it was void, and
subject to all defences on that ground. This disposes of the
case, and renders the discussiou of other questions unneces-
sary.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
Nelson McCollom et al.
v.
The Indianapolis and St. Louis Railroad Company.
1. Instruction — whether it shuts out defence. An instruction that the
responsibility of a railroad company as a common carrier coniinued from the
time stock were entrusted to it for transportation until the same reached their
destination, in a suit to recover of the company for a loss and injury to the
animals, is not open to the objection that it asserts an absolute liability, with-
out regard to any defence set up by the defendant.
2. New trial — newly discovered evidence. Where newly discovered evidence
is somewhat cumulative, and is quite inconclusive in its character, there will
be no error in refusing a new trial on the ground of such newly discovered
evidence.
1880.] McCollom et ah v. I. & St. L. E. R. Co. 535
Opinion of the Court.
3. Amendment — after overruling motion for a new trial. Where a declara-
tion against a carrier alleged that the defendant received sheep of the
plaintiff, and contracted to transport them to "Elwood, Kan.," and the proof
showed an agreement to transport to "Ellinwood, Kansas," it was held no
error to allow an amendment of the declaration, by striking out the word
"Elwood" and inserting the word "Ellinwood," even after overruling a
motion for a new trial, when the motion to around was made before deciding
the motion for a new trial, the words being so nearly alike in sound that the
proof could create no surprise.
Appeal from the Appellate Court for the Third District;
from judgment affirming judgment below, on appeal from the
Circuit Court of Edgar county.
Mr. R. JST. Bishop, and Mr. C. Y. Jaquith, for the appel-
lants.
Messrs. Sellar & Dole, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
It is insisted that the circuit court erred in giving the two
following instructions for the plaintiff, viz :
" The court instructs the jury for the plaintiffs, that the
Indianapolis and St. Louis Railroad Company, the defendant
in this cause, is a common carrier and was acting in that
capacity in October, 1875, and if the jury believe, from the
evidence, that it then transported sheep for plaintiffs, such
transportation was done as common carriers."
" The court also instructs the jury that the responsibility
of the defendant continued from the time said stock was
entrusted to and received by it, if you find from the evidence
such receipt of said stock, until said stock was delivered to
plaintiffs by it at Ellinwood, Kansas, if the jury find from
the evidence that the defendant contracted and agreed with
plaintiffs to transport said stock from where it so received
said stock to said Ellinwood, Kansas."
We do not perceive any substantial error in the instructions.
536 McCollom et al. v. I. & St. L. R. R. Co. [Jan. T.
Opinion of the Court.
We do not view the second instruction in the same light
that the argument of appellants' counsel does, to-wit : as
asserting an absolute liability for the loss and injury in respect
of the sheep if defendant received and contracted to transport
them, irrespective of any defence which was set up by de-
fendant. We think the instruction, fairly construed, means no
more than that the responsibility of the defendant as a common
carrier continued from the time the sheep were received for
transportation until they reached their destination, and does
not declare an absolute responsibility in the case for the loss
and injury to the sheep.
It is further urged that the court erred in overruling
defendant's motion for a new trial, made upon the ground of
newly discovered evidence since the trial.
We regard the newly discovered evidence, as set forth in
the affidavits of the persons expected to give it, as somewhat
cumulative, and at any rate quite indecisive in its character.
We find no error in this respect.
At the same time of overruling the motion for a new trial,
but afterward in order, the circuit court granted a motion
which had theretofore been made, by the plaintiff, to amend
the declaration by striking out the word "Elwood" therein,
and inserting in its place "Ellinwood." This is complained
of, and that as the declaration, before the amendment, alleged
a contract to carry to "Elwood," in the State of Kansas, and
the contract proved, if any, was to carry to "Ellinwood," in
that State, a new trial should have been granted because of
such variance. Idem sonans will almost apply to these words,
and there could have been no surprise in the proof. Under
our very liberal statute for the allowance of amendments,
either in form or substance, at any time before judgment
rendered, we see no error in granting the motion to amend,
or immediately previous overruling the motion for a new trial
because of such variance.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
1880.] City of Quincy v. C., B. & Q. E. E. Co. 537
Opinion of the Court.
The City of Quincy
v.
The Chicago, Burlington and Quincy Eailroad Co
1. Grant — when not confined to grantee. Where a city, under special
authority of law, grants to a railroad company the right to use certain parts
of its streets for railroad tracks, the grant containing no clause restricting
the use of the streets to the grantee, the right to such use of the streets may
be transferred to another railroad company which is authorized by law to
acquire and succeed to all the property, etc., of the grantee company.
2. Same — construed as to condition or limitation. Where a city by deed
grants to a railroad company rights of user of parts of four streets for rail-
road tracks, not in one single clause, but by four separate and distinct
paragraphs, each granting rights and privileges, and immediately after the
last grant it is provided, " said right and privilege to be enjoyed and exer-
cised until," etc., limiting the same in respect of time, the condition or limi-
tation will be construed to apply only to the last of the four grants.
3. Mortgage — of after acquired property. Where a railroad company is,
by its charter, authorized to borrow money and mortgage the whole or any
part of its road, property or income then existing, or thereafter to be ac-
quired, the company may not only mortgage its present property and rights,
but such as it may thereafter acquire, and such after acquired property will be
subject to be sold on foreclosure; and this seems to be the rule, independent
of the authority given in the charter.
4. Costs — in ejectment on disclaimer as to part. Where a defendant in eject-
ment disclaims as to part of the property sued for, and pleads not guilty as
to the residue, and judgment is rendered in favor of the plaintiff for the part
to which the disclaimer applies, and judgment for the defendant on the trial
as to the balance, it is proper to give judgment against the plaintiff for the
costs of the suit.
Appeal from the Circuit Court of Adams county j the Hon.
John H. Williams, Judge, presiding.
Mr. William W. Berry, for the appellant.
Mr. O. H. Browning, for the appellee.
Mr. Justice Craig delivered the opinion of the Court:
This was an action of ejectment, brought by the City of
Quincy against the Chicago, Burlington and Quincy Eailroad
538 City of Quincy v. C, B. & Q. K. E. Co. [Jan. T.
Opinion of the Court.
Company, to recover certain streets in the city of Quincy
upon which the railroad company had constructed its track,
and which had been used by the company for many years.
The defendant filed a plea disclaiming any right, title or in-
terest to a portion of the property described in the declaration,
and that it had always been ready and willing to deliver
plaintiff the possession thereof, and before the commencement
of the suit tendered the possession thereof to plaintiff. As
to the balance of the property a plea of not guilty was inter-
posed.
On the trial before the court, without a jury, the court
found for the plaintiff, as to the property embraced in the plea
of disclaimer, and as to the balance of the property the court
found in favor of the defendant, and rendered a judgment
against the plaintiff for costs. To reverse this judgment the
City of Quincy appealed to this court.
The defendant on the trial, to maintain the issue on its
part, read in evidence an instrument of writing executed July
25, 1855, by and between the Northern Cross Railroad Com-
pany, of the first part, and the City of Quincy, of the second
part, by which portions of certain streets were conveyed ab-
solutely to the city, and the right to use parts of other streets,
the streets now in question, was granted to the railroad com-
pany. The defendant also read in evidence a deed from the
master in chancery of Knox county to the defendant. This
deed was made under and by virtue of a sale made under a
decree of the circuit court of Knox county foreclosing a
mortgage given by the Northern Cross Railroad Company to
Louis Van Hoffman and others, upon all the property it then
owned and all that might be thereafter acquired. This mort-
gage bore date July 1, 1853.
It is first contended, by appellant, that whatever rights
and privileges in the streets were granted to the Northern
Cross Railroad Company were " particular and confined to
the grantee alone." There is nothing in the language of the
deed made between the railroad company and the city of
1880.] City of Quincy v. C., B. & Q. E. R. Co 539
Opinion of the Court.
Quincy, under which the company now claims, which would
justify the position taken. The deed is an ordinary instru-
ment, under which the rights conferred are conveyed in plain
language, such as is used in an ordinary conveyance. The
authorities cited and relied upon have reference to personal
easements in private property, and hence can have no appli-
cation here. No private rights were involved. The law
authorized the city to grant to the railroad company the right
to use its streets for railroad tracks, and at the same time the
law authorized one railroad company to acquire from another
its road, right of way, property and franchises, and succeed
to all its rights. The deed having been made under such
circumstances, and containing no clause restricting the use of
the streets to the Northern Cross Railroad Company, we per-
ceive no reason why the defendant could not succeed to all
the rights of the Northern Cross Railroad Company.
It is next urged that whatever rights and privileges in
these particular streets the Northern Cross Railroad Company
took by the grant, were terminated by the express provisions
of the instrument itself.
That portion of the deed which relates to the property in
question, including punctuations and beginnings of para-
graphs, as is stated by appellee's counsel and not disputed, is
as follows:
" In consideration whereof the said party of the second part
hereby conveys to the said parties of the first part all that
part of Front street which lies north of a line across the
same fifty feet south of Oak street, * * * * to have
and to hold the same together with all and singular the privi-
leges and appurtenances thereunto belonging, to the said
parties of the first part, their successors and assigns forever.
" And the said party of the second part also grants to the
said parties of the first part the right and privilege of grading,
improving and using that portion of Broadway street which
lies west of the west line of Front street; and also that por-
tion of Spring street which lies west of Front street to the
540 City of Quincy v. C, B. & Q. R. R. Co. [Jan. T.
Opinion of the Court.
Mississippi river, to suit the convenience of said company,
and to construct thereon such railroad tracks, side tracks,
switches and frogs as the said parties of the first part may
desire, and to use the same in passage of machinery and cars
to and fro, or in permitting them to remain thereon as the
convenience of the company may require in the transaction
of their business; * * * * and those portions of
Broadway and Spring streets, and all other streets in said city
not herein conveyed, in which any rights and privileges are
herein granted to said parties of the first part shall be by
them so graded, and the railroad tracks so laid that carriages,
wagons, drays, and vehicles of all kinds may conveniently
cross the same.
"And for the same consideration the said party of the
second part also grants to the said party of the first part the
right and privilege of using that portion of said Front street
which extends from that part of it hereinbefore conveyed,
south to said Broadway street, for the use and construction
thereon of as many railroad tracks, side tracks, switches and
frogs as may be necessary for the convenience of said com-
pany in the transaction of their business, with the exception
that the sidewalks on each side of Front street between
Broadway and Spring are not to be used for tracks or other-
wise by said company;
" And also the right and privilege of making and using
two railroad tracks in and along that portion of Front street
which extends from the north line of Broadway south to a
line drawn due west across said Front street from the south-
west corner of lot four in block six in the original town now
city of Quincy, * * * * said right and privilege to be
enjoyed and exercised until the sixteenth day of October, one
thousand, eight hundred and seventy-seven, unless the said
parties of the first part shall sooner become the owners of
block one in Pease's addition to the town now city of
Quincy, as soon after the happening of which event as is
reasonably practicable, * * * * the said parties of the
1880.] City of Quincy v. C., B. & Q. E. E. Co. 541
Opinion of the Court.
first part shall cease to have the right to use for any railroad
track or tracks any part of said Front street south of the
north line of said Broadway street."
The question to be determined is, whether the limitation
contained in the concluding part of the deed applies to each
and all of the four rights and privileges granted by the city
to the company, or does it only apply to the last one? It
will be observed that, aside from the land absolutely con-
veyed, four separate and distinct parts of streets are granted,
not by one clause, but by four distinct paragraphs in the deed.
Under the terms of the deed four rights and privileges are
granted to the company. It is but reasonable to suppose, if it
had been intended to make the limitation apply to each right
and privilege, they would all have been granted in one clause,
and then the limitation would have been invested with apt
words to make it apply to each grant, but such was not the
case. Again, as four rights and privileges were granted by
the deed in distinct portions of streets, if the limitation
was intended to be applied to all the rights and privileges
conferred, why was the singular number, "said right and
privilege," used? ' It seems evident that the deed, if the in-
tention was to apply the limitation to all the rights and
privileges, would have contained this language: said rights
and privileges ; and the fact that such words were omitted
would seem to leave no room for doubt in regard to the con-
struction to be placed upon the deed. The words of the
limitation immediately following the last or fourth grant,
" said right and privilege to be enjoyed and exercised until
the sixteenth day of October, 1877," can not be held to apply
to the other three grants without adopting a forced and un-
reasonable construction of the words used to express the
intention of the parties. From the record of the foreclosure
proceedings read in evidence by defendant, the mortgage
which was given by the Northern Cross Eailroad Company,
under which defendant acquired title, bore date July 1, 1853,
which was prior in time to the date of the deed from the city of
542 City of Quincy v. C., B. & Q. E. R. Co. [Jan. T.
Opinion of the Court.
Quincy to the company. The mortgage, however, contained
a provision including therein after acquired property, and
under this clause of the mortgage the property rights and
privileges acquired under the deed made by the city in 1855
became subject to the terms and conditions of the mortgage.
Under the act of June 11, 1852, Laws of 1852, page 3, the
railroad company had the power to borrow money and
mortgage the whole or any part of the road, property and
income of the company then existing or thereafter to be
acquired. The mortgage was made after this statute went
into force, and after describing certain property conveyed by
the mortgage, it contained this clause, "and all other prop-
erty, real and personal, pertaining to the road or the using
thereof now owned or hereafter to be acquired." But, aside
from the statute, we perceive no reason why the railroad com-'
pany could not execute a mortgage which would include after
acquired property, as held in Shaw v. Bill, 5 Otto, 10.
It is also contended by appellant that judgment should have
been rendered against appellee for costs. The defendant dis-
claimed any interest, right or title in and to the property
plaintiff recovered, and no litigation was had in reference to
such property, and we see no reason why it should be com-
pelled to pay costs. The property over which the litigation
was had the defendant recovered, and it is but right, as the
plaintiff was defeated in regard to the property over which
there was a Controversy, that it should pay the costs.
The judgment of the circuit court will be affirmed.
Judgment affirmed.
1880.] Emory v. Keighan. 543
Brief for the Appellant.
Boyd Emory
v.
David Keighan et al.
1. Mortgage — depends upon the debt it secures. The existence of the debt is
essential to the life of the mortgage given to secure it, and when the debt
has been paid, discharged, released, barred by the Statute of Limitations, or a
judgment or decree is rendered in favor of the mortgagor in a proceeding to
recover the debt, the mortgage is gone and has no longer any legal effect.
2. Same — sale under, good if debt is not barred. Where a sale of land was
made under a power in a mortgage more than sixteen years after the debt
became due, so that the debt "was barred as to all the other makers of the note,
but not as to the mortgagor, owing to his absence from the State, it was held,
that as tne note was at the time of the sale legally enforcible against the
mortgagor, the sale was valid and passed title to the purchaser.
3. Limitation — a personal defence. A plea of the bar of the Statute of
Limitations is personal to the debtor, and can not be interposed by a stranger.
But such a defence may be set up by an executor, administrator or heir when
sued on the contract of the intestate or ancestor, or by a co-maker as surety
on a contract.
Appeal from the Circuit Court of Ford county; the Hon.
Owen T. Reeves, Judge, presiding.
Mr. Charles H. Wood, and Mr. Calvin H. Frew, for
the appellant:
There was no statute, or exception in any statute, within
which the appellees have brought themselves, which can take
their mortgage out of the Statute of Limitations.
The limitation law in force at the time a cause of action
accrues governs the time within which an action will lie.
Beesley v. Spencer, 25 111. 216.
Such a statute will not be applied to cases not clearly
within its provisions. Hazell v. Shelby, 11 111. 9.
When the statute begins to run it will continue to run
until it operates as a complete bar unless there is some saving
or qualification in the statute itself. The People v. Wliite, 11
111. 350.
544 Emory v. Keighan. [Jan. T.
Brief for the Appellees.
A subsequent conveyance of the land will not arrest its
operation. Shortall v. Hinckley, 31 111. 219.
A saving or exception restrictive of its operation, not found
in the statute, will not be implied. Howell v. Hair, 15 Ala.
194.
A person claiming the benefit of an exception in the statute
must show that he comes within it. Desannier v. Murphy,
33 Mo. 184; Vail v. Holten, 14 Ind. 344.
Though the court may think the legislature would have
excepted a case out of the statute, if it had been foreseen, the
court can not except it. 2 Curtis' C. C. R. 480; Lawrence
v. Bridleman, 3 Yerg. 496.
The note which the mortgage of appellees was given to
secure was executed in this State by Harrison Tyner, George
W. Tyner and David L. Tyner, and the absence of one of the
makers from the State did not stop the running of the statute
upon the note, and when the note was barred the mortgage
was also. Perry v. Jackson, 4 Durnf. & East, 275, (516);
Bruce v. Flagg, 1 Dutch. 219; Shropshire v. Shropshire, 7
Yerg. 165; Brown v. Delafield, 1 Denio, 445; Denny v. Smith,
18 N. Y. 567.
Mr. J. W. Cochran, and Mr. A. Sample, for the appellees:
Cases within the reason, but not within the words of a stat-
ute of limitations, are not barred, but may be considered
omitted cases. Bedell v. Janney, 4 Gilm. 193; Dunlap v.
Buckingham, 16 111. 109.
As long as an action could be maintained upon the note at
law the mortgage may be enforced. Emory v. Keighan et al.
88 111. 485 ; Pollock et al. v. Maison et al 41 id. 517.
The proof shows that the principal in the note was out of
this State, while the statute was running, for over two years.
This absence shall not be taken as part of the time limited.
The case of Brown v. Delafield, 1 Denio, 445, has been
overruled in Denny v. Smith, 18 N. Y. 567, and see Caswell
v. Engelman, 31 Wis. 93.
1880.] Emory v. Keighan. 545
Opinion of the Court.
The principal maker of the note being out of the State, even
though his residence may have been in this State, stops the
running of the statute against the note. Chenot v. LeFevre,
3 Gilm. 637; Vattandingham v. Houston, 4 id. 125.
Mr. Chief Justice Walker delivered the opinion of the
Court :
This case was previously before use, and is reported in 88
111. 482. It was there held that the existence of the debt was
essential to the life of the mortgage given to secure it; that
when the debt was paid, discharged, released, barred by the
Statute of Limitations, or a judgment or decree in favor of
the mortgagor in a proceeding to recover the debt, the mort-
gage is gone and no longer has any effect.
It was also said that the plaintiff's proof made a good prima
facie case for him. The Statute of Limitations was relied on,
and there was an apparent bar of the debt before the sale was
made under the mortgage which was made to secure the debt,
and on the prima facie bar of the statute the title derived
from the sale under the mortgage was held to present no
defence.
Plaintiff below presented and read in evidence, on the trial
in the court below, the same title he did on the former trial,
and the defendant the same title papers that he relied on in
the former trial. All of this evidence will be found in the
case as it is reported in vol. 88 of Illinois Reports, and it is
unnecessary to set it out here. In addition to the evidence
there given, defendant below introduced testimony to prove
Harrison Tyner was absent from the State a time sufficient
to prevent the statute from barring the note, at the time the
sale was made under the mortgage, when appellee became the
purchaser. The jury so found.
It is now urged, first, that the evidence fails to show that
Harrison Tyner was absent a sufficient length of time after
the maturity of the note to prevent a bar; and the note being
barred when the sale was made, that the sale was unauthorized
35—94 III.
546 Emory v. Keighan. [Jan. T.
Opinion of the Court.
and void, and hence the title thus acquired constitutes no
defence to the action. On a careful examination of the evi-
dence, we are of opinion that it warranted the jury in finding
that, deducting the time Harrison Tyner was out of the State,
sixteen years had not run against the note as to him, when
the sale and conveyance were made under the power contained
in the mortgage.
The note was joint and several, and the payee could without
doubt have sued either or all of the makers, at any time after
its maturity, until it should be barred by the statute. He
was not bound to sue, but could have done so had he desired.
Nor did the fact that the statute became a bar to a suit
against the other makers release or discharge Harrison Tyner
from liability. Had they become bankrupt and been dis-
charged, or had any other defence occurred personal to them
alone, Tyner could not have pleaded it as a bar to a recovery
against him. Nor is any reason perceived why he can avail
of the defence of the Statute of Limitations as to them, as it
is purely personal to them. He can only rely on defences
personal to himself, unless it be defences common to all the
makers, such as payment, release or discharge of the debt.
It is urged that the statute only permits the deduction of
the time a debtor is absent from the State, in actions brought
for a recovery of the note, and as no action was brought, the
deduction of the time could not be made to uphold the sale
under the mortgage. We are unable to perceive the force of
the argument. The power of sale inserted in the mortgage
was for the purpose of subjecting the mortgaged property to
the payment of the debt so long as it remained in force. Its
legal effect was to authorize a sale after the debt matured, so
long as it remained in existence and binding on the mort-
gagor. The mortgage was a mere incident of the debt, and
inhered to it as long as the debt remained in force against the
mortgagor, as nothing was done to release or separate it from
the debt. The statute not having barred the debt as to Tyner,
the mortgagee, as the holder of the note, could have sued on
1880.] Emory v. Keighan. 547
Opinion of the Court.
it; he could have foreclosed by bill in equity, by scire facias,
or brought ejectment, up to the time of the sale, and, as the
parties had agreed that the mortgagor's equity of redemption
might be foreclosed by a sale such as was made, we are unable
to perceive why such a foreclosure might not be had as
effectually as by either of the other modes.
If the statute has any effect to bar a foreclosure of a mort-
gage or a sale under a power therein, it must be applied in all
of its parts and provisions precisely as in suits or actions to
foreclose. Had a bill been filed to foreclose instead of the
proceeding to sell, and the Statute of Limitations had been
relied on, does any one suppose, in answer to the defence, the
complainant would have been precluded from proving the
absence of the mortgagor to prevent a bar? If he could not
have been precluded, then why may he not show the same
facts when he has foreclosed by sale under the power?
If this mortgage and its foreclosure were not subject to the
qualification, that the time the mortgagor was absent from the
State would prevent the bar, as such a proceeding is not named
in the statute, we are wholly unable to see why the statute
may be relied on to bar the debt. If any of its provisions can
be invoked, then all must apply, as they would in an action.
But the question turns on the power to sell. The mort-
gage was given to secure the debt, and the power to sell was
conferred to render the security effective. It was adopted as
a speedy and an inexpensive means of foreclosing the mort-
gage and realizing the benefit of the security. The power
authorized a sale if there should be a default in payment of
the debt, and it is manifest that the power attached to the
debt, and continued and remained as long as the debt con-
tinued in force and unsatisfied. If, however, the debt had
been paid, satisfied, barred by the statute, or otherwise extin-
guished, then the power would have come to an end, and no
legal or valid sale could have been made. The extinction of
the debt would have destroyed the power to sell, as such
power is entirely dependent on the continuance of the legal
548 Phelps v. I. C. E. E. Co. [Jan. T.
Syllabus.
validity of the debt. But here the debt was still in full force,
unsatisfied, and not barred by the statute, and hence the power
had not been abrogated nor had it ended.
It then follows, that as the power still continued, because
the debt was still in force against the mortgagor, the sale was
authorized and was sufficient to pass the title. The debt
remaining in force, the power continued, and was well exer-
cised. The power being an incident to and dependent on the
debt, hence, as the debt existed, the power continued.
We perceive no error in the instructions or in the record,
and the judgment of the court below is affirmed.
Judgment affirmed.
Charles A. Phelps
v.
The Illinois Central Eailroad Company.
1. Carrier. — exemption from liability by reason of military control. Where a
railroad company was under the military control of the government of the
United States, and operated by its officers in the transportation of troops, muni-
tions of war and supplies in the suppression of the late rebellion, so that it was
not in the free and unrestrained exercise of its francise: Held, that the com-
pany was not liable as a common carrier for refusing to receive freights for
transportation, it not being safe to undertake their carriage.
2. Same — where freight is accepted for transportation. A railroad company
can not be excused for delay or neglect to transport freight, on the ground of
military interference on the part of the United States, where it accepts the
same with a knowledge at the time that it could not properly transport the
same, on account of such interference.
3. Same — estoppel. An agreement by an agent of a railroad company to
furnish cars, at a future day, in which to transport grain, and to receive and
ship the same, will not estop the company, when sued in tort upon its common
law obligation to receive and carry the same, from showing its right to refuse
to receive the grain, owing to the military control of its road by the officers
of the army of the United States.
4. Same — pleading and evidence. Where a carrier is sued in an action
on the case, to enforce a common law liability for not receiving grain for
1880.] Phelps v. I. C. E. E. Co. 549
Brief for the Appellant.
transportation, if relieved from that liability, the plaintiff can not recover
upon a contract to furnish cars and receive the grain for carriage. The con-
tract can avail no further than as a question of fact of governmental control,
as relieving from the common law duty.
5. Limitation — to new cause of action introduced by amendment of the decla-
ration. Where an original declaration against a common carrier declared
only upon the common law liability for refusing to receive grain when ten-
dered for transportation, and afterwards, under leave of court, additional
counts were filed for not carrying the grain after its acceptance, and the
defendant pleaded the Statute of Limitations, that the cause of action in the
new counts did not accrue within five years before such counts were filed,
it was held, that the defendant had the right to file such plea, and that it was
error to sustain a demurrer to the plea, the additional counts introducing an
entirely different cause of action.
6. Estoppel. It is an element of an estoppel in pais that there must have
been a representation concerning some material fact. An agreement of an
agent of a railroad company to furnish cars, and receive and ship grain at a
future time, is no admission of a common law obligation to receive and ship
the grain when offered, and presents no estoppel on the company to deny the
existence of such duty at the time the grain is offered for shipment. The rule
might be different in a suit upon the contract itself.
Appeal from the Appellate Court for the Third District.
On judgment reversing the judgment of the Circuit Court of
McLean county.
Messrs. Weldon & Benjamin, for the appellant:
The real cause of action was the not carrying the goods ;
but a common carrier is not bound to act as a mere warehouse-
man. It is not liable for a mere refusal to receive. It is the
not carrying which is the real cause of complaint. The cause
of action is the same, whether the pleader states that the com-
mon carrier refused to " receive and carry " the goods, or, that
it having received the goods, did not carry them.
What constitutes a common carrier, may depend upon facts;
but the facts have nothing whatever to do with the pleadings.
Where the pleadings show the same cause of action, it is imma-
terial what the facts may prove on the trial, and the question
under consideration relates solely to the amendment of the
pleadings. If the ruling of the circuit court as to the amend-
550 Phelps v. I. C. R. R. Co. [Jan. T.
Brief for the Appellant.
ment was right at the time it was made, in view of what was
then before it, it is right now.
"Whenever an entire verdict shall be given on several
counts, the same shall not be set aside or reversed on the
ground of any defective count, if one or more of the counts
in the declaration be sufficient to sustain the verdict." Rev.
Stat. 782, sec. 58.
The judgment was reversed by the Appellate Court on the
ground — for the first time taken in this series of grain cases —
that the action should have been ex contractu, and not in case.
If the defendant was a common carrier, it must be conceded
that case was the proper action. The company Avas certainly
a common carrier before the war. It was so held in Illinois
Central Railroad Co. v. Morrison et at. 19 111. 136. In the
McClellan case the court held that it still retained that char-
acter after the war commenced. 54 111. 73; Cobb, Christy &
Co.'s case, 64 id. 133. The only effect of the so-called mili-
tary control is to add another cause exempting the company
from its liability as a common carrier to those already exist-
ing by the common law.
During the war the liability could be excused in three ways,
namely: by the act of God, by the act of the public enemy,
and by the prevention of the military authority. So, also, its
liability might then, as well as now, be modified by special
contract between the parties ; but in neither of these cases is
the form of action affected.
Inasmuch as the company did not at the time of the trans-
action inform the plaintiff that it could not receive his grain
by reason of the military orders, but, on the contrary, prom-
ised him from day to day to furnish cars for its carriage, and
thereby induced him to continue purchasing, shelling, sacking
and delivering corn for shipment, it is now estopped from
changing its ground. Pickard v. Sears, 6 Adol. and Ellis,
469; The People v. Brown, 67 111. 435; Kinnear v. Machey,
85 id. 98; Bill v. Epley, 31 Pa. 334; Anderson v. Armstead,
69 111. 454.
1880.] Phelps v. I. C. E. R. Co. 551
Brief for the Appellee.
— — >
Messrs. Williams, Burr & Capen, for the appellee, after
stating the facts of the case, made the following points, among
others:
1. A common carrier is one who carries for all alike, and
if a carrier is compelled by law to give preference to any one,
such compulsion deprives it of ability to receive as a common
carrier, and releases it from the obligations of a common car-
rier to receive from all alike. Angell on Carriers, sees. 68,
123, 125, 129, and cases cited; Story on Bailments, sec. 495;
2 Redf. on Railways, 3, 9, 67 ; Bouvier's Law Die, art. "Com-
mon Carrier;" Dwight v. Brewster, 1 Pick. 50.
2. A common carrier is one who is bound to carry for all
who offer the accustomed freight, and offer to pay the accus-
tomed charges. 2 Redfield on Railways, 67, 116, 117.
3. A common carrier is only bound to provide reasonable
facilities for doing the ordinary business required by the pub-
lic to be done on its line, and is not required to provide for
an unseen emergency, or an unexpected accumulation of
freight. C. & C. U. R. R. Co. v. Rae, 18 111.488; Wibert v.
New York and Erie Railroad Co. 2 Kern. 245; Conger v. H.
R. R. R. Co. 6 Duer, 375; Story on Bailments, sec. 591 (a);
2 Redf. on Railways, 163, sec. 173.
4. There must be freedom of action before there can be
responsibility for that action.
5. If the State, as the law-making power, takes control of
the person, or means of transportation of the carrier, and
compels him to act under its direction, he ceases to be a free
agent, and as long as this coercion continues, he is not a com-
mon carrier. JBUven v. Hudson River Railroad Co. 35 Barb.
188; Hadley v. Clark, 8 T. R. 259; Angell on Carriers, sec.
293.
6. At the time of the grievances complained of, appellant
was not a common carrier. Illinois Central Railroad Co. v.
Ashmead, 58 111. 487 ; Same v. McClellan, 54 id. 58; Same v.
Cobb, Christy & Co. 64 id. 123; Same v. Cobb, Blaisdell & Co.
72 id. 148; Same v. Hornberger, 77 id. 457.
552 Phelps v. I. C. R. R. Co. [Jan. T.
Brief for the Appellee.
7. If the law assumes control of the property, this excuses
the carrier. Authorities under point 5.
8. The Illinois Central railroad is a military highway,
under the control of the government of the United States.
U. S. Stat, at Large, IX, 466; sec. 19, charter of this com-
pany; Purple's Stat. II, 1362; 2 Redf. on Rys. 653-655.
9. The President, by act of Congress, had authority to take
military possession of this road, and place the entire road,
with its machinery and officers, under military control. Act
of Cong. Jan. 31, 1862; 12 Stat, at Large, 334.
10. The President did take military possession of the road,
its officers and machinery, as to all shipments to Cairo, during
the time of the grievances complained of. See authorities
under No. 6.
11. A carrier is bound to receive only as he professes to
carry. Johnson v. Midland Railway Co. 4Exch. 367 (6 Eng.
Ry. Cases); 2 Redf. on Railways, 116-118, sec. 165.
12. A carrier is not responsible for a delay occasioned by
the fault of a third party. Conger v. Hudson River Railroad
Co. 6 Duer, 375.
13. Under the facts in this case the government and those
having government orders for transportation, had preference,
and occupied the entire facilities of the road, and plaintiff has
no right to complain for not getting cars. Cases under No. 6.
14. The relation of common carrier does not arise in any
case until the goods are delivered to and accepted by the car-
rier for immediate shipment, or, at least, tendered for imme-
diate carriage. A contract to carry at a future time does not
establish any common law duty or trust, and the remedy for
breach of such contract can only be upon the contract. Illi-
nois Central Railroad Co. v. Smyser, 38 111. 354 ; Cooley on
Torts, 640; Reed v. P. W. <fc B. R. R. Co. 3 Houst. 176;
Wright v. Geer, 6 Yt. 151 ; Merriam v. H. & JSf. H. R. R.
Co. 20 Conn. 354; Blanchard v. Isaacs, 3 Barb. 388; Tower
v. U. & 8. R. R. Co. 7 Hill, 47; 2 Black. Com. 451-2; Wil-
1880.] Phelps v. I. C. R. R. Co. 553
Brief for the Appellee.
Hams v. Peytavia, 4 Mort. (La.) 304; McHenryy. P. W. &B.
E. R. Co. 4 Harring. 448.
15. In suits against the common carrier, when the cause of
action is founded upon a contract and not upon the common
law duty, the action must be upon the contract, and case will
not lie. Uollisterv. Nolen, 19 Wend. 234; Thurmany. Wells,
18 Barb. 500, 517; McDermott v. M. C & B. Co. 38 N. J.
L. 53.
16. Even under the contract as claimed in this case, only
the relation of a private carrier was created. Fish v. Clark,
49 N. Y. 122; 2 Eedf. on Eys. 1; Story on Contracts, sec.
752(a).
17. Allegata and probata must agree. Cases under 15th
point, also Chicago and Alton Railroad Co. v. Michie, 83 111.
427; Moss v. Johnson, 22 id. 633, 640; Crittenden v. French,
21 id. 598; Chicago, Burlington and Quincy Railroad Co, v.
Chamberlain, 84 id. 333.
18. Even where case will lie for damages occasioned by
breach of contract, the state of facts from which the alleged
duty arises, and upon which the right of recovery is based,
must be set up in the declaration. If a party seeks to recover
by reason of a contract, he must plead that contract, in what-
ever form he may bring his action. Frink v. Potter, 17 111.
406; American Express Co. v. Pinchney, 29 id. 392, 408; J.
M. & L R. R. Co. v. Worland, 50 Ind. 339; N. O. J. & Q.
N. R. R. Co. v. Pressley, 45 Miss. 66; Alinger v. MeChesney,
7 Leigh, 660; Butler v. Livermore, 52 Barb. 570; Mann v.
Birchard, 40 Vt. 326 ; Wright v. Geer, 6 id. 457; Vail v.
Strong, 10 id. 457 ; Graves v. Severins, 40 id. 636; I. & C. R.
R. Co. v. Remmy, 13 Ind. 518; Thurman v. Wells, 18 Barb.
500; Kimball v. R. & B. R. R. Co. 26 Vt. 247; Lake Shore
and Michigan Southern Railroad Co. v. Perkins, 26 id. 247 ;
McDermott v. M. C. & B. Co. 38 N. J. L. 53; Lake Shore
and Michigan Southern Railroad Co. v. McDonough, 21 Mich.
165; Weall v. King, 12 East, 452; Maxy. Roberts, 12 id. 89;
Ireland v. Johnson, 1 Bing. N. C. 162; Burnett v. Linch, 5
554 Phelps v. I. C. E. R. Co. [Jan. T.
Opinion of the Court.
Barn. & Cr. 589; T. W. & B. R. R. Co. v. Constable, 39 Md.
149; Austin v. Manchester, etc. R. R. Co. 5 Engl, and E.
329; Cabell v. Vaughn, 1 Wm. Saund. 291; Walcott v. Can-
field, 3 Conn. 194; Pollard v. Thomason, 5 Humph. 56;
Hewison v. New Haven, 34 Conn. 136; Masters v. Stratton, 7
Hill, 101; Wilbur v. Brown, 3 Den. 356; Weed v. 8. & S.
R. R. Co. 19 Wend. 534; 1 Ch. P. 384, 135; 3 Stark. Ev.
1548; Angell on Carriers, sec. 440; 2 Greenl. Ev. 208; 1
Saunders PI. and Ev. 692.
19. A cause of action that is barred by the Statute of Lim-
itations can not be vitalized by amending or adding new
counts to a declaration in a suit brought upon another cause
of action. Illinois Central Railroad Co. v. Cobb et al. 64 111.
128, 140.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an action on the case, commenced on the 9th day
of February, 1870, by Charles A. Phelps, against the Illinois
Central Railroad Company, as a common carrier of goods
from Bloomington and Hey worth, in this State, to Cairo, for
refusing to receive and carry corn tendered for carriage by
plaintiff to defendant, in February, March and April, 1865.
The first count in the original declaration averred the
tender of corn at Bloomington, to be carried to Cairo, and
that it was the duty of defendant, as a common carrier, to
receive and safely carry the same. The breach assigned is
that defendant did not nor would receive and carry the corn.
The second count made the same averment; the breach
assigned being that defendant did not nor would receive or
carry.
The third count averred that defendant had a side-track
and stations at Bloomington, on which it was accustomed to
place cars for persons desiring to ship property, and that it
was its duty so to place them when notified ; that plaintiff so
notified and requested defendant, but it neglected and refused
to place cars on said track to be loaded with corn by plaintiff.
1880.] Phelps v. I. C. E. E. Co. 555
Opinion of the Court.
The fourth, fifth and sixth counts were like the first, sec-
ond and third, respectively, except that they substitute Hey-
worth in the place of Bloomington. This declaration was
filed August 17, 1870.
The pleas to it were the general issue, and the Statute of
Limitations — that the cause of action did not accrue within five
years before the commencement of the suit.
On the 13th day of March, 1871, plaintiff filed two addi-
tional counts to the declaration, having on the 10th day of
that month obtained leave of court for that purpose.
The first of these counts avers that defendant received at
Hey worth, from plaintiff, corn to be carried to Cairo, which
it was its duty to carry and safely deliver; the breach is, that
it did not carry and transport the corn to its place of destina-
tion within a reasonable time.
The second count avers that defendant received and per-
mitted to be loaded upon its cars at Heyworth the corn of
plaintiff to be carried to Cairo, and that it was defendant's
duty so to carry it and safely deliver it to plaintiff at Cairo,
which it neglected and refused to do, but permitted it to
remain at Heyworth until it was spoiled.
To the additional counts defendant pleaded the general issue,
and that the causes of action stated were other and different
from the causes of action declared on in the original declara-
tion, and that the same did not accrue within five years before
filing or having leave to file the additional counts.
To the latter plea, of the Statute of Limitations, plaintiff
demurred, and the court sustained the demurrer, and defend-
ant stood by the plea. Upon trial had of the issues of fact
the plaintiff recovered, and on appeal by defendant to the
Appellate Court for the Third District the judgment was re-
versed* and the present appeal is by plaintiff from the judg-
ment of the Appellate Court.
We regard this case as disposed of essentially under former
decisions of this court.
556 Phelps v. I. C. E. R. Co. [Jan. T.
Opinion of the Court.
There have been a series of former cases before this court
where, upon the state of facts presented by this record, we have
held that during that time when this plaintiff offered the corn
for shipment, the Illinois Central railroad was under the mili-
tary control of the government of the United States, and that
the road was operated by its officers under the direction and con-
trol of the officers of the army in the transportation of troops,
munitions of war and supplies in the suppression of the
rebellion. That during that period the company was not in
the free and unrestrained exercise of its franchise, and that
the interference of the government had, to some extent, sus-
pended the functions of the company as a common carrier.
That the road was so far under governmental control that the
company could not be held liable for refusing freights when it
would not be safe to undertake their carriage, or for discrimina-
tion in consequence of military orders. The cases are : Illinois
Central R. R. Co. v. McClellan, 54 111. 58; Illinois Central
R. R. Co. v. Ashmead, 58 id. 487 ; Illinois Central R. R. Co.
v. Cobb, Cliristy & Co. 64 id. 128; Illinois Central R. R. Co.
v. Hornberger, 77 id. 457. It appears that by consent of
parties the defendant introduced in evidence the testimony
appearing in the printed abstracts in the foregoing cases in
this court, so that the same state of facts appearing in those
cases was shown in this.
It must be taken as settled, by these former decisions, that
there was no liability here of the defendant as a common
carrier for refusing to receive the corn which was offered for
carriage. That was expressly decided in the Ashmead and
Hornberger cases, — that there was no liability for the refusal
to receive. But it was held in the other cases, that if the
company thought proper to receive freight, and issue its bills
of lading therefor without containing any exception a£to the
governmental control, that then it would be acting as a com-
mon carrier, and would be subject to the liability attaching to
.that function.
1880.] Phelps v. I. C. E. R. Co. 557
Opinion of the Court.
Some special features of the present case are to be con-
sidered.
There is a question as to the correctness of the decision of
the Appellate Court that the causes of action described in the
additional counts, to-wit, failure to carry, after having received
the corn for carriage, were barred by the Statute of Limita-
tions, because the evidence showed that they accrued more
than five years before these counts were filed.
The solution of the question depends upon whether the
additional counts set up entirely new causes of action.
In Illinois Central B» B. Co. v. Cobb, Christy & Co. above
cited, this court said : " Counsel for appellees cite various
authorities for the purpose of showing that courts should be
liberal in allowing amendments for the purpose of avoiding
the running of the statute (of limitations). These authorities,
however, are cases where the amendment was for the purpose
of restating the cause of action in the pending suit, and not
for the purpose of introducing a wholly new and different
cause of action." The causes of action declared on in the
original declaration in the present case were for a failure to
perform a common law duty by a common carrier, — to receive
and carry goods offered for carriage. The causes of action
stated in the additional counts are for failing to carry and
safely deliver goods which defendant had received for carriage
as a common carrier. The former were for refusing to enter
upon the performance of the duty of a common carrier; the
latter were for the failure to complete the performance of the
duty of a common carrier, the performance of which had
been entered upon. Under the circumstances of this case,
and our former decisions, the distinction is vital, — there being
no liability for refusing to receive and carry, but only for not
carrying, after having received the freight. The receipt is a
necessary element of the cause of action. The original decla-
ration negatived such receipt ; the amended one averred it.
We are disposed to agree with the view taken by the Ap--
pellate Court, that there were wholly different causes of action
558 Phelps v. I. C. R. R. Co. [Jan. T.
Opinion of the Court.
declared on in the original and amended counts of the decla-
ration, and that the evidence showing that the causes of action
described in the additional counts accrued more than five
years before those counts were filed, they were barred by the
Statute of Limitations.
There is a claim of a right of recovery in the present case
because of an alleged contract made with plaintiif by Mr.
Forsyth e, the general freight agent of the company, in Feb-
ruary, 1865, to furnish cars within a reasonable time there-
after to carry plaintiff's corn to Cairo.
We do not see that such a contract would form a ground
of recovery in this suit.
We can not do better than to repeat here what was correctly
said by the Appellate Court in their opinion in this case:
" The suit is not brought on a contract, but in tort for a
failure to perform a common law duty. Where the duty
exists by law, and the party contracts for its performance, suit
may be brought either upon the contract, or in case for the
non-performance of the duty imposed by law; but where the
law imposes no duty, or, as in this case, the party is for the
time being relieved from its performance, and he contracts to
do what the law does not require him to do, independent of
the contract, the only remedy is upon the contract." The
contract, not being declared upon, could not be a basis of
recovery in the present action. It can avail no further than
as evidence upon the question of fact of governmental con-
trol.
It is urged, however, that by such contract the company
would have held themselves out to the world as common car-
riers, which would be equivalent to the receipt of the prop-
erty in the cases of McClellan, and Cobb, Christy & Co., and
that within the principle of the decisions in those cases, that
from the receiving of the freight the company came under the
liability of common carriers, the company assumed the same
responsibility of common carriers in this case, by the making
of such a contract to furnish cars. We do not think the cases
1880.] Phelps v. I. C. K. K. Co. 559
Opinion of the Court.
sustain this position. In those cases the company had re-
ceived and taken into their own possession the goods for
transportation, and issued bills of lading therefor in the usual
form, without stipulation against the contingency of military
control, by which it agreed to deliver the goods to the con-
signee at Cairo. The suits were for not delivering in a rea-
sonable time. In the one case, it was said, had the company
"not intended to assume such responsibility, (of common car-
riers,) they should have refused to receive the grain, or limited
their liability by their bills of lading ;" and in the other, that
the company, "having received this corn upon its cars as a
common carrier, and under a contract to deliver it in Cairo,
and knowing, too, the liability of corn in cars to be damaged
in a few days at that season of the year, was bound to deliver
it at its destination in a reasonable time. This it did not do."
And again: "As soon as this blockade began along the road,
it was not only the right of the company, but its plain duty,
to refuse to receive more corn for shipment until its line was
clear. On no principle of law can it be excused for accept-
ing corn which it knew at the time it could not properly
transport. The more imminent the peril to the freight, the
greater was the obligation of the carrier to refuse it, except
upon a special contract," and that the carrier voluntarily
assumes the risk when he accepts the shipment without con-
dition.
This must suffice to show that a mere agreement to furnish
cars at a future time for the transportation of grain, comes
quite short of the facts which formed the ground of liability
declared in the former cases, and is not enough to bring the
present case within the principle of those decisions.
It is urged, further, that such an agreement should have
the operation of an estoppel upon the company in this case.
It is considered as an element of an estoppel in pais that there
must have been a representation concerning some material
fact. The only material thing here which it is important for
the plaintiff that the company should be estopped to deny, is,
560 Brown et at v. Bjggin et al. [Jan. T.
Syllabus.
its liability as a common carrier, under its common law duty
as such, to receive and carry this grain at the time it was
offered for shipment. It is not necessary to consider what
might be the effect in a suit upon the contract itself, but in
this suit, in tort upon the common law duty of the common
carrier to receive and carry the grain, it is not perceived how
this antecedent agreement to furnish cars, and receive and
ship the grain at a future time, can be set up as an estoppel
to the defence that, when the grain was afterwards offered for
shipment, the common law obligation of a common carrier to
receive and carry goods offered for carriage was not at that
time upon the company, in respect to this grain. The agree-
ment was no admission of such common law obligation, and
we can not see why it should be held as an estoppel upon the
company to deny the existence of it. It indicated the com-
pany's belief that it would be able to receive and carry the
grain, and, as already intimated, might be evidence tending
to show there was no impediment in the way of carrying,
from military control. This we think to be the extent of its
force in this case.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed,
Mr. Justice Scott dissenting.
Luther Brown et al.
v.
James H. Riggin et al.
1. Wily,— mental capacity of testator. If a testator, at the time of making a
will or codicil thereto, is capable of attending to ordinary business and of
acting rationally in the ordinary affairs of life, the will or codicil will not be
set aside for the want of sufficient mental capacity. And although the testator,
about the time of making the will, may at times have been unconscious from
disease, yet if he made the same when conscious of what he was doing, and on
1880.] Brown et al. v. Eiggin et at. 561
Statement of the case.
his recovery makes one or more codicils thereto, the last several years after
making the will, this will be a republication and adoption of the will subject
to the changes made by the codicil.
2. Where a party made a will and afterwards made two or three codicils
thereto, all of which were duly attested, it was held error to instruct the
jury, on a contest of the will and codicils, so as to require them to find the
testator capable at the several times when the instruments were executed.
If the jury was satisfied of his capability at any one of the times, they
should have been instructed to find the act then done and the preceding acts
valid.
3. Same — test of mental capacity. On the contest of a will for mental
incapacity, the question of capacity involves the simple inquiry whether the
testator was or was not, at the time of making the will, able to understand
and reasonably transact the ordinary business of life — whether he was able
to buy and sell, collect accounts, and did he understand the business in
which he was engaged. But inability to transact business from physical
weakness does not of itself incapacitate one from making a will.
4. An instruction to the jury, on the trial of a contest of a will for mental
incapacity in the testator, is erroneous if it assigns more weight to the
testimony of nurses and attendants than to the opinion of the subscribing
witnesses. The jury and not the court must judge of the weight to be given
to each part of the proofs in the case.
5. The proof of periodical epileptic attacks attended with convulsions,
loss of consciousness and the usual sequences of such attacks, or proof of
temporary pneumonia supervening such attack, with fever and delirium, is
not such proof of insanity or lunacy as will justify an instruction based upon
the presumption of its continuance.
6. Parties — to bill contesting will. On a bill in chancery, under the statute,
to contest the validity of a will, all the legatees and devisees in the will are
necessary parties, and a decree taken omitting such necessary parties will be
reversed.
Appeal from the Circuit Court of St. Clair county; the
Hon. William H. Snyder, Judge, presiding.
This was a bill in chancery, filed by James H. Riggin, an
insane person, by his next friend, Ignatius Riggin, to the
September term, 1875, against Luther Brown and Robert
Allyn, executors of the last will and testament of Elizabeth
M. Riggin, impleaded with Edward B. Riggin and others, to
contest the validity of the will and testament and three
several codicils thereto.
36—94 III.
562 Beown et ol. v. Eiggin et al. [Jan. T.
Brief for the Appellants.
Several persons were made parties defendant as legatees, but
on some process was not served, and as to them the bill was
afterwards dismissed. As to some others, no rule to answer
was taken, and no answer was filed and no default taken.
At the April term, 1877, the court ordered an issue to be
made up whether the writings purporting so to be, were the will
and codicils or not of the said Elizabeth M. Eiggin, and a
jury being sworn to try the issues, found that they were not
the will and codicils of the said Elizabeth M. Eiggin.
A motion for a new trial was made and overruled. A
decree was rendered upon the verdict and appeal by consent
taken to the Central Grand Division.
The seventh instruction referred to in the opinion is to the
effect that when insanity or lunacy is once established to have
existed, the presumption of its continuance arises until
rebutted by proof, the burden of which lies on the party
alleging a restoration or lucid interval, and that if the jury
believe from the evidence that the papers in question were
executed after insanity has been proved, then it is incumbent
on the parties insisting on the validity of the will to show to
the satisfaction of the jury that the testatrix was sane at the
time of making of said will and codicils respectively.
Messrs. G. & G. A. Kcerner, for the appellants :
Where a will has been produced and the execution thereof
proved by the attesting witnesses, the proof of insanity is
thrown on the contestants, and they must prove insanity by
a preponderance of testimony. Lilly v. Waggoner, 27 III. 395.
If the mind of a testator is sufficiently sound to understand
the nature of a will and the subjects and objects of his dispo-
sition, the will is valid. 1 Jarman on Wills, 51 ; Trish v.
Newell, 62 111. 205; Meeker v. Meeker, 75 id. 267.
A will and codicil are to be read as made at the same time
and incorporated, and a codicil republishes the will and
makes it the same date as the last codicil, and makes the will
to speak from the date of the codicil, if the latter refer to it
L880.] Brown et al. v. Riggin et al. 563
Brief for the Appellees.
in such a way that there can be no doubt of its identity.
1 Williams on Exors. 178, and n. 2 and 3.
In this case the codicil refers to the will and former codicil,
so that even if the testatrix was insane when the will was
signed by her, the subsequent codicils, if made when sane,
republish the will and must stand. 1 Rich. S. C. 80, and note
to page 178; 1 Williams on Exors. 184, note m and 2.
The partial impairment of mind by age and disease does
not disqualify a person from making a will. 1 Williams on
Exors. 16; Meeker v. Meeker, 75 111. 267; Rutherford v.
Morris, 77 id. 412.
Dr. Allen may have encouraged a bequest to the college,
so did Mr. Blair, as the evidence shows; and even if they had
persuaded hard, — urged vigorously a donation for a noble in-
stitution,— they would, under the decisions of our courts, have
been perfectly justified. Rutherford v. Morris, 77 111. 412.
There was a want of necessary parties. The legatees,
leaving out the college, had an interest in the question to the
amount of more than $16,000. This proceeding is subject to
the rules governing in chancery, and the court will take
notice of the omission of necessary parties defendant. Pren-
tice v. Kimball, 19 111. 320; Hassit v. Ridgley, 49 id. 197;
Ryan v. Lynch, 68 id. 160.
Mr. Jehu Baker, also for the appellants.
Messrs. Gillespie & Happy, for the appellees:
In regard to the point raised for the first time by appel-
lants' brief that the bill was dismissed as to certain legatees —
Elizabeth Raney, Caroline Yercum and Mary A. Rogers — we
insist they were not necessary parties, being fully represented
by the executors. They were legatees to small sums of
money.
As to the personalty, the courts have invariably held that
the executor or administrator fully represents the creditors,
distributees and legatees, who, as to all orders, judgments and
decrees, are in privity Avith the personal representatives of
564 Brown et al. v. Riggin et al. [Jan. T.
Opinion of the Court.
the testator or intestate. Stone et al. v. Ward, 16 111. 177;
Rallston v. Wood, 15 id. 168; Gray v. G Milan et al. id. 454;
Freeman on Judgments, sec. 319 a, and authorities there cited.
The proper mode of raising the objection that all the par-
ties interested in the cause are not before the court, when
that appears on the face of the bill, is by demurrer. Dennis-
ton et al. v. Hoagland, 67 111. 265.
The authority for the seventh instruction is in the case of
Menhins v. Lightner, 18 111. 284, which refers to 2 Greenl.
Ev. sec. 371 ; Jackson v. Van Dusen, 5 Johns. 154; Grabil
v. Barr, 5 Pa. State, 441. The same doctrine is found in
Ray's Med. Juris, of Insanity, 416.
In considering the verdict of the jury in this case the court
will be governed by the same rules that obtain in cases at
common law. Meeker v. Meeker, 75 111. 260.
At law, unless the verdict of the jury is manifestly against
the weight of evidence, it will not be disturbed. Allen v.
Smith, 3 Scam. 97; Ellis v. Locke, 2 Gilm. 459; Evans v.
Fisher, 5 id. 572; Dawson v. Robbins, id. 72; Mann v. Rus-
sell, 11 111. 586; Weldon v. Francis, 12 id. 460.
The policy of the English courts was to sustain wills, for
the reason that the English laws of descent were unjust. Our
laws of descent, on the contrary, are just, distributing one's
property equitably, and hence the policy of our courts should
be rather against than in favor of wills, sustaining them only
where they are clearly established to be the free and deliber-
ate act of a sound and disposing mind.
Mr. James M. Dill, also for the appellees.
Mr. Justice Dickey delivered the opinion of the Court:
Testatrix died in July, 1875, being about sixty-nine years
of age and a widow, leaving as her heirs at law the insane son
in whose behalf the bill is filed, then in an asylum, and a
grandson, who is made defendant, but against whom no
decree has been taken.
1880.] Brown et at. v. Biggin et al. 565
Opinion of the Court.
It appears, from the evidence, that the deceased was an
intelligent and cultivated woman, in apparent good health,
being strong and robust, though of nervous temperament,
with some tendency, as one of the witnesses says, to conges-
tion of the brain ; but she is generally spoken of as a woman
of gifted and brilliant mind, and in vigorous physical condi-
tion previous to the 14th of November, 1868. On that day,
at the age of sixty-two, she was attacked, while at her domestic
labors, with a severe epileptic fit, — as one of the witnesses, a
physician, thinks, with an apoplectic complication, involving
a brain lesion. But from the whole testimony, there does
not appear to have been any paralysis or other exhibit of
serious apoplectic complication. While the fit lasted she was
unconscious, but during the night her consciousness was
restored, and on the following day she was able to give an
intelligible account of her disease, and of the manner in
which she was taken.
An attack of pneumonia supervened the epileptic convul-
sions, superinduced, as was supposed, by the application of
ice to the head; and this attack was accompanied with high
fever with occasional delirium, during which she would be
unconscious or incapable of rational conceptions ; and her
condition was that of a person in extreme illness, though the
witnesses immediately about her person, summoned on both
sides, concur in saying that while occasionally out of her
mind, at other times she was rational and intelligent, the
mental condition being plainly the usual condition of delirium
attendant on high fever. But no witness, either expert or
other, fixes her condition as one of settled loss of reason at
or near that period.
On the 23d of November, 1868, she made the will. It
seems to have been prepared by Allyn, one of the executors
named, who was a neighbor and friend. On its being brought
to her, she sat up in bed and stated that it was her last will
and testament, and signed it in the presence of the attesting
witnesses, one of whom testified, and the other had died
before the testatrix.
566 Brown et ah v. Riggin et al. [Jan. T.
Opinion of the Court.
The witness testifies that at that time "she was perfectly
in her mind and knew just what she was doing, — that she
answered questions with perfect intelligence/' and there is no
sufficient testimony to shake this statement. All the testi-
mony (except some not very satisfactory opinions of persons
not experts) may well be true, and yet this account of this
intelligent condition of the testatrix, at the time of the exe-
cution of the will, remain unshaken.
On the 9th of December, 1868, she made the first codicil,
which was attested by the witness above mentioned, who had
attested the will, and who testified at the trial. It was also
attested by the husband of this witness and by another. These
three witnesses concur that at that time, to use their language,
she was sane and knew what she was doing. One of the wit-
nesses says she talked cheerfully, and they had quite an ex-
change of language before testatrix signed the -codicil, and she
understood herself as correctly as any person could. Another
of the witnesses says she was lying on the bed and told him
it was no house contract (he was a house builder and they had
previous contracts). At her request these two witnesses then
signed as attesting witnesses the will which she then repub-
lished.
No witness is introduced by the contestants to contradict
her then condition as testified to. The most that can be said
of the assailing testimony is, that the testatrix about this time
was ill — sometimes better — sometimes worse — rational some-
times for moments or hours, then flighty — and when affected
by the epileptic spasms, unconscious — and when under suffer-
ing from fever, delirious. But inasmuch as it is positively
proved by several witnesses that, at the particular time of
executing the will and republishing it by the codicil, she was
neither unconscious nor delirious, but both conscious and
rational, this testimony should prevail, for thereby all the
testimony may be harmonized.
On the 19th of October, 1870, she made a second codicil,
which was attested by two yet other subscribing witnesses.
1880.] Bkown et al. v. Biggin et ah 567
Opinion of the Court.
One of them says she was sitting up in the parlor at the
time — in the forenoon; that she said to him, "this codicil
contains my wishes/' and she wished him to sign it as a wit-
ness. This witness testifies to her sanity at that time ; and
he further testifies that she was perfectly sensible at all times
when he saw her, except on one occasion, which he described.
The other witness to this codicil is equally clear on the ques-
tion of her capacity at that time. And we look in vain in
the testimony of the contestants for any contradiction of
these positive statements, which reach to the very heart of
this controversy.
The last codicil is made August 11, 1873, and this is attested
by still two other subscribing witnesses, and both of these
concur in strong, positive statements. At that time, Mrs.
Riggin was sitting up, and said she was glad to settle the busi-
ness and get it off her mind. One of the witnesses inquired
if she understood what she was doiug, and she said she did;
that she advanced or paid to the church the legacy intended
for it, and wanted to cancel it. One of these witnesses says
she was not then in as good condition as before, but that she
understood the business she was engaged in. He was a physi-
cian; had known her for forty years; had seen her a number
of times when, by reason of the epileptic attacks, she was
incompetent, but at other times she was rational, and at this
time was capable of understanding what she did, — and this is the
usual fluctuating conditions of persons afflicted with epilepsy.
The testimony of the subscribing witnesses is corroborated
by that of other witnesses, who knew deceased more or less
intimately, and saw her more or less frequently, between
November, 1868, and her death, in 1875. Some of them tes-
tify to business transactions in which she showed memory and
discernment and capability, and others to social occupations
in which she manifested intelligence. On the other hand,
there is a diversity of opinion, and the witnesses for the con-
testants more or less strongly speak of the impairment of her
condition, mental and physical, from the first attack until
568 Brown et al. v. Kiggin et al. [Jan. T.
Opinion of the Court.
shortly before her death, and when, as they say, she was re-
duced to idiocy; but none of them speak to any permanent
or settled condition ; all of them recognize periods of improve-
ment, and none of them contradict the express condition at
the execution of the testamentary papers, as sworn to by the
subscribing witnesses.
We see no reason to suspect the fairness of these witnesses;
no improper influence is alleged; they have no relations which
necessarily attach suspicion to them; their selection as attest-
ing witnesses because of their relations with the deceased,
their intelligence and their respectability, was natural and
proper. It is a powerful circumstance, in this connection,
that although she lived seven years after making the will
and nearly two after the last codicil, and although she had
undoubted periods of freedom from attack, she never ex-
pressed any dissatisfaction with what she had done. On the
whole, the weight of evidence seems strongly to preponderate
against the finding.
Where the proof shows facts evincing sufficient capacity in
a testator to transact his ordinary business about the time of
making a will, the opinions of witnesses as to a want of
capacity are entitled to but little weight on the question.
Carpenter v. Calvert, 83 111. 62.
It would seem, from all the evidence, that at the various
periods of making the will and codicils, the testatrix was
capable of ordinary business, and of acting rationally in the
ordinary affairs of life; and this is sufficient to enable her to
make a valid will. Rutherford v. Morris, 77 111. 397; Meeker
et al v. Meeker, 75, id. 266.
Where the verdict of a jury seems against the weight of
the evidence, it becomes our duty to scrutinize the rulings of
law, and the judgment in such case will be reversed for errors,
if any, found in the instructions, calculated to mislead the
jury as to the questions of fact involved.
The first instruction requires the jury to find the decedent
capable at the several times when the instruments were exe-
1880.] Brown et al. v. Riggin et al. 569
Opinion of the Court.
cuted. This was calculated to mislead. If the jury were
satisfied of her capability at any one time, it should have
validated the act then done, and the preceding acts by that
means republished.
The question of capacity involves the simple inquiry,
whether the testatrix was or was not, at the time in question,
able to understand and reasonably to transact the ordinary
business of life. Was she able to buy and sell, and collect
accounts? Did she understand the business in which she was
engaged? Too much stress was laid on a comparison between
her then and former business habits. Notwithstanding the
change she might have undergone, she may still have had the
capacity to make a will. The failure to transact business
may be the result of physical ailment, not affecting the mind
at all. After such comparison had been called to the atten-
tion of the jury, in the first instruction, as furnishing a cir-
cumstance for the jury to take into consideration, sufficient
consideration was given to it. Its introduction more promi-
nently in the second instruction was calculated to mislead.
The fifth instruction, in substance, assigns more weight to
the testimony of nurses and attendants than to the opinions
of the subscribing witnesses, which is erroneous. The jury,
and not the court, must judge of the weight to be given to
each part of the proofs. It also assumes that the witnesses
spoken of as nurses and attendants testified as to the condi-
tion of deceased at the times of the execution of the will and
codicils, when there is no such evidence.
The seventh instruction was inappropriate. The proof of
periodical epileptic attacks, attended with convulsions, loss
of consciousness, and the usual sequences of such attacks, or
proof of temporary pneumonia supervening such an attack,
with fever and delirium, is not such proof of insanity or
lunacy as creates the presumption referred to in this instruc-
tion. The eighth instruction assumes that insanity had been
proved, and is for that reason erroneous. It is not difficult
to see how the jury were mistaken.
570 Brown et al. v. Biggin et al. [Jan. T.
Opinion of the Court.
We think the legatees ought to have been made parties to
this proceeding. The statute contemplates not merely the
trial of the issue of law devisavit vel non, but also a
settlement of this issue in such form as to bind all interested,
and to settle the respective interests. There would be no
object for the institution of this proceeding in chancery if
such was not the intention.
After the probate of the will in the county court, it is
allowed to any person interested, within three years, by his or
her bill in chancery, to contest its validity, and upon the issue
made up, it shall be tried by a jury according to the practice
of the courts of chancery in similar cases. Rev. Stat. 1845,
p. 537, sec. 6.
It is a rule in equity that all persons who have any sub-
stantial legal or beneficial interest in the subject matter in
litigation, and who will be materially affected by the decree,
must be made parties. Atkins v. Billings, 72 111. 597; Moore
v. Munn, 69 id. 591. And there is no reason for relaxing
this rule in proceedings like the present, especially as such
proceeding is necessary within the time limited to avoid the
binding and conclusive effect of the probate. If the contest-
ing party should not be required to bring in all parties in
interest, we should have the necessity for repeated bills, as
each party in interest might desire to avoid the bar of the
statute, and devise similar issues and trials to settle the one
question. It is the better, and we think the necessary, prac-
tice that all parties in interest should be before the court.
This being so, the case falls within the other rule, that it is
the duty of complainant to see that he has before the court all
necessary parties ; and where he takes a decree without making
the necessary parties defendant, where they are disclosed to
him, the decree will be reversed. Hopkins v. Boseclare Lead
Co. 72 111. 373.
The decree will be reversed and the cause remanded.
Decree reversed.
OASES
ARGUED AND DETERMINED
IN THE
SUPREME COURT OF ILLINOIS
Seth W. Hardin
v.
Nial S. Osborne.
Filed at Ottawa, March 23, 1880.
1, Assignee in bankruptcy — prior unrecorded deed from the bankrupt. An
assignee in bankruptcy does not take the title to the property of the bankrupt
as an innocent purchaser without notice, free from latent equities, etc., but he
takes as a mere volunteer, standing in the shoes of the bankrupt as respects
the title, having no greater rights in that regard than the bankrupt himself
could assert.
2. So, where a bankrupt had conveyed land prior to the time he was
adjudged a bankrupt, and the deed remained unrecorded, no title would pass
to the assignee as against the purchaser holding under the prior unrecorded
deed.
Appeal, from the Circuit Court of Will county.
Mr. Edmund S. Holbrook, for the appellant :
The assignee in bankruptcy takes only such rights of prop-
erty as the assignor had at the time. James* Bankrupt
Laws, 36, 37; Cole v. Duncan, 58 111. 176; Bentley v. Wells,
61 id. 60; Stowe v. Yarwood, 20 id. 438, 497; O'Hara v.
Jones, 46 id. 288.
572 Hardin v. Osborne. [March
Brief for the Appellee.
Mr. G. D. A. Parks, for the appellee:
If the deed of trust from Bailey & Reynolds to Brower &
Wynkoop was not delivered until after the proceedings in
bankruptcy, the Bankrupt law of 1841 ipso facto vested the
legal title in the assignee absolutely, and the plaintiff can not
recover, aud such is the fact, as will appear from unmistak-
able indications on the face of the papers.
The d^ed to Brower & Wynkoop was not recorded until
1844, and was therefore subject to the paramount rights of
the assignee.
The legal estate in the case of an assignment for creditors,
even without reconveyance, being created for and limited to
certain objects, expires with the expiration of the trust. Rees
v. Gibson, 50 111. 405.
The indebtedness which the assignment was made to secure
was entirely extinguished by the discharge in bankruptcy of
the assignors, Bailey & Reynolds.
If the foregoing proposition should not be maintained, still
the defendant, as to the quarter section, established a defence
under the second section of the Limitation law of 1839.
Hardin v. Crate, 60 111. 215; Hardin v. Osborne, 60 id. 93.
All the estate of the bankrupt, real and personal, whether
named in the schedule or not, vests in the assignee by oper-
ation of sec. 3 of the act of Congress of 1841. Holbrooh v.
Brenner, 31 111. 502 ; Holbrooh v. Coney, 25 id. 543; Holbrooh
v. Dickinson, 56 id. 499; 3 Pars, on Conts. 472.
The assignment for creditors was made in 1838, and Bailey
& Reynolds bought the land in controversy at sheriff's sale
on December 1, 1840; therefore it can not be maintained that
they took and held that title in trust for creditors. But,
even if they did, the legal title vested in the assignee subject
to the trust. The fee must always be somewhere.
The deed of Bailey & Reynolds to Brower & Wyncoop bears
date May 1, 1841, but the acknowledgment was taken after
Bailey & Reynolds were adjudged bankrupts. The presump-
tion that a deed was executed on the day of its date prevails
1880.] Hardin v. Osborne. 573
Brief for the Appellee. Opinion of the Court.
only till rebutted by evidence or overborne by countervailing
presumptions. Blanchard v. Tyler, 12 Mich. 342; Buck v.
Cole, 4 Sand. 79 ; Draper v. Snow, 20 IN". Y. 331 ; Dodge v.
Hopkins, 14 Wis. 641 ; Elsey v. Metcalf, 1 Denio, 326 ; Jack-
son v. Schoonmaker, 2 J. K. 234 ; Blake v. Fash, 44 111. 345 ;
Henderson v. Mayor of Baltimore, 6 Md. 78; Barry v. Hoff-
man, 37 Eng. Com. L. 392; Newlin v. Osborne, 4 Jones' L.
(K C.) 157; Harris v. Norton, 16 Barb. 264; County of
Henry v. Br adshaw, 20 low a, 355; Genter v. Morrison, 31
Barb. 155; Wykoffv. Bemsen, 11 Paige, 564; Best on Pre-
sumptions, sec. 133;. 3 Wash. Eeal Prop. 253.
The deed to Brower & Wynkoop, Hardin's grantors, was
not recorded till 1844. The title vested in the assignee in
bankruptcy, Waddell, in 1842, must prevail against such
unrecorded deed. 5 U. S. Stats, at Large, 443; 3 Pars, on
Conts. 472; Holbrook v. Dickinson, 56 111. 499; Bump on
Bankruptcy, 327.
Messrs. Goudy, Chandler & Skinner, also for the
appellee :
1. The deed of Bailey & Eeynolds to Brower & Wynkoop
is a deed of trust for the benefit of creditors.
2. When the objects of a deed of trust are accomplished,
the legal title is invested in the reversioner without a new
deed of conveyance.
Mr. Chief Justice Walker delivered the opinion of the
Court :
Numerous errors have been assigned on this record, but we
deem it unnecessary to consider any more than those which
question the giving of the sixth and seventh of defendant's
instructions, and the refusal to give plaintiff's twenty-fifth
instruction.
This is the sixth instruction: "The jury are further instructed,
that an assignee in bankruptcy takes all the estate of the
bankrupt liable for the payment of the debts under the oper-
574 Hardin v. Osborne. [March
Opinion of the Court.
ation of law, in the same manner and to the same extent
as an innocent purchaser without notice, and that as against
the assignee, and under the registry laws of this State, an
unrecorded deed will pass no title; and if the jury believe,
from the evidence, that the deed from Bailey & Reynolds to
Brower & Wynkoop was not recorded until after Bailey &
Reynolds had been adjudged bankrupts, that such deed, as
against such assignee, will not convey title."
The seventh is as follows: "If the jury believe, from the
evidence taken, that Bailey & Reynolds were adjudged bank-
rupts before the deed from Bailey & Reynolds to Brower &
Wynkoop was recorded, such deed will not pass title, as
against the assignee, and the plaintiff can not recover."
The twenty-fifth instruction asked by plaintiff and refused
by the court reads: "The court instructs the jury, as a quali-
fication to defendant's sixth instruction, that if the assignee
had actual notice of the existence of the deed of Bailey &
Reynolds, and the fact of the conveyance made before and at
the time of the bankruptcy of Bailey & Reynolds, then the
law is, that he took no title as against such deed, although it
is not recorded at the time." This presents the question
whether the assignee takes the title of the bankrupt as a bona
fide purchaser, free from all liens or claims known as latent,
or whether he takes as a volunteer. It is believed that no
case has gone the length of holding that an executor or ad-
ministrator takes the title to the property of the deceased
free from all equities or adverse claims. And they take for
the benefit of creditors. The will in many cases devises the
title to real estate to the executor for the benefit of creditors,
and the title so vests in him when letters testamentary are
granted, and yet he holds the property subject to all liens,
claims or equities, precisely as did the testator. The law vests
the title to personalty for the benefit of creditors in an ad-
ministrator, and yet he only takes it as it was held by the
intestate.
In the case of Willis v. Henderson, 4 Scam. 13, it was held,
1880.] Hardin v. Osborne. 575
Opinion of the Court.
that an assignee who took by conveyance for the benefit of
creditors, without notice of a prior incumbrance, took no
better title than that held by his grantor. It was there said :
"So far as he is concerned his conveyance is entirely volun-
tary, and under it he could acquire no rights to the prejudice
of the equitable interests of the complainant." See Tallcott
v. Dudley, 4 Scam. 427, where the same rule is announced as
to an assignee in bankruptcy. Also, Strong v. Clawson, 5
Gilm. 346, which announces the same rule.
In the case of Stow v. Yarwood, 20 111. 497, the parties had
mutual demands against each other, and Stow became a bank-
rupt and was discharged from his debts. The court below
held, that by the assignment in bankruptcy Stow's claim
against Yarwood passed to the assignee, and Yarwood could
not set off his claim, but must pay the claim of Stow against
him to the assignee. But this court said : " It is true that
everything that was due to Stow from Yarwood and all
others, passed to his assignee, but they passed to him subject
to all equities and defences of every description which existed
against them in the hands of Stow. This is a principle
recognized everywhere." It was also held, the assignee took
as a volunteer, and therefore the assignment in nowise changed
the right of Yarwood to set off his claim against that of Stow,
which had passed to the assignee.
It is believed that other cases might be referred to
holding the same doctrine, if it were deemed important, but we
regard these as sufficient. They seem to us to be just, reason-
able and according to a fair construction of our recording law.
It may be that there is not harmony in the decisions of the
courts of other jurisdictions, but ours are uniform, and, as
far as this jurisdiction is concerned, we regard it as settled
that the assignee takes no better or greater title as against an
unrecorded deed than was held by the bankrupt. If, however,
in such a case the assignee were to sell and convey the land
to an innocent purchaser without notice, and he were to place
his deed on record before that of the prior purchaser, a dif-
576 Hardin v. Osborne. ' [March
Opinion of the Court.
ferent case would be presented. Suppose the debts had been
paid without the sale of the land, does any one*" suppose the
bankrupt could have held it against his former grantee
whether or not his grantee had recorded his deed? Where
the purchaser had paid his money and received the convey-
ance, his equities are surely equal to that of other creditors.
His deed operated to convey to him the title, and the creditors
have advanced nothing to procure a lien on the land, and the
order declaring him a bankrupt and the appointment only
operated as a transfer of whatever interest the bankrupt held
for the benefit of his creditors.
The case of Holbrooh v. Dickenson, 56 111. 497, is referred
to as bearing on this question. On examining it we fail to
perceive that it should have any controlling effect. That
was a case where the bankrupt, before the decree in bank-
ruptcy was rendered, had conveyed to Gurdon Hubbard, but
that deed was never recorded. The assignee sold the land
to Holbrook and conveyed the land to him. It was held,
under these facts, that the defendant could not set up or show
the unrecorded deed to Hubbard to defeat Holbrook's title.
Thus, it is seen that the case is unlike the rule announced in
these instructions. They say nothing in regard to a pur-
chase from the assignee. Again, the previous decisions of
this court hold the assignee to have no more or greater title
than was held by the bankrupt, and are not questioned, but
are held not to be decisive of this question.
The court erred in giving these instructions for defendant
and refusing that asked by the plaintiff, and the judgment
of the court below must be reversed and the cause remanded.
Judgment reversed.
1880.] Andrews v. Campbell. 577
Briefs for the Appellant and the Appellee.
David Andrews
v.
Alexander C. Campbell.
Filed at Ottawa, March 23, 1880.
1. Default — setting aside discretionary. A declaration was filed ii^apt
time, with an affidavit of claim, and a default was taken, and an affidavit of a
meritorious defense was filed by the defendant, and also that of his attorney
that he had prepared a plea a few days before the term, and the defendant
attached thereto an affidavit verifying his plea and setting out his defence,
and the attorney placed the plea and affidavit in the hands of a young man
in his office, who usually attended to having his papers filed, with directions
to file them, and the attorney supposed they had been filed until the day of the
default, and he learned of the default on the tenth of the month, and a motion
to set aside the default was not made until the seventeenth day of the
same month, and no explanation was given for the delay in making the motion :
Held, that this court could not say there was any such abuse of discretion in
refusing the motion as to authorize a reversal of the judgment.
2. The setting aside of a judgment by default is a matter of discretion of
the court in which the default is entered, the exercise of which will not be
interfered with except when it appears such discretion has been abused.
Appeal from the Superior Court of Cook county; the
Hon. Joseph E. Gary, Judge, presiding.
Messrs. Stewart & Moss, for the appellant:
The theory of the law is, that when parties have shown
diligence in making their defence, but have failed because of
some accident, they should have an opportunity to try their
cause. It was unjust to allow the judgment to stand against
him when it clearly appeared that the transaction was differ-
ent from that into which appellant intended to embark.
Union Hide and Leather Co. v. Woodley, 75 111. 435.
Mr. John I. Bennett, for the appellee :
The law as to setting aside defaults in this State is well
settled to be —
1. That it is a discretionary power of the court which can
not be inquired into on appeal or writ of error.
37—94 III.
578 Andrews v. Campbell. [March
Opinion of the Court.
2. That a court will not necessarily set aside a default
even when there is diligence and defence shown.
3. That where either diligence or a defence is not shown the
court can not disturb a judgment by default. Garner et al.
v. Crenshaw, 1 Scam. 143 ; Wallace v. Jerome, id 523 ; Har-
rison v. Clark, id. 131; Woodruff v. Tyler, 5 Gilm. 457;
Gmnleaf v. Eoe, 17 111. 474; Cox v. Brachett, 41 id. 225;
Scale v. Labor, 51 id. 232 ; Fergus v. Garden City Mfg. Co.
71 id. 51 ; Edward v. McKay, 73 id. 570; Peoria and Rock
Island By. Co. v. Mitchell, 74 id. 394; Union Hide and
Leather Co. v. Woodley, 75 id. 435 ; Powell v. Clement, 78 id.
20 ; Constantine v. Wier, 83 id. 193.
Per Curiam: Campbell brought an action of assumpsit
against Andrews, to the May term, 1877, of the Superior
Court of Cook county. Summons was duly served, and on
the second day of the term (declaration and affidavit of claim
having been filed in apt time), the defendant failing to appear
or plead, his default was entered, damages assessed, and judg-
ment against him for $1724.99 and costs.
A few days after, at the same term, defendant appeared
and moved the court to set aside the default and permit him
to plead to the merits. This motion was overruled, and to
this ruling defendant excepted and appeals to this court.
The only error assigned is, that the court improperly denied
the motion.
On this motion defendant produced his own affidavit, that
he had a meritorious defence, and his own affidavit and that
of his attorney, that a few days before the beginning of the
term defendant employed an attorney to defend him in this
action, and that the attorney prepared a plea to the merits,
and defendant attached thereto his own affidavit verifying the
plea and setting out his defence; and that the attorney there-
upon placed the plea and affidavit in the hands of a young
man in his office, who usually attended to having his papers
filed, with directions to file them, and that the attorney sup-
1880.] Andrews v. Campbell. 579
Opinion of the Court.
posed the plea, and the affidavit of merits thereto attached,
had been placed on file until the day after the default was
entered.
On this showing of the defendant the Superior Court, per-
haps not improperly, might have allowed the motion, but the
setting aside of a default is a matter within the discretion of
the court in which the default is entered. The exercise of
that discretion will not be disturbed in an appellate court,
except in cases where it appears affirmatively that such dis-
cretion has been abused and injustice done.
It appears by the affidavit of defendant's attorney, that he
knew of the taking of the default on the tenth day of the
month, the default having been taken on the ninth, and the
motion to set aside the default was not made until the seven-
teenth day of the month. There is no explanation whatever
of the delay in making the motion. Such delay might have
occasioned the loss of a trial at that term had the motion
been granted, when it might have been otherwise had the
motion been made and allowed immediately upon the knowl-
edge of the default coming to the attorney. Such delay in
making the motion may have influenced the exercise of the
discretion of the court. We can not say there was here such
abuse of the discretion of the court that we should interfere
with its exercise.
The judgment will be affirmed.
Judgment affirmed.
580 English v. The People. [March
Opinion of the Court.
Joseph G. English
v.
The People of the State of Illinois.
Ottawa, March Term, 1880.
Appearance — by the Attorney General — in proceeding for delinquent taxes.
On error to reverse a judgment rendered in the county court for delinquent
taxes due to a city, and also for State and county taxes, where the Attorney
General enters his appearance, waiving service of process, but submitting to
the consideration of the court whether such waiver will give this court juris-
diction as affecting the city taxes, it was held, the appearance of the Attorney
General, in behalf the People, in respect to any of the interests involved in
the suit, was a good appearance as to the entire proceeding, thus obviating
the necessity of service of process for any purpose.
■$■
This was a proceeding, in the county court of Will county,
for judgment for delinquent taxes due to the city of Joliet,
and to the county and State. Judgment having been entered
for such taxes, the cause is brought to this court on error.
Mr. E. Meers, city attorney of the city of Joliet, entered
his motion, in behalf of the People, for a continuance, on the
ground that there had been no service of scire facias.
Mr. James K. Edsall, Attorney General, appeared, and
consented, in behalf of the People, that the cause should
stand as if process had been duly served, submitting to the
court, however, whether such waiver of service of process on
his part would give to this court jurisdiction as affecting the
taxes of the city of Joliet, involved in the proceeding.
Scott, J. : The entry of the appearance of the Attorney
General, in behalf of the People, and waiver of service of
process, will be regarded as an appearance in respect of all
the interests involved in the proceeding, and therefore as
obviating the necessity of any service of process. The mo-
tion for a continuance will be denied.
Continuance refused.
1880.] Bennett et al. v. The People. 581
Opinion of the Court.
Franklin Bennett et al.
v.
The People of the State of Illinois.
Ottawa, March Term, 1880.
Bail — after conviction — pending writ of error. This court will not admit a
prisoner to bail pending a writ of error to reverse a judgment of conviction
for larceny, unless it is very clear there can be no conviction upon another
trial.
Whit of Error to the Circuit Court of Will county.
Franklin Bennett, Frank Bennett and John Pierce were
indicted in the court below for larceny, and upon a trial were
found guilty, and were sentenced, respectively, to a term of
five, three and six years in the penitentiary.
A writ of error was sued out by the prisoners to reverse that
judgment, and thereupon a motion was entered in their be-
half, in this court, to admit them to bail pending the writ of
error, and to fix the bail of each of them.
Messrs. Haley & O'Donnell, for the plaintiffs in error.
Scott, J. : The prisoners are in custody, and under sen-
tence of the court. A motion is now made to admit to
bail. It has not been the practice of this court, after convic-
tion, to admit to bail, unless it is very clear there can be no
conviction upon another trial. Adhering to that rule as we
do, we see no cause in this case to depart from the uniform
practice. The petition will be denied.
Petition denied.
582 Smith et ml. v. Dennison. [March
Statement of the case.
A. P. Smith et al. Admrs.
v.
Franklin Dennison, Receiver, etc.
Ottawa, March Term, 1880.
Supersedeas bond by an administrator — as to character of liability to be
assumed. After the hearing of a cause in chancery, but before the entry of
any decree, the defendant died. By stipulation of counsel a decree was
entered nunc pro tunc, as of the date of the hearing, so as to appear to have
been rendered against the defendant in his lifetime. In suing out a writ of
error to reverse the decree, the administrator of the defendant executed a
supersedeas bond conditioned that in case of affirmance the decree should be
paid "in due course of administration." This was held sufficient. The
administrator was not bound to assume an absolute personal liability for the
payment of the decree against his intestate.
Writ of Error to the Appellate Court for the First
District.
This was a suit in chancery, commenced in the Superior
Court of Cook county, by Dennison, as receiver, against Wal-
lace. The cause was heard in that court on the 21st of
December, 1878. After the hearing, and before the entry of
any formal decree in the case, Wallace died. Subsequently,
on the 4th of January, 1879, upon stipulation of counsel, a
decree was entered against Wallace nunc pro tunc, as of the
date of the hearing. The decree was a money decree, and
there was an award of execution.
Upon appeal to the Appellate Court by the administrators
of Wallace, the decree was affirmed, and thereupon the admin-
istrators sued out this writ of error. The writ of error was
made a supersedeas, and the order allowing the supersedeas
directed the giving of a bond, to be " executed by Albert
Paul Smith and Frank R. Wallace, as principals, and by
Edward A. Small, as security, payable to said Dennison,
receiver, etc." Smith and Wallace, the principals in the pro-
posed supersedeas bond, were the administrators who sued
1880.] Smith et al. v. Dennison. 583
Opinion of the Court.
out this writ of error. They gave a bond conditioned that if
the decree of the Appellate Court should be affirmed, pay-
ment should be made by the administrators (e in due course
of administration."
The defendant in error, Dennison, now enters his motion
for a rule on plaintiffs in error to file herein a new super-
sedeas bond, with satisfactory sureties, to secure the payment
to defendant in error of the decree by him recovered, abso-
lutely, and not "in due course of administration," as by the
boud hereinbefore filed.
Mr. J. L. High, for the motion.
Messrs. Small & Moore, contra.
Per Curiam : The writ of error was sued out by the plain-
tiffs in error in their capacity as administrators. We see
nothing in the circumstances of this case that should take it
out of the rule that an administrator may, in all proper cases,
for the protection of the estate, take an appeal or sue out a
writ of error, and to that end may execute an appeal bond or
a supersedeas bond in his capacity as administrator, without
incurring any personal liability in respect to such bond. The
fact that this decree was entered in the Superior Court after
the death of Wallace, but as of a date prior thereto, can make
no difference. The administrators stood in the same relation
to the decree that they would if it had been entered against
them. In that case they would have been directed to make
payment in " due course of administration." They ought not
to be required to incur any larger liability in their efforts to
protect the estate by seeking the reversal of a decree which
appears to have been rendered against their intestate in his
lifetime. The condition of the bond, that in the event the
decree should be affirmed the plaintiffs in error would make
payment thereof "in due course of administration," is all that
can be required.
Motion denied.
584 Hatch v. Jacobson. [March
Statement of the case.
Reuben Hatch
v.
Augustus Jacobson, Receiver, etc.
Ottawa, March Term, 1880.
Release of errors — agreement to pay decree. In a suit in chancery, upon
presentation of the decree, which found the defendant liable to pay a certain
sum of money, the defendant moved to amend the decree by extending the
time for payment, agreeing to pay the money in case further time should be
given. The decree was amended accordingly, and so entered. It was held,
this agreement to pay the amount decreed against the defendant was not to
be considered so far voluntary on his part as to operate as a release of errors,
if any existed in the proceedings which resulted in the decree fixing his
liability.
Appeal from the Appellate Court for the First District.
This was a suit in chancery, brought in the circuit court
by Jacobson, as receiver of the Bank of Chicago, against
Hatch, as a shareholder in the bank. A decree was rendered
against Hatch for $10,000, which, on his appeal to the Appel-
late Court, was affirmed. He thereupon appealed to this
court.
The certificate of evidence recites that "upon the hearing
of this cause the said Hatch moved to amend the decree as
presented, by extending the time of the payment of the sum
therein found due, from ten to thirty days, and agreed in
open court, in case of such amendment, to pay the said sum
of $10,000 within said thirty days, under any decree protect-
ing said Hatch from suits at law for the same liability, and
thereupon the said amendment was made by the court."
The decree then entered gave to Hatch thirty days within
which to pay the money, and declared that this payment
" shall be full, final and complete discharge of all liability of
the said Hatch as shareholder or otherwise of the said Bank
of Chicago, to any and all creditors of said bank," — and that
upon Hatch paying this sum, certain specified creditors
1880.] Hatch v. Jacobson. 585
Opinion of the Court.
and "all other creditors of said bank shall be perpetually
enjoined from further prosecuting said Hatch upon his lia-
bility as such stockholder."
The appellee enters his motion to dismiss this appeal,
alleging that Hatch was estopped to appeal by reason of the
agreements by him made, as recited, and the performance of
the conditions upon which he made the agreements.
Messrs. Mattocks & Mason, for the motion.
Ceaig, J.: The substance of the agreement made by Hatch
was, that if the time for the payment of the money for which
the decree found him liable, should be extended, he would
pay the amount. He did not agree to waive any error that
might have intervened in the proceeding which resulted in
that decree; — nor should the agreement to make payment be
regarded as so far voluntary as to operate as a release of errors,
if any existed. The case of Richeson v. Ryan, 14 111. 74, is
quite analogous to this. In that case Ryan recovered a judg-
ment against Richeson. The latter paid the judgment before
an execution issued, and then sued out a writ of error to re-
verse it. The defendant in error pleaded a release .of errors,
alleging that Richeson had voluntarily paid the judgment
against him. In sustaining a demurrer to the plea, the court
said: " If the judgment had been collected by execution,
there would not be a doubt of the right of Richeson to prose-
cute the writ of error. A payment made under such circum-
stances would be compulsory, and would not preclude him
from afterwards reversing the judgment, if erroneous, and
then maintaining an action to recover back the amount paid.
The payment in question must equally be considered as made
under legal compulsion. The judgment fixed the liability of
Richeson, and the could only avoid payment by procuring its
reversal. He was not bound to wait until payment should
be demanded by the sheriff. He was at liberty to pay off the
judgment at once and thereby prevent the accumulation of
interest and costs. By so doing he did not waive his right to
586 Preston et al. v. Gahl. [March
Opinion of the Court.
remove the record into this court for the purpose of having
the validity of the proceedings tested and determined."
That case was even stronger than the one at bar. Here
was a mere promise to pay, which, so far as appears, has not
been complied with. There, payment was actually made.
The appellant is not estopped by reason of anything con-
tained in his agreement to pay the amount of the decree, from
alleging error in respect thereto. The motion to dismiss the
appeal is denied.
Motion denied.
David Preston et al.
v.
Frederick Gahl.
Ottawa, March Term, 1880.
Appeal from Appellate Court — in forcible detainer. In an action of
forcible detainer, which does not involve a franchise, a freehold or the
validity of a, statute, and in which the amount involved does not exceed
$1000, an appeal will not lie from the Appellate Court to this court, there
being no question of law certified from the Appellate Court.
Appeal from the Appellate Court for the Second District.
This was an action of forcible detainer. Mr. Thos. P.
Bonfield, for the appellee, moved to dismiss the appeal upon
the ground that there was no question of law certified from
the Appellate Court, there being no other matter involved
which could give the right of appeal to this court.
Scholfield, J. : The case does not involve a franchise, a
freehold, or the validity of a statute, — nor does the amount
involved exceed $1000, so, in the absence of any question of
law being certified from the Appellate Court, there is no right
of appeal to this court. The appeal will be dismissed.
Appeal dismissed.
1880.] The People ex rel. v. Loomis. 587
Opinion of the Court.
The People ex rel. Kirchner
v.
Mason B. Loomis, County Judge.
Ottawa, March Term, 1880.
Mandamus — practice in the Supreme Court. A motion was made in this
court for an order to show cause why a peremptory writ of mandamus should
not issue to compel a county judge to sign a bill of exceptions. The motion
was based merely upon an affidavit of one of the attorneys in the case, and
the bill of exceptions which the judge had refused to sign. The motion was
denied upon the ground that; according to the practice in this court, a petition
should have been presented showing the grounds of the application. Such a
writ can not be awarded upon mere motion.
This was a motion in behalf of Kirchner, in this court, for
an order that Mason B. Loomis, county judge of the county
of Cook, show cause why he should not be compelled to sign
a certain bill of exceptions which had been tendered to him
for that purpose, and which he had refused to sign, — and why
a peremptory writ of mandamus should not issue to compel
him to sign the same. In support of the motion an affidavit
of one of the counsel, and the bill of exceptions which had
been tendered to the county judge, were filed.
Messrs. Fairchild & Blackman, and Messrs. Brush &
Lelakd, for the motion.
Craig, J. : This is an application to this court to award
a writ of mandamus to compel a judge to sign a bill of ex-
ceptions. The application is based upon a mere motion. ISTo
petition has been filed, — nothing but a statement. That is not
sufficient. The practice in this court has always been to re-
quire a petition to be filed, setting forth the grounds of the
application. We will not consider the application upon mere
motion.
Motion denied.
588 Garrick et ah v. Chamberlain. [March
Opinion of the Court.
John Garrick et al.
v.
Angie P. Chamberlain.
Ottawa, March Term, 1880.
Transcript of record — matters in evidence not embodied in the bill of excep-
tions. Where a bill of exceptions makes reference to certain matters as having
been given in evidence, and directs, in parenthesis: ("Here insert" certain
specified sections of the statute of another State), it is proper for the clerk,
in making up a transcript of the record, to incorporate therein the matter so
designated.
This is an appeal from an Appellate court, the original
transcript from the trial court being filed in this court. The
appellants move the court to strike out of the record certain
portions thereof which the clerk of the trial court has certi-
fied were read in evidence therein, consisting of certain sec-
tions from the statute book of the State of Ohio, with no
warrant therefor other than a direction in the original bill of
exceptions, as follows:. "(Here insert §§ , Swan's Stat.
O. 1854.)"
Dickey, J. : This is an appeal from the decision of the
Appellate Court. Motion is made here, on suggestions in the
record, to expunge from the transcript certain matters alleged
not to be properly a part of the record. Part of the matter
consisted of a copy of the Statutes of Ohio, and the judge
who tried the case says that such statutes were offered and
admitted as follows, and then in parenthesis: ("Here insert
in the original bill of exceptions"), but they are not in here.
They are not in the original bill of exceptions; they are
transcribed in full in the record. That has been the practice
for more than forty years, where bills of exceptions refer to
matters which can be identified. We see nothing wrong
about it. The motion must be denied.
Motion denied.
1880.] Cassady v. Teustees of Schools. 589
Opinion of the Court.
Fkancts Cassady
v.
Trustees of Schools.
Ottawa, March Term, 1880.
Costs — as against school trustees. Upon the reversal of a judgment recov-
ered by school trustees in a suit upon the official bond of a township treasurer,
no costs should be awarded against the trustees. Under the statute, where
school trustees prosecute or defend in their official capacity, they are not liable
for costs.
This was a writ of error to the Appellate Court for the
Second District.
An action of debt was instituted in the circuit court by
the trustees of schools against Cassady, as a security upon the
official bond of a township treasurer. Upon a trial in the
circuit court judgment was recovered by the plaintiffs, and on
appeal by defendant to the Appellate Court that judgment
was affirmed. Cassady, the defendant, thereupon sued out
this writ of error. Upon the hearing in this court the judg-
ment of the Appellate Court was reversed and the cause
remanded, and judgment for costs was entered against the
school trustees. A motion is now made in behalf of the
trustees to vacate the judgment for costs against them, and to
direct a remanding order to issue without payment of costs.
Messrs. Hill & Dibell, for the motion.
Mr. Geokge S. House, contra.
Scott, J. : The judgment in this case was entered in vaca-
tion. It is in the power of the court any time within six
months to change the judgment. We are of opinion the mo-
tion ought to be allowed. Under the statute there can be no
costs adjudged against the trustees of schools where they
prosecute in their official capacity. There is nothing in this
case to show but what they have prosecuted in good faith.
590 Gage v. Busse et al. [March
Statement of the case.
*
There could, therefore, be no reason for adjudging costs
against them personally, if such a thing was even authorized
by the statute. But they prosecuted here in their official
capacity, and under the statute they are not liable for costs.
The judgment as there inadvertently entered against them
will be set aside, and a remanding order may go, with our
opinion, without costs.
Motion allowed.
Henry H. Gage
v.
Christian C. Busse et al.
Ottawa, March Term, 1880.
1. Appeals direct to the Supreme Court — -from the trial court. Under the
Practice act, as amended by the act of 1879, in all cases where a freehold is
involved in the litigation, whether the suit be at law or in chancery, an
appeal will lie directly from the trial court to this court.
2. Same — and herein, whether a freehold is involved. Upon bill in chancery
to remove a cloud upon the title to land, the alleged cloud consisting of certi-
ficates of sales of land for taxes, there is no freehold involved so as to give
this court jurisdiction of an appeal direct from the trial court.
Appeal from the Superior Court of Cook county.
This was a suit in chancery, instituted in the court below
by Busse and Sturtevant against Gage, to remove a cloud
upon title, consisting of certain certificates of sales of land for
taxes held by Gage. The court below granted the relief
sought by the bill, and the defendant thereupon appealed
directly to this court.
The appellees now move the court to dismiss the appeal,
on the ground that the case does not come within any of the
classes in which an appeal is allowed to be taken from the
trial court to this court, but that it should have been taken
to the Appellate Court.
1880.] Gage v. Busse et ah 591.
Brief for the Appellant.
Messrs. Mattocks & Mason, for the motion:
The direct appeal to this court can not be sustained except
upon the ground that a freehold is involved in the litigation.
There is no freehold involved in this suit.
The case of Akin et al. v. Lloyd, 28 111. 331, decides that a
bill to remove a cloud is not a suit affecting real estate. The
code of chancery practice then in force required that suits
which "may affect real estate," should be brought in the
county "where the same is situated." Complainants, living in
Bureau county, filed a bill to remove a cloud upon the title to
to real estate situated in Bureau county. Defendant Lloyd
pleaded in abatement that he was a resident of Marshall county.
The plea was sustained and the suit dismissed. The Supreme
Court affirmed the decree.
The case at bar is far stronger. The record shows that the
bill was filed, and the defendants brought into court before
the time of redemption from the tax sale had expired. The
thing to be determined is the respective rights of the parties
at that time. There was then no possible dispute between
them as to any freehold. Gage claimed that they ought to
pay him the face of certain taxes, with 50 per cent interest
per annum, or 100 per cent in all. They claimed to be entitled
to a cancellation of the certificates upon the payment of their
face, with 6 per cent per annum, or about 11 per cent
in all. The question was, then, simply this: Shall Busse
and others pay Gage a penalty of 89 per cent in addition to
legal interest, or not? The whole controversy is measured
by this 89 per cent, and relates only to it. There is no
question of freehold here. Gage does not claim to own the
land. When the bill was filed he had no deed; the time for
applying for a deed had not come ; he has no deed now.
It is evident, then, that the appeal has been prayed and
allowed in error, and that it should be dismissed.
592 Gage v. Busse et at [March
Brief for the Appellee.
Mr. Augustus N. Gage, and Mr. Martin E. M. Wal-
lace, contra:
This litigation, as we contend, involves a freehold, and in
such case, under existing legislation, the appeal lies directly
to this court.
It is said that a freehold is not involved in this case,
because at the time the bill was filed appellant only held a
certificate of purchase at a tax sale, and no deed had been, nor
has any deed since been issued; so that the only question in
issue is, shall appellees pay appellant " eighty-nine per cent in
addition to legal interest, and relates only to it."
An examination of the pleadings in this record will show
that the title to the lots described in the bill is directly put
in issue.
At the time appellant filed his answer he was entitled to a
deed for the lots, and so alleges in his answer, and makes the
proper allegations in his answer to show his right to have a
deed issued to him, and the proof clearly shows that he is
entitled to the deed.
An injunction was granted restraining appellant from
taking his deed, without which appellant would now be in
possession of the legal title to the lots. And if the questions
raised by the bill regarding the validity of some portion of
the city tax should be held against appellees, then appellant
will be entitled to have the injunction dissolved and a deed
issued to him, thus vesting him with a legal title to the lots.
And if the issue should be found against appellant, or the
judgment of the court below sustained, then appellant is con-
cluded from asserting his title to the lots in any subsequent pro-
ceeding. And on the contrary, if the issues are found in favor
of appellant, appellees will be forever concluded from
asserting their title in any subsequent proceeding.
If this is so, then a freehold is involved, and the direct
appeal to this court was not granted in error, and the appeal
should not be dismissed.
1880.] Meacham v. Steele et al. 593
Opinion of the Court.
Scott, J.: The disposition of the motion involves a con-
struction of the recent Practice act of 1879. We are all of
opinion that where a freehold is involved in litigation,
the appeal, whether the action is at law, or in chancery, may
be taken directly into this court; but a majority of the court
are of opinion that in this case no freehold is involved, and
for that reason the appeal is dismissed.
Appeal dismissed.
Dickey, J. : I think in this case there is a freehold
involved. Before the answer was filed the time of redemp-
tion from these tax certificates had passed. The defendant
came in, and in the answer asserted his right to have a deed,
or right to the title of the property, and the decree denied
that right. It is the defendant who brings the appeal, and it
therefore seems to me the freehold was involved.
Sheldon, J. : I concur in the suggestions of Mr. Justice
Dickey.
Augusta Meacham
v.
Henry T. Steele et al.
Filed at Ottawa. March 24, 1880.
Costs — as to original transcript of record from a trial court to an Appellate
court On an appeal from an Appellate court to this court, the fees of the
clerk of the trial court, in the making of the transcript of the record upon
which the case is taken to the Appellate court, are properly taxable as costs
in the latter court, not in this court.
This was a motion in this court for the re-taxation of the
costs.
Per Curiam: This cause came to this court on appeal from
an Appellate Court. The judgment of the trial court was
affirmed in the Appellate Court, and upon appeal to this court
38—94 III.
594 Meacham v. Steele et ah [March
Opinion of the Court.
that judgment of affirmance has been reversed and the cause
remanded to the Appellate Court. It was also considered by
this court that the costs occasioned by reason of this appeal
should be borne equally between the parties. In the taxation
of those costs the clerk of this court included therein the fee
for making the original transcript of the record brought from
the trial court to the Appellate Court. This was improper.
The 88th section of the Practice Act, as amended by the
act of June 3, 1879, (Sess. Acts, 222,) provides: "In all cases
of writs of error and appeals prosecuted or taken from any
decision of any of the appellate courts to the Supreme Court, it
shall not be necessary for the clerk of the appellate court in
which said cause was heard and determined, to make out and
certify a copy of the original transcript of the record filed in
the said appellate court, but it shall be sufficient for, and it is
hereby made the duty of, the clerk of said appellate court to
transmit the original transcript of the record filed in his office,
with his official certificate and seal of office authenticating the
same, with a true and perfect copy of all the orders aud pro-
ceedings appearing of record in said cause; which said copy
of the record and proceedings, duly authenticated with the
seal of said court, shall be transmitted to, and filed in the
Supreme Court, and the clerk of the appellate court shall be
entitled to receive from the party procuring said record and
transcript, the fees allowed by law for his certificate and copy
of the proceedings had in the appellate court, and he shall
not be entitled to charge or receive any fee for copying or
transmitting said original transcript, other than for his certi-
ficate, and the reasonable cost of sending said transcript and
record from his office, either by mail or by express, to the
clerk of the Supreme Court. "
The evident purpose of that section is, that on appeals from
the appellate courts to this court, or on writs of error from
this court to an appellate court, no costs shall accrue in respect
of such appeals or writs of error on account of the original
transcript of the record upon which the cause was removed
1880.] Meacham v. Steele et oL 595
Opinion of the Court.
into the appellate court, except merely for the certificate
of the clerk of that court authenticating such transcript,
and the cost of transmitting the same to this court. The
costs of making that original transcript are costs attend-
ing the appeal to the appellate court, and are there properly
taxable, and not elsewhere. If the cause had been brought
directly here from the trial court, then of course the cost of
the transcript would have been properly regarded as embraced
in the costs of this court. But the statute expressly forbids
that any fee shall be allowed to the clerk of the appellate
court, on appeal or error from that court, for copying or trans-
mitting the original transcript, except for his certificate of
authentication and the expense of transmission.
The costs of each court are properly taxable in that court,
and in that court alone. The clerk of the appellate court
will be entitled to his fee for any transcript he may have
made of the record of proceedings had in that court, and that
will be considered as costs in this court, and properly taxable
here.
On the remandment of this cause to the appellate court, and
the reversal in that court of the judgment of the trial court,
the appellant there will recover his costs "by him in that
behalf expended," among which will be included the cost of
the original transcript.
The clerk of this court will reform his taxation of costs in
accordance with this opinion.
Motion allowed.
596 Walker et ux. v. Malin & Co. [May
Statement of the case.
Harry Walker et ux.
v.
Ira Malin & Co.
Mt. Vernon, May Term, 1880.
Appeal from an appellate court — as to the amount involved. Where a cred-
itor's bill is filed to subject certain personal property to the payment of a
judgment, in determining the question of the jurisdiction of this court as
affected by the amount involved in the litigation, that amount is to be meas-
ured by the amount of the judgment which is to be satisfied, without regard
to the value of the property sought to be subjected, although the value of such
property may largely exceed the amount of the judgment.
At the April term, 1874, of the circuit court of Alexander
county, Ira Malin & Co. recovered a judgment against Harry
Walker for the sum of $367.20, and costs. Subsequently an
execution was issued upon that judgment, which was returned
no property found. Thereupon, Malin & Co. filed a creditor's
bill against Harry Walker and Margaret Walker, his wife, to
subject certain personal property to the satisfaction of said
judgment, it being alleged in the bill that the property men-
tioned was claimed by said Harry Walker, and Margaret, his
wife, to belong to said Margaret, whereas, in truth and in
fact, it was in equity the property of said Harry and subject
to the payment of his debts, but was so situated and confused
that it could not be reached by the ordinary legal process.
The value of the property thus sought to be subjected was
alleged to be at least $3000. Upon final hearing in the
circuit court it was found that the property was subject to
complainants' judgment, and a decree was entered accordingly.
The amount of the judgment, and interest, to be satisfied was
ascertained to be $492.80.
On appeal from the circuit court to the Appellate Court
for the Fourth District that decree was affirmed, — and now
an appeal is prosecuted to this court for a review of the
decision of the Appellate Court.
1880.J Walker et ux. v. Malin & Co. 597
Opinion of the Court.
The appellees here, Malm & Co., move to dismiss the appeal
for want of jurisdiction in this court, it appearing, as is
alleged, that the amount involved in the litigation was less
than $1000, and no other conditions existing to authorize the
appeal.
Mr. Samuel P. Wheeler, for the motion, contended the
amount involved in the litigation was not to be measured by
the value of the property sought to be subjected to the pay-
ment of the judgment, but the amount of the judgment to be
satisfied was the actual amount involved, — and that was
found by the decree to be only $492.80. So that, if it be con-
ceded that, for the purposes of this motion, the value of the
property sufficiently appears from the allegations in the bill,
yet the amount involved being less than $1000 this court has
no jurisdiction of the appeal.
Messrs. Linegar & Lansden, contra, argued that the
amount actually involved in the litigation was the entire
value of the property, which largely exceeded $1000. Coun-
sel insisted that an adjudication as to the title to this property
involved the entire property, regardless of the amount of the
judgment to be satisfied in this particular suit, — that such
adjudication would be conclusive between the same parties in
any subsequent proceeding of like character.
Scott, J. : The amount involved in this litigation is clearly
to be measured by the sum required to satisfy the judgment,
not by the value of the property sought to be subjected to its
payment.
Upon bill to foreclose a mortgage given to secure the pay-
ment of a given sum of money, the amount involved would be
the amount required to satisfy the mortgage indebtedness, not
the value of the mortgaged premises, which might very largely
exceed that indebtedness, and yet only the amount of the in-
debtedness could be required to be satisfied. So in this case,
only the amount of the judgment can be required to be paid
598 Eagle Packet Co. v. Defries. [May
Syllabus.
out of the property, whatever its value. A payment of the
judgment would relieve the property entirely from any claim
of the judgment creditor.
The amount of the judgment to be satisfied is less than
$1000, being only $492.80, and that being the amount in-
volved in the litigation, this court has no jurisdiction of this
appeal.
Appeal dismissed.
The Eagle Packet Company
v.
Mary Agnes Defries.
Filed at Mt. Vernon, May 14, 1880.
1. Negligence — landing of passengers from a steamboat. Where a steam-
boat is landing at a wharf for the purpose of enabling passengers to go
ashore, it is the duty of the proper officers of the boat to provide means for
the safe transit of those who wish to leave the boat, — and the fact that a
stage plank, placed for the use of passengers in landing, fell while a passen-
ger, in the exercise of due care, was walking over it, is prima facie evidence
of negligence on the part of the officers of the boat in the performance of that
duty, and, in an action by the passenger to recover for an injury caused by
the falling of the plank, the burden is upon the defendant to show the falling
of the plank was not the result of negligence on the part of the officers of
the boat.
2. Although it may appear that the end of the boat was moved around by
the wind, and that this caused the falling of the stage plank, yet, it not being
shown that the boat was fastened to the wharf in any way, or that it could
not have been fastened so as to have prevented it from being moved by the
wind, there would not appear to have been due care on the part of the officers
of the boat to discharge it from liability.
3. Release — whether properly obtained, so as to be binding. In an action
against a carrier of passengers to recover for personal injuries received by
the plaintiff, occasioned by the alleged negligence of the defendant, there was
interposed as a defence a paper executed by the plain tin*, purporting to be a
release of the cause of action. It appeared the plaintiff was an illiterate
woman, unable to read or write, and the paper was obtained from her during
1880.] Eagle Packet Co. v. Defries. 599
Statement of the case.
her illness consequent upon the injury, by the physician who was attending
her, in the absence of any of her friends to whom she could look for' advice, —
the physician explaining to her that the servants of the defendant had ex-
pended the sum of money named in the paper for her benefit, and wanted
something to show what the money had been expended for, and this was all
the explanation he made. In view of these facts, and especially the fact that
the receipt or release was procured by the attending physician, it was held it
could not properly be considered as binding upon the plaintiff.
4. Instruction — whether justified by the pleadings. In an action to recover
for personal injuries occasioned by the alleged negligence of the defendant, it
was averred in the declaration, in respect to the character of the injury re-
ceived, that the plaintiff " then and there became and was sick, lame and dis-
ordered, and so remained for a long time, to-wit, hitherto," etc. This was a
sufficient averment to authorize an instruction to the effect that the jury might
award to the plaintiff damages for such permanent injury as the evidence
showed she had sustained, the question of the permanency of the injury being
one resting on the evidence and which need not be averred in the declaration.
5. Evidence — as to pecuniary circumstances of the plaintiff . In an action on
the case to recover for an injury occasioned by the negligence of the defend-
ant, the latter offered to prove what were the pecuniary circumstances of the
plaintiff, but it was held such evidence was not admissible.
Appeal, from the Circuit Court of Jersey county; the
Hon. Cyrus Epeer, Judge, presiding.
This was an action on the case, brought by appellee against
appellant, to recover damages for injuries sustained by her
whilst a passenger on one of appellant's steamboats. The
declaration alleged that appellee became a passenger on ap-
pellant's steamboat Spread Eagle, to be carried from St. Louis
to Grafton, and that it was the duty of the defendant, upon
the arrival of said steamboat at Grafton, to give the plaintiff
an opportunity of safely alighting therefrom, and then and
there to secure said steamboat to the wharf and to place
proper and suitable stage-planks or gangways from said
steamboat to the wharf, and to have said stage-planks or
gangways properly secured to enable the plaintiff to walk
safely from the said steamboat to the wharf; yet the defendant
did not regard its duty in that behalf, but, on the contrary,
on the arrival of the steamboat at Grafton, and while the
600 Eagle Packet Co. v. Defeies. [May
Statement of the case.
plaintiff, with all due care and diligence, was walking from
the steamboat to the wharf upon the stage-plank or gangway-
provided by the defendant, said stage-plank or gangway, by,
through and in consequence of the negligence of the defend-
ant, fell from the said steamboat and upon the plaintiff, by
means whereof the plaintiff's leg and other parts of her body
were greatly bruised, hurt and wounded, whereby the plaintiff
was obliged to and did lay out large sums of money in and
about endeavoring to be cured, and also the plaintiff then and
there became and was sick, lame and disordered, and so re-
mained for a long time, to-wit, hitherto, during all which
time the plaintiff suffered great pain, etc.
To this declaration the defendant pleaded the general issue
and a special plea of release, upon which issues were joined
and a trial had, resulting in a verdict and judgment for the
plaintiff for the sum of $800, from which judgment this
appeal was prosecuted.
The evidence introduced by the plaintiff tended to show
the following facts: On April 15, 1875, plaintiff embarked on
the Spread Eagle at St. Louis, bound for Grafton. Upon
paying her fare and securing her ticket, she went to the room
of the stewardess and sat down to take a smoke, wjiere she
remained until the arrival of the boat at Grafton, which was
after dark. She did not leave the boat with the other pas-
sengers, as she was not aware the boat had arrived until
informed thereof by the stewardess, when she at once started
up. She gave her ticket to the steward and started to leave
the boat, carrying with her a large basket without being
offered any assistance by the steward or any one else. One of
the deck hands crossed the stage-plank just before her. While
she was crossing, the stage-plank fell with her, from which
she received a severe injury to her leg, which still caused her
pain at the time of the trial. On the 19th of April, 1875,
the plaintiff signed a receipt releasing the defendant from all
liability in consideration of the sum of $40, but she could
1880.] Eagle Packet Co. v. Defeies. 601
Opinion of the Court.
neither read nor write, nor did she understand the nature and
effect of the paper she was signing.
The evidence introduced by the defendant tended to show
that the falling of the stage-plank was caused by the wind
blowing the boat around. It also tended to show that the
receipt executed by the plaintiff was procured by the physi-
cian whom the defendant had employed to attend the plaintiff;
that she understood what the paper was when she signed it,
and that the physician explained to her that the agents of the
company had expended the money for her benefit, and wanted
something to show the company what the money had been
expended for.
The court gave ten instructions on behalf of the plaintiff,
refused two requested by defendant and gave six of its own
motion. The assignments of error call in question the rulings
of the court below in the giving and refusing of instructions,
the admission and exclusion of evidence, and in overruling
the motion for a new trial.
Mr. Morris A. Locke, and Messrs. Dummer, Brown &
Russell, for the appellant.
Messrs. Snedeker & Hamilton, for the appellee.
Mr. Justice Dickey delivered the opinion of the Court:
From a careful examination of the evidence, we are satis-
fied the plaintiff was entitled to a verdict in her favor. There
is nothing in the record tending to prove a want of ordinary
care on her part, which could have contributed to her injury.
It is, however, insisted there is an entire absence of proof of
negligence on the part of defendant. This view of the case
results from a misapprehension of the legal effect of the evi-
dence introduced by the plaintiff. It was clearly the duty of
defendant to provide means by which plaintiff could safely go
from the boat to the wharf; and the fact that the stage-plank
used for that purpose fell whilst plaintiff, in the exercise of
602 Eagle Packet Co. v. Defkies. [May
Opinion of the Court.
due care, was walking over it, is prima facie evidence of neg-
ligence on the part of the defendant in the performance of
that duty, and casts upon the defendant the burden of proving
the falling of the plank was the result of an accident for
which defendant was not responsible. This position is sus-
tained by the ruling of this court in Pittsburg, Cincinnati
and St. Louis Railway Co. v. Thompson, 56 111. 138, and of
the Supreme Court of the United States in Railroad Co. v.
Pollard, 22 Wall. 342, and in Stokes v. Saltonstall, 13 Peters,
181. In the last named case it is held that the upsetting of
a stage coach, by which a passenger is injured, is prima facie
evidence of negligence on the part of the driver, and casts
upon the proprietor the burden of showing the driver was in
every respect qualified, and acted with reasonable skill and
the utmost caution.
When, therefore, in the case at bar, it is shown the plain-
tiff has been injured by the falling of the stage-plank, the
burden is cast upon the defendant to show this was caused by
an accident which, by the exercise of ordinary care on the
part of defendant's servants, could not have been avoided.
It is true, the evidence tends to show the end of the boat was
moved around by the wind, and this caused the stage-plank
to fall ; but it does not appear the boat was fastened to the
wharf in any way, or that it could not have been so fastened
as to have prevented its being moved by the wind. The evi-
dence wholly fails to establish ordinary care on the part of
the defendant to prevent the falling of the stage-plank.
The jury properly found the plea of release was not sus-
tained. The evidence shows that plaintiff, at the time of the
execution of the receipt, was an illiterate woman, unable to
read or write, and that it was obtained from her during her
illness consequent upon her injury, and by the physician em-
ployed by defendant to attend her, and in the absence of any
of her friends to whom she could look for advice. The phy-
sician explained to her that the officers of the company had
expended the amount of money named in the receipt for her
1880.] Eagle Packet Co. v. Defries. 603
Opinion of the Court.
benefit, and wanted something to show the company what the
money had been expended for, and this was all the explana-
tion he made. Taking into consideration all these facts, and
especially the fact that the receipt was obtained by the attend-
ing physician, we are of opinion it can not be held binding *
upon her.
Inasmuch as, upon the evidence, the jury would not have
been justified in rendering a verdict for the defendant, it is
only necessary for us to consider such of the alleged erroneous
rulings of the court below as may have affected the amount
of the damages awarded the plaintiff. The only rulings of
this character of which complaint is made, are the giving by
the court below of the plaintiff's third, fifth and seventh
instructions, and the refusal to permit defendant to introduce
evidence as to the pecuniary circumstances of plaintiff.
It is insisted that, as the declaration did not allege plaintiff
had suffered a permanent injury, it was error to give the third
and seventh instructions, which authorized the jury to award
the plaintiff damages for such permanent injury as the evi-
dence showed she had sustained. This position is untenable.
The declaration expressly alleges that the plaintiff "then and
there became and was sick, lame and disordered, and so re-
mained for a long time, to-wit: hitherto," etc. The perma-
nency of plaintiff's injury was merely evidence to be considered
by the jury in determining the severity of the plaintiff's sick-
ness, lameness and disorder, and the rules of pleading do not
require the plaintiff to set forth in his declaration the evi-
dence upon which he relies.
The objection made to the fifth instruction is, that it author-
ized the awarding of exemplary damages if the evidence
showed wilful negligence on the part of the defendant, and
that there was no evidence on which to base the instruction.
Conceding this instruction should not have been given, still,
the damages awarded the plaintiff are not so large as to justify
us in the belief the jury gave any exemplary damages, and
604 "White v. The People ex rel. [May
Syllabus.
we would not reverse the judgment for this error, which did
no harm.
It is also insisted the court below erred in refusing to admit
evidence offered by the defendant as to the pecuniary circum-
stances of the plaintiff. We know of no rule of law, and
have been referred to none by counsel, holding that in an
action of this character it is competent to show the financial
standing of the plaintiff. The mere fact that plaintiff in this
case made some statements, without objection by defendant,
as to her pecuniary circumstances, does not require the court,
upon the application of defendant, to try immaterial issues.
There is no substantial error in this record, and the judg-
ment of the court below must therefore be affirmed.
Judgment affirmed.
John L. White
v.
The People ex rel. City of Bloomington.
Filed at Springfield, May 17, 1880.
1. Constitutional law — taking private property for public use. The con-
stitutional limitation that private property shall not be taken for public use
without just compensation, to be ascertained by jury when not made by the
State, has reference only to the exercise of the power of eminent domain, and
nG\ to special taxation of contiguous property for the building of a sidewalk
or other public improvement by cities, towns and villages.
2. Same — special taxation by cities for local improvements. The general
requirement in sec. 1, art. 9, of the present constitution requiring taxation to
be by valuation, so that every person and corporation shall pay a tax in pro-
portion to his, her or its property, is modified by sec. 9 of the same article, so
that the corporate authorities of cities, towns and villages may make local
improvements by special taxation of contiguous property or otherwise, and
does not apply in such case.
3. Municipal corporations — sideivalks by special taxation. The constitu-
tion of 1870 has authorized the legislature to vest the corporate authorities
of cities, towns and villages with power to make local improvements by^special
1880.] White v. The People ex rel. 605
Brief for the Appellant.
assessment, or by special taxation of contiguous property, or otherwise, and
this justifies an enactment whereby a town lot may be made chargeable Avith
the entire expense of the construction, of a sidewalk in front thereof. There
is no limitation in this regard in respect of equality and uniformity, in the
constitution of 1870, as in that of 1848.
4. Same — special tax for sidewalk may exceed benefits. Whether or not a
special tax on contiguous property in a city or town for a local improvement,
as, a sidewalk fronting the same, exceeds the actual benefit to the lots taxed,
is not material. It may be supposed to be based on a presumed equivalent,
aud where the corporate authorities determine the frontage to be the proper
measure of probable benefits, this can not be disputed or disproved.
5. A statute investing the corporate authorities of cities, towns and villages
with power to tax contiguous property for the expense of constructing side-
walks, leaving it to them as they may think just and equitable to determine
whether the former mode by general taxation, or special assessment, shall be
pursued, or whether there shall be special taxation of contiguous property,
either by a levy on the property of the cost of making the sidewalk in front
of it, or by a levy of the tax in pi'oportion to its value, frontage or superficial
area, is not unconstitutional, but is a valid law.
6. Former decisions. The cases of the City of Chicago v. Lamed, 34 111.
203, and the City of Ottawa v. Spencer, 40 id. 211, holding a special assessment
for local improvements on the basis of the frontage of lots on the streets to be
improved, were invalid, were made under the peculiar limitations of the con-
stitution of 1848, which are omitted in that of 1870, and hence these cases are
no longer authority on the subject.
Appeal from the County Court of McLean county ; the
Hon. Reuben M. Benjamin, Judge, presiding.
Messrs. Bloomfield & Hughes, for the appellant :
The law under which the ordinance was passed is unconsti-
tutional, as taking private property for public use without
just compensation. If the assessment is for local improve-
ments it must be limited to the compensation made by
benefits. Gridley v. City of Bloomington, 88 111. 557.
There is no greater obligation on the part of lot owners
to build sidewalks in front of their property than to pave the
street for at least half its width. (City of Ottawa v. Spencer,
40 111. 211.) If, therefore, a property owner can be compelled
to pay for a sidewalk in front of his premises, according to
frontage, irrespective of benefits, it logically and necessarily
606 White v. The People ex rel. [May
Brief for the Appellee.
follows that a city may construct valuable and lasting pave-
ments, costing any reasonable amount, suitable to the size of
the place and location of the street, and compel abutting
property owners to pay therefor according to frontage, without
regard to benefits, and the same principle may be applied to
the construction of adjacent water works, sewers, viaducts,
tunnels, etc., and thus confiscate contiguous property.
Assessments exceeding benefits are void. The true con-
struction of the constitution limits all special assessments to
the amount of benefits. Sec. 9, art. 9, of the constitution is
not to be considered as a grant of power to the legislature,
but only a withdrawal of limitation that all taxation must be
uniform as to value, leaving the legislature at liberty to
frame laws for assessing, as we think, to the limit of benefits
by value, frontage or area or any other fixed standard, but
that did not remove the limitation that compensation should
be made.
Mr. B. D. Lucas, for the appellee :
Contended that the tax which might be assessed was not
limited to benefits (Rev. Stat. 1877, p. 245), and that the act
of the legislature is not unconstitutional, in support of which
was cited Sec. 9, Art. 9, Const, of 1870; Chicago R. R. Co.
v. Smith, 62 111. 268; People v. Wall, 88 id. 75; Mason v.
Wait, 4 Scam. 127; People ex rel. v. Reynolds, 5 Gilm. 1;
Bank of the Republic v. Hamilton County, 21 111. 61 ; People
v. Worthington, 21 id. 174; Firemen/ s Benevolent Association
v. Lounsbury, 21 id. 513; Pennsylvania Railroad Co. v.
Smith, 62 id. 268; Twitchell v. Blodgett, 13 Mich. 152; Cooley
Const. Lim. 8.
The limitation in respect to taking private property for
public use has reference solely to the power of eminent
domain. People v. Mayor, 4 Conn. 419; Allen v. Drew, 44
Vt. 175; Warren v. Henley, 31 Iowa, 31.
Similar laws have been upheld, and frontage made the
sole, absolute and only rule of determining the amount of the
1880.] White v. The People ex rel 607
Opinion of the Court.
tax. Warren v. Henley, 31 Iowa, 31 ; McGonigh v.. City of
Alleghany, 44 Pa. 118; Strond v. City of Philadelphia, 61 id.
257 ; Ligler v. Fuller, 34 N. J. 228 ; Neenan v. Smith, 50
Mo. 526; Parker v. Chollis, 9 Kansas, 160; JU£en v. Drew,
44 Yt. 184; Morrison v. Hershie, 32 Iowa, 271 ; /Sfc. Zoiws v.
Clement, 49 Mo. 552; Bradley v. McAtee, 7 Bush, 667; jVeio
Albany v. Cook, 29 Lid. 220; ^pnri v. Kunlde, 5 Ohio St.
520; Mayor, etc. v. Hughes, 1 Gill and J. 492; Northern
Indiana Railroad Co. v. Connelly, 10 Ohio St. 159; 0% o/
Covington v. -So^, 6 Bush, 206.
Mr. Justice Sheldon delivered the opinion of the Court:
On March 22, 1878, the city council of Bloomington
adopted an ordinance for the building of a sidewalk touching
upon the line of the south end of lot 44, in Mason's addition
to the city of Bloomington, requiring that it should be paid
for by special taxation of the lots touching upon the
line of the sidewalk by levying the whole cost thereof
upon the lots touching upon the line of the sidewalk
in proportion to their frontage upon the sidewalk. That
such owners should build the sidewalk as prescribed, within
thirty days after the publication of the ordinance, and
that in default thereof the street commissioner should con-
struct it and make return to the city clerk of the cost,
together with a list of the lots touching upon the sidewalk,
their frontage thereon, and the names of the owners,-^-where-
upon the city clerk should proceed to make a tax list against
the lots and the owners, ascertaining by computation the
amount of special tax to be charged against each of the lots
and the owners on account of the construction of the sidewalk,
according to the frontage of each lot on the sidewalk; and
the city clerk should thereupon issue his warrant to the
special collector, who should proceed to collect the amount of
the owner of the property, and in case of his failure to collect
the amount he should make return to the county collector,
608 White v. The People ex rel. [May
Opinion of tbe Court.
and if not paid to the county collector, he should apply for
judgment against the land as in case of other taxes.
John L. White, the owner of said lot 44, having failed to
build the sidewalk in front of the premises as ordered, the
sidewalk was constructed by the street commissioner at an
expense of $11.54, and upon proceeding had in every respect
in compliance with the ordinance, White, the owner, refused
to pay the tax for the above amount, and application was made
by the county collector to the county court for judgment against
the land. White, the owner, appeared and filed the following
objections to the application :
1. The ordinance is null and void.
2. The law (under which the ordinance was passed) is
unconstitutional and void.
3. The assessment exceeds the benefits derived to the lot
by said improvement.
4. The property is not specially benefited to the extent
of the cost of the improvement.
5. The assessment is void as being made according to
frontage.
To each of the objections a demurrer was interposed and
sustained by the court, and judgment rendered in favor of the
People, from which the objector, the owner of the lot, took
this appeal.
The statute under which the ordinance in question was
passed, enacts that in addition to the mode now authorized by
law, any city or incorporated town or village may, by ordi-
nance, provide for the construction of sidewalks therein, and
may, by such ordinance, provide for the payment of the whole
or any part of the cost thereof, " by special taxation of the lot,
lots or parcels of land touching upon the line where any such
sidewalk is ordered, and such special taxation may be either
by a levy on any lot of the whole or any part of the cost of
making any such sidewalk in front of such lot or parcel of land,
or by levying the whole or any part of the cost upon each of
the lots or parcels of land touching upon the line of such
1880.] White v. The People ex rel. 609
Opinion of the Court.
sidewalk, pro rata, upon each of said lots or parcels, according
to their respective values ;'■■.**'*■ or the whole or any
part of the cost thereof may be levied upon such lots or par-
cels of land in proportion to their frontage upon such side-
walks, or in proportion to their superficial area, as may be
provided by the ordinance ordering the laying down of such
sidewalk," — the statute further providing particularly in
detail upon the subject. Laws 1875, p. 63.
"No question is made as to the ordinance being in pursuance
of the statute, or as to the regularity, under the ordinance, of
every step which has been taken in the proceeding. The real
questions which are made, are whether the said sidewalk law
is constitutional, and if so, whether the tax or assessment
that may be levied under it is limited to actual benefits.
In The City of Chicago v. Lamed, 34 111. 203, this court
decided that an assessment for the grading and paving of a
street made on the basis of the frontage of lots upon the
street was invalid; and the same was decided in The City of
Ottawa v. Spencer, 40 111. 211, with reference to an assess-
ment for building a sidewalk on the basis of the exclusive
liability of the owners of the adjacent lots for the cost of the
improvement according to the frontage of the lots thereon.
Those decisions were made under the constitution of 1848,
and in view of the provisions of sections 2 and 5, article 9
of that constitution, which were as follows:
Section 2 of article 9 of that constitution declared that the
General Assembly should provide for levying a tax by valua-
tion, so that every person and corporation should pay a tax
in proportion to the value of his or her property.
Section 5 of the same article provided that the corporate
authorities of counties, townships, school districts, cities,
towns and villages, might be vested with power to assess and
collect taxes for corporate purposes, — such taxes to be uni-
form in respect to persons and property within the jurisdiction
of the body imposing the same.
It was held in those cases, that under these provisions of
39—94 III.
610 White v. The People ex rel. [May
Opinion of the Court.
the constitution of 1848 there did not exist, either in the
legislature or in the corporate authorities of cities and towns,
a power of apportioning taxes, whether of a general or of a
local character, except on the principle of equality and uni-
formity ; that it was manifest that constitution established
equality and uniformity to be the principle of taxation through-
out the State in all its subdivisions of local government. It
was held that the paving of a street or making a sidewalk
were not mere local improvements, but were matters of public
benefit, extending throughout the chartered limits of the city
or town, in which the whole public were interested and
should pay a proportion of the expense; and that the only
valid mode, under the above constitutional provisions, of
making such improvements through the agency of special
assessments was to assess each lot the special benefits it would,
derive from the improvement, charging such benefits upon
the lots, and the residue of the cost to be paid by equal and
uniform taxation.
The many decisions of courts of other States sustaining
statutes authorizing the assessment of the expense of such
improvements upon the lots fronting on the improvement, as
a proper and constitutional exercise of the taxing power by
the legislature, were held not to apply, on the ground that in
neither of such States could there be found the same consti-
tutional provisions as those above cited. It was said that
section 5, requiring taxes for corporate purposes to be uniform
in respect to persons and property within the jurisdiction of
the body imposing the same, was believed to be peculiar to
that constitution of 1848, and to be more stringent than any
other State constitution on the same subject.
But the questions in the present case arise under our con-
stitution of 1870, which is entirely different upon the point,
on which our former decisions cited were made to depend, so
that those decisions have little pertinency in the present case.
Section 1 of article 9 of the constitution of 1870 declares
that "the General Assembly shall provide such revenue as
1880.] White v. The People ex rel. 611
Opinion of the Court.
may be needful by levying a tax by valuation, so that every
person and corporation shall pay a tax in proportion to the
value of his, her or its property."
Section 9 of the same article provides that " the General
Assembly may vest the corporate authorities of cities, towns
and villages with power to make local improvements by
special assessment, or by special taxation of contiguous prop-
erty, or otherwise. For all other corporate purposes, all
municipal corporations may be vested with authority to assess
and collect taxes, — but such taxes shall be uniform in respect
to persons and property within the jurisdiction of the body
imposing the same."
Appellant, in claiming that this sidewalk law is unconsti-
tutional, should point out the provision of the constitution
that conflicts with the law. The only provision as so doing,
to which his counsel have referred, is, "that private property
shall not be taken for public use without just compen-
sation,— such compensation, when not made by the State,
shall be ascertained by a jury, as shall be prescribed by law."
Section 13, article 2. That limitation, we consider, has
reference solely to the exercise of the power of eminent
domain. The People v. Mayor, etc. 4 Comst. 419; Allen v.
Drew, 44 Yt. 175; Warren v. Henley, 31 Iowa, 31.
It is quite clear that the levying such local assessments (for
the building of sewers and sidewalks) is not taking private
property for public use under the right of eminent domain,
but is the exercise of the right of taxation, inherent in every
sovereign State. (Per Redfield, J., in Allen v. Drew, supra.)
The courts seem to be very generally agreed, that the
authority to require the property specially benefited to bear
the expense of local improvement, is a branch of the taxing
power, or included within it. 2 Dill. Mun. Corp. § 596. The
compensation, under this provision, is to be ascertained by a
jury-
As remarked in The People v. Mayor, etc., supra, " This is
an appropriate mode when lands or goods are taken, because
612 White v. The People ex rel. [May
Opinion of the Court.
their value is uncertain, but not when money is taken, because
its value is already fixed."
Not only is there in the constitution of 1870 the absence of
any restriction of the mode of taxation here adopted, but
there is express authorization of it in the fullest terms. It is,
that the General Assembly may vest the corporate authorities
of cities, towns and villages with power to make local im-
provements by special assessment, or by special taxation of
contiguous property, or otherwise. We do not see what
broader authority than this is needed to justify an enactment
whereby a town lot may be chargeable with the expense of
the construction of a sidewalk in front of this lot. It is a
special tax on property contiguous to the improvement. And
the constitution says special taxes may be levied on property
contiguous to the improvement. There is no limitation in
respect of equality or uniformity, as in the Constitution of
1848.
In the next following clause of section nine, "for all other
corporate purposes," etc., there is the limitation of uniformity;
there, for all other corporate purposes the taxes shall be
uniform in respect to persons and property within the juris-
diction of the body imposing the same. Thus drawing a
sharp contrast in the two clauses between the making of local
improvements and other corporate purposes — the first clause
providing for making local improvements by special assess-
ment, or by special taxation of contiguous property, or
otherwise, unqualifiedly, without any limitation whatever —
the second clause providing for taxation for other corporate
purposes, but with the limitation that the taxes for other cor-
porate purposes shall be uniform within the jurisdiction of
the municipality. We find the phrase " special taxation"
introduced for the first time in the constitution of 1870.
There is nothing there defining its meaning. If we may
resort to former legislation of the State, as it is used there,
for its meaning, we shall find it to embrace the precise kind
of tax which is here in question. For instance, the charter
1880.] White v. The People ex rel. 613
Opinion of the Court.
of the city of Alton, Laws 1833, p. 208, sec. 6, contains this
provision: " It shall be lawful for the board of trustees to
levy aud collect a special tax on the owners of lots on said
street or parts of street, according to their respective fronts,
for the purpose of grading and paving the sidewalks in said
street." The same provision occurs in various other muni-
cipal charters passed prior to the adoption of the constitution
of 1870, the assessments authorized by them being denomina-
ted in the various acts special taxes, and to be levied in
proportion to the frontage upon the improvement. Where a
sidewalk required to be laid down extends, as in the present
case, along the property of but one person, how can the cost
be defrayed "by special taxation of contiguous property,"
otherwise than by imposing the tax for the cost on the prop-
erty in front of which the sidewalk is made?
The provision that these local improvements may be made
by special taxation of contiguous property, but that for all
other corporate purposes taxation shall be uniform in respect
to persons and property within the jurisdiction of the body
imposing the tax, excludes all idea that for the making of
such local improvements every person shall pay a tax in
proportion to the value of his property, and that general re-
quirement found in section one is modified by section nine,
that the corporate authorities of cities, towns and villages may
be vested with power to make local improvements by special
taxation of contiguous property, or otherwise, and does not
apply in such case. The whole constitution must be taken
together.
Whether or not the special tax exceeds the actual benefit to
the lot is not material. It may be supposed to be based
on a presumed equivalent. The city council have determined
the frontage to be the proper measure of probable benefits.
That is generally considered as a very reasonable measure of
benefits in the case of such an improvement, and if it does not
in fact, in the present case, represent the actual benefits, it is
614 White v. The People ex ret [May
Opinion of the Court.
enough that the city council have deemed it the proper rule
to apply.
In Allen v. Drew, supra, in reference to such local improve-
ments and assessments, Redfield, J., observes : " They are
each, in degree, a general benefit to the public, and a special
benefit to the local property. * * * * Such assessments
are justified on the ground that the subject of the tax receives
an equivalent. But if the court should hold the assessment
void because they adjudged the equivalent unequal, then no
tax could stand, and government would cease," and see
Cooley on Taxation, 450. And on page 451 of the work last
named, on the same subject, it is said: "In many instances
* * * .* the legislature has deemed it right and proper
to take the line of frontage as the most practicable and
reasonable measure of probable benefits, and making that the
standard, to apportion the benefits accordingly. Such a
measure of apportionment seems at first blush to be perfectly
arbitrary, and likely to operate in some cases with great
injustice, but it can not be denied that, in the case of some
improvements, frontage is a very reasonable measure of bene-
fits, much more just than value could be, and perhaps
approaching equality as nearly as any estimate of benefits
made by the judgment of men. However this may be, the
authorities are well united in the conclusion that frontage
may lawfully be made the basis of apportionment."
And the same author, in his work on Constitutional Limita-
tions, p. 507, remarks: "It has been held equally competent
to make the street a taxing district and assess the expense of
the improvement upon the lots in proportion to the frontage.
Here, also, is apportionment by a rule which approximates to
what is just, but which, like any other rule that can be
applied, is only an approximation to absolute equality. But
if, in the opinion of the legislature, it is the proper rule to
apply to any particular case, the courts must enforce it."
In Dillon on Mini. Corp., sec. 596, it is said : "And the
many cases which have been decided fully establish the gen-
1880.] White v. The People ex rel. 615
Opinion of the Court.
eral proposition that a charter or statute authorizing the
municipal authorities to open or establish streets, or to make
local improvements of the character above mentioned (side-
walks among them), and to assess the expense upon the property
which, in the opinion of the designated tribunal or officers,
shall be benefited by the improvement, in proportion to the
amount of such benefit, or upon the abutters in proportion
to benefits or frontage or superficial contents, is, in the
absence of some special constitutional restriction, a valid
exercise of the poAver of taxation* Whether the expense of
making such improvements shall be paid out of the general
treasury or be assessed upon the property benefited, or legis-
latively declared to be benefited, and, if in the latter mode,
whether the assessment shall be upon all property found to
be benefited or alone upon the abutters, according to frontage
or according to the area of their lots, is, in all cases, a ques-
tion of legislative expediency, unless there be some special
restraining constitutional provision upon the subject. What-
ever limitation there is upon the power of taxation (which
includes the power of apportioning taxation) must be found
in the nature of the power and in express constitutional
provisions." (See cases on the subject in various State courts
collected in note.)
And that it is competent for the legislature to require the
abutter to bear the whole expense of the improvement in front
of his property, is laid down in sec. 597 of the same work,
and in Warren v. Henley, 31 la. 31, and Weeks v. Milwaukee, 10
Wis. 258. And Cooley on Taxation, 453, 398, while express-
ing the contrary opinion in this last particular, with respect
to local improvements in general, concedes that in sidewalk
cases this latter mode for the construction of them has been
held admissible, but that it has been justified as a regulation
of police, and is not supported on the taxing power exclu-
sively.
It is only in a special assessment proceeding proper, as
known and adopted in this State since the Lamed case, that
616 White v. The People ex rel. [May
Opinion of the Court.
regard is to be had to special benefits and an actual assess-
ment of them alone to be made upon the property, and the
residue of the cost to be paid by general taxation. And the
objection that the special tax here exceeds the benefits to the
lot, implies that the only mode of making the improvement
is by special assessment; whereas, the broad power is given,
under the constitution, to make it either by special assessment,
or by special taxation of contiguous property, or otherwise.
The objection leaves out of view, and treats as meaningless
and of no avail, the word.^ "by special taxation of contigu-
ous property," and "or otherwise," which have with special
care been inserted in the constitution of 1870. It also disre-
gards that there is no requirement of uniformity of taxation
for local improvements, while there is for other corporate
purposes. This proceeding is in the special taxation of con-
tiguous property; and in the adoption of that mode there is
no requirement of benefits received, and no respect thereto,
further than may be had by the city council in determining
upon which particular one of the several modes of special
taxation of contiguous property open to them shall be resorted
to. The condition is reversed now from what it was at the
time the decision in the Lamed case was made. It was there
held that the decisions of other State courts on the subject
were inapplicable, because of that peculiar restrictive provi-
sion in our constitution of 1848, before cited; but that re-
striction is left out of the constitution of 1870, and, instead,
there is expressly granted the unrestricted power to cause
these local improvements to be made by special assessment,
or by special taxation of contiguous property, or otherwise.
We may now say that we believe this provision makes our
constitution of 1870 at least as liberal upon this subject as
any other State constitution; and therefore, that the decisions
of other courts of the Union, the great current of which are
in support of the mode of such taxation on the basis of front-
age, apply now with full force.
1880.] White v. The People ex rel 617
Opinion of the Court,
After the interpretation of the constitution of 1848 in the
Lamed case, the constitution was radically changed in the
particular here involved, for the very purpose, we may sup-
pose, of avoiding inconveniences which had been found to
result from that decision.
The system of special assessments proper might answer in
some of the large cities, where it would not suit smaller towns.
It might be too cumbersome and expensive for the latter. To
have the formal procedure of a special assessment proceeding
as known to our law gone through with, and a question of
benefits be liable to be submitted to the decision of a jury
every time a piece of sidewalk was there to be laid down,
would involve a labor, delay and expense which might be
oppressively felt. Common experience and judgment teach
us that sidewalks are a special benefit to the contiguous prop-
erty, and it has ever, very generally, been considered as just
and equitable that such property should pay the expense of
them.
The framers of the constitution of 1870 thought it proper
that the General Assembly should not be hampered in this
respect, as they before had been, and so left out the former
restrictive provision of uniformity in all municipal taxation,
and adopted the broad provision that the General Assembly
might vest the corporate authorities of cities, towns and villages
with power to make local improvements by special assessment,
or by special taxation of contiguous property, or otherwise.
Thus, prescribing no rule whatever upon the subject, but
placing the matter wholly under the control of the General
Assembly, that that body might, from time to time, enact such
laws upon the subject as the interest of towns and cities
throughout the State might require. The General Assembly
have accordingly, by this sidewalk law, invested cities, towns
and villages with power to tax contiguous property for the
expense of constructing sidewalks, and have left it with them
to determine, as they may think it just and equitable in the
circumstances of any particular case, whether the former mode,
818 White v. The People ex rel. [May
Mr. Chief Justice Walker, dissenting.
by general taxation or by special assessment, should be pur-
sued; or whether there should be special taxation of the con-
tiguous property, either by a levy on the property of the cost
of making the sidewalk in front of it, or by a levy of the tax
in proportion to value, frontage or superficial area.
The grant of power by the General Assembly is explicit
for pursuing the mode which has been adopted in the present
case. The only inquiry, then, must be, whether there is any
constitutional prohibition of the grant of the power. We
find none.
The judgment of the court below is therefore affirmed.
Judgment affirmed.
Mr. Chief Justice Walker, dissenting:
I am unable to concur in the conclusion announced by the
majority of the court in this case, and shall give a few of the
reasons which induce me to dissent.
To my mind, there is no proposition that is plainer than
that, in organizing our State government, in the exercise of
the taxing power it was intended to limit it, under all cir-
cumstances, at all times and for all purposes, to valuation and
uniformity in its imposition and collection. That this was
the principle adopted and intended to be enforced, is, I think,
manifest from the various provisions of the ninth article of
our constitution. The first section of that article specifies
two classes of taxes — one levied on property and required to
be determined by valuation, so that each person or corpora-
tion shall pay taxes in proportion to the value of his, her or
its property; the other is authorized to be imposed on speci-
fied persons, callings or business, to be uniform as to each
class, and to be imposed by general law. All other kinds of
taxes for State purposes are required to be imposed in such
a manner as to conform to and be consistent with the princi-
1880.] White v. The People ex rel 619
Mr. Chief Justice Walker, dissenting.
pies of taxation fixed in that instrument. Thus, we "see the
power in raising State revenue is expressly limited, when im-
posed on property by valuation, on persons, callings or busi-
ness, by uniformity ; and when on other objects and subjects not
enumerated, the second section requires it to be in conformity
to the same principles. These provisions render it absolutely
indispensable that uniformity and equality of burthen shall
be observed in such cases.
To enforce these principles beyond all possibility of doubt,
the 6th section provides that " the General Assembly shall
have no power to release or discharge any county, city, town-
ship, town or district whatever, or the inhabitants thereof, or
the property therein, from their or its proportionate share of
taxes to be levied for State purposes, nor shall commutation
for such taxes be authorized in any form whatever," — thus,
as far as language can express the intention, prohibiting any
other than uniformity to be adopted. This is manifestly true
of taxes levied for State purposes.
The 9th and 10th sections of article 9 require, in express
language, that in levying taxes for municipal purposes they
shall be uniform in respect to persons and property with-
in the jurisdiction of the body imposing the same. This
principle is announced most emphatically with reference to
these taxes. The constitution, then, imposes these terms and
conditions in express language upon all but special taxes on
contiguous property to make local improvements. The same
rules were always required in making special assessments,
and had become a fixed rule of our courts long before the
adoption of the constitution, and the term special assessments
must have been used by the framers of that instrument as it
had been defined by the courts. Uniformity and valuation,
then, being the rule, how can it be reasonably supposed that
there could have been an intention to depart from it in levy-
ing special taxes?
Under the constitution, in all other places, and for all
other purposes, the word tax implies a sum of money levied
620 White v. The People ex rel. [May
Mr. Chief Justice Walker, dissenting.
for public use, on valuation or uniformity, and how can we
presume, in this single instance, it was intended to be used in
a different sense ?
The same reasons apply for guarding the rights of the
citizen from oppression and wrong, in levying a special tax
for this purpose, as in levying a State or a municipal tax.
Why should the owner of property adjacent to the improve-
ment be left to the imposition of an arbitrary burthen for the
benefit of the public, whilst property of all other citizens is
protected? Shall he be liable to be despoiled of his property,
or subjected to great if not ruinous burthens, simply because
the constitutional convention failed — it may be, through in-
advertence— to add at the end of the clause, "but such taxes
shall be uniform in respect to persons and property?" It is
sufficient that the rule was not dispensed with in terms, or
by clear implication. Shall we, even if it can be said this
clause is doubtful, construe it most unfavorably to the protec-
tion of the rights of the citizen, when the improvement is
made for the benefit of the public? Shall we say that he may
have such burthens imposed when all others are protected in
their rights?
We should not adopt a construction that must work in-
justice, unless the language manifestly requires it, in the
enforcement of a provision of the constitution or a statute.
The more benign and just interpretation should always pre-
vail. This is a rule that has always obtained, and was
adopted to prevent injustice, wrong and oppression. And I
think that this provision should be construed in harmony
with the other provisions of the constitution. I can see no
reason why it should not, as the language or justice do not
demand it.
The power to levy and expend taxes is liable to more and
greater abuse than any other. Hence the effort by the con-
vention to bring it within such rules and principles as would
prevent unjust oppression. And in all cases but a special tax
1880.] White v. The People ex rel. 621
Mr. Chief Justice Walker, dissenting.
for a local improvement, they seem to have succeeded, as far
as human agency is capable of accomplishing such a purpose.
Can we suppose the framers of the constitution intended
to limit the General Assembly and corporate powers to the
rule of uniformity, and leave the authorities of cities, towns
and villages without any control but their will? Why dis-
trust the General Assembly and the corporate authorities of
municipalities, and compel them to act within prescribed
limits, and leave the officers of cities, towns and villages with
uncontrolled power in levying special taxes? I can see no
reason why they should be trusted with unrestricted power in
this, and compelled to observe rules of uniformity in levying
taxes for other purposes. I am unable to comprehend why
the word tax, when qualified by the word special, should have
attached to it a different operation, or imply a different mode
of levy from the term as defined by the framers of the fun-
damental law. In all other cases the term tax is used in the
sense of uniformity or of valuation. And every reason
requires that the same rule should apply to a special tax, and
I can conceive none that is opposed to it. I am, therefore,
clearly of opinion that no well founded distinction can or
should be taken.
If the General Assembly may authorize the construction
of sidewalks in this mode, the grading and paving of streets in
cities and villages and the construction of roads and bridges
in incorporated townships may be so authorized. And
who will say they may not authorize the erection of engine
houses, town halls, and all other local improvements in the
same manner. They are all local improvements, and no
more for public use than sidewalks.
And if these improvements may be made in this manner,
all can see that in many instances it would operate to confis-
cate the property of the unfortunate owner, if it happened to
be adjacent to the local improvement. Suppose such authority
conferred, and an ordinance passed to grade a street requiring
deep cuts and heavy fills, and expensive protection walls, and
622 "White v. The People ex reL [May
Mr. Chief Justice Walker, dissenting.
to be paved with stone or wooden blocks, and the ordinance
imposed the whole cost on the adjacent property, — or sup-
pose in an incorporated township an ordinance should, under
such authority, require a road or all of the roads to be graded,
bridged and McAdamized, and the cost should be imposed on
the adjacent lands, — do not all see that this would be ruinous
to the unfortunate owners of the farms?
Even as the law now stands, there is no limit as to the
character of materials to be used, or of the cost of the con-
struction of the improvement. If the lot is of little value,
of considerable frontage, and the structure is to be of the
most costly character of curbing and of dressed flag-stones,
anyone can see that the improvement may equal or even
exceed the value of the lot, especially if not in the highly
improved portion of the city or village. Or suppose, under
the law, a farmer whose quarter-section adjoins a highway
on two sides should be required to construct an expensive
sidewalk along his entire frontage, does not every one see
that the construction of a mile of such sidewalk would be
highly oppressive? But it may be answered that a sense of
justice would restrain the authorities from perpetrating such
flagrant wrongs. The convention in its wisdom were unwil-
ling to trust to their sense of right in the imposition of all
other corporate burthens, and even limited and controled the
power of the General Assembly in the imposition of taxes.
When it is learned that these desirable but expensive public
improvements may be made at the expense of the few, and
the great body of tax-payers escape, we may well fear that
the power will be increased and its exercise will be greatly
abused.
Again, the authorities are empowered by this act to recover
the cost by an action of debt against the adjacent property
holders, thus enabling the authorities of these bodies, if the
property will not pay the cost, to collect the balance from
other property. If the law is sustained I fear that but a
portion of the great evils the framers of the constitution
1880.] White v. The People ex reL 623
Mr. Chief Justice Walker, dissenting.
intended to avert will continue unrestrained. The tendency
of government is to the abuse of power, and hence the neces-
sity that is constantly pressing for new constitutional limita-
tions and restrictions upon its exercise.
The provision authorizing the apportionment of the cost
on adjacent property in proportion to the superficial area of
lots or lands, ignores every principle of equality and uni-
formity of burthen. Suppose two persons own adjoining
lots, each of equal frontage, but one double the depth of the
other, is there any justice in saying the lot of double the
depth shall pay double the amount of the other towards the
structure ? It may possibly be that the larger lot is worth
double that of the smaller, but the chances are greatly in
favor of the contrary. It may be worth no more than the
other. The question of value does not necessarily depend on
mere quantity, but a great number of 'other circumstances
must be considered to determine it.
If it be asked how this special tax on adjacent property
can be levied in any other mode, it may be answered that
local or special districts or divisions may be formed and the
tax assessed at a uniform rate on all the property in the
division. There is no practical difficulty in requiring a side-
walk to be laid on both or either side of the entire length of
a street, or even on a square, or either or both sides of the
street, and to assess a tax to pay the cost of the structure on
the adjacent property in the entire division. Suppose it is
determined to lay a sidewalk on one side of an entire street,
or in front of one or more squares in the street, should not
all the adjacent property be taxed in proportion to its value
to produce a fund to pay the cost? Could an ordinance in
such a case be sustained which should specifically charge the
entire cost of the walk in front of each lot upon it? The
improvement in such a case is entire in its nature, and the
fund should be on all the property for its payment, and raised
on the principle of valuation and uniformity.
624 Smith v. Brittenham. [March
Syllabus.
If it be asked why the words "or otherwise" were inserted
at the end of the clause, I will say the previous portion of the
clause had named two modes of making such improvements:
one by special assessment, and the other by a special tax on
adjacent property. These words were, therefore, inserted to
exclude a conclusion that these were intended to be the only
modes. It was manifestly to permit these bodies to make
such improvements with unappropriated means in the treasury,
by a tax general within the limits of the corporate body, or
with money received on the commutation for road labor, and
by any other practicable means authorized by law. This, to
my mind, is the reason, and the only reason, for inserting
these words.
Other portions of the act, I think, are obnoxious to consti-
tutional objections, but not being presented by this record, I
shall not stop to discuss them. In my judgment the portion
of the statute which authorizes this proceeding is manifestly
unconstitutional and void.
Scholfield and Muleiey, JJ. : We also dissent from the
views of the majority of the court, and concur in the foregoing.
Columbus C. Smith
v.
Sarah J. Brittenham.
Filed at Springfield March 24, 1880.
1. Transcript of record on appeal or error — what questions to be considered
on second appeal — remedy as to rulings of this court. If the decision of this court
in a particular case is not satisfactory to the parties, the only remedy is to
make application for a rehearing. Any supposed errors which may have
intervened in a cause prior to an appeal or writ of error, will not be consid-
ered upon any subsequent appeal or writ of error. Cases can not be brought
to this court and considered in fragments.
1880.] Smith v. Brittenham. 625
Syllabus.
2. Errors occurring in the proceedings in a cause after it has been consid-
ered in this court, however, may of course be inquired into upon a second
appeal or writ of error, but, for that purpose only so much of the record as is
essential to the presentation of what is claimed to be such subsequent errors,
should be brought up.
3. Same — as to costs on record not necessary. Upon a second appeal in the
same cause, the party appealing filed, as a part of his record in this court, the
transcript as made up when the case was considered on the first appeal. On
motion to strike from the files such original transcript, it was considered as
not necessary to the consideration of the alleged errors occurring since the
first appeal, and as the questions involved therein could not be reconsidered
in this mode by this court, that part of the record was unnecessarily and
improperly brought here, — so it was stricken from the files, at the costs of the
appellant.
4. Re-docketing cause on remandment by Appellate Court — notice thereof.
In giving the ten days' notice of an intention to file a remanding order from
an Appellate Court, in the court below, upon the reversal of a judgment or
decree, the statute does not require that the ten days should expire before the
first day of the term of the court in which it is proposed to reinstate the case.
It is enough that "not less than ten days' notice" be given, though the time
may expire during the term.
5. Writ of possession — within what time to be awarded. A decree was
entered in a cause, settling rights in respect to certain lands, and giving the
defendant thirty days within which to voluntarily surrender the possession.
On error to the Appellate Court that decree was affirmed in all respects except
as to a clause therein, authorizing the clerk to issue a writ of assistance in
vacation, — in respect to that clause the decree was reversed, and the cause
remanded. Upon reinstating the cause in the court below, and within less
than thirty days thereafter, that court awarded a writ of possession. It was
held the thirty days allowed by the decree in which the defendant might sur-
render possession, should not be counted from the reinstating of the cause on
the docket, but from the affirmance of the decree in the Appellate Court.
Appeal from the Appellate Court for the Third District.
Messrs. Moore & Warner, for the appellant.
Messrs. Lodge & Huston, and Mr. L. Weldon, for the
appellee.
40—94 III.
626 Smith v. Brittenham. [March
Opinion of the Court.
Mr. Justice Scholfield delivered the opinion of the
Court :
Appellant has filed, as a part of his record, the record of
this case, as it was made up when considered by us at a
former term. Smith v. Brittenham, 88 111. 291.
A motion was made by appellee, before the case was taken,
to strike this part of the record from the files. We reserved
our decision on this motion until the final hearing; and now,
having considered the case, we think it very clear the motion
should be allowed.
That record has been disposed of. If the judgment pro-
nounced, and opinion filed upon it, were not satisfactory, the
only remedy was by an application for a rehearing. We
have often held that a case can not be brought here and con-
sidered in fragments. Errors occurring since the case was
here before may, of course, be inquired into, but, for that pur-
pose, so much of the record as is essential to the presentation
of what is claimed to be such errors, should only be brought
up. All cost and expense incurred by this unnecessary record
must be taxed against appellant.
The only questions that we can consider are those arising
on the errors alleged to have occurred since the first decision,
in the case, of the Appellate Court for the Third District.
That decision has never been interfered with, either on appeal
or error, and, like the former decision of this court in the
case, it is now res judicata. Chicago and Alton R. R. Co. v.
The People ex rel. etc. 72 111. 82; Rising et ux. v. Carr, 70 id.
596; Campbell v. Rankin, 99 U. S. (9 Otto) 261.
Did, then, the circuit court err in redocketing the case at
the March term, 1879, and in awarding, at that term, a writ
of possession? It is conceded that appellant had sufficient
notice of the intention of appellee to redocket the case, — for
at least ten days before it was redocketed; but the objection
taken is that this ten days did not expire before the first day
of that term of court. The statute does not require that the
ten days' notice shall be given before the first day of the term
1880.] Smith v. Brittenham. 627
Additional opinion of the Court.
of court, but simply that "not less than ten days' notice"
shall be given, etc. Eev. Stat. 1874, p. 785, § 84. The
statute does not limit the time to the commencement of the
term, and we perceive no satisfactory reason for holding that
such a limitation must have been within the contemplation
of the legislature. We think the notice was sufficient, and
that the cause was properly docketed at the March term, 1879.
The only objection taken to the awarding of the writ of pos-
session is, that appellant was entitled to thirty days in which
to voluntarily surrender possession, and that no writ could be
awarded until the expiration of that time.
The final decree gave appellant thirty days, it is true,
within which to surrender possession, but this thirty days is
not to be counted from the reinstating of the cause on the
docket, but from the affirmance of the decree in the Appel-
late Court, — and more than thirty days had expired after that
affirmance before the writ was awarded.
Perceiving no error in the record, the decree of the Appel-
late Court is affirmed.
Decree affirmed.
Subsequently, upon an application for a rehearing, the fol-
lowing additional opinion was filed :
Per Curiam: A petition for a rehearing in the foregoing
cause has been presented, based upon the assumption that the
entire record in the cause, from its inception to and including
the last order made in the Appellate Court, is now before us
upon a writ of error. This is a misapprehension. The
record before us is brought by appeal, and it brings before us
for review only the record of the Appellate Court reviewing
so much of the record of the circuit court as was brought be-
fore the Appellate Court by appeal, and this appeal is not
from the decree of the Appellate Court of its November
term, 1878, which affirmed the prior decree of the circuit
court in all respects, except in respect of the directing a writ
of assistance to issue, but from the decree of the Appellate
628 Smith v. Beittenham.
Additional opinion of the Court.
Court of its May term, 1879, affirming a decree of the circuit
court made subsequent to the November term, 1878, of the
Appellate Court, and directing another writ of assistance to
issue.
This misapprehension of the record renders the points dis-
cussed in the petition, as we conceive, entirely inapplicable to
the case.
We see no cause to depart from the conclusion reached in
the former consideration of the case.
The prayer of the petition for rehearing is denied.
Rehearing denied.
INDEX.
ACTIuNS.
When plaintiff has not performed contract.
1. Recovery when 'performance prevented. Where an attorney properly
employed by a town to perform legal services, being ready and willing
to perform the contract, is prevented from doing so by the proper officers
of the town, he will be entitled to recover under the contract. Town of
Mt. Vernon v. Patton, 65.
ADMINISTRATOR'S BOND.
Release of sureties.
1. A decree of the circuit court setting aside a will and directing an
administrator with the will annexed to administer the estate as intestate
property, will not release the sureties on his bond for the funds coming
to his hands when he continues to act as administrator and closes the
administration of the estate. Bell et al. v. The People, use, etc., 230.
ADMINISTRATION OF ESTATES.
Executor de son tort.
1. May discharge himself by paying debts of estate. An executor de son
tort of a solvent estate may discharge himself even as against the demand
of the rightful executor, by proving debts paid to the amount of the
goods received by him which had belonged to the estate of the deceased.
McConnell v. McConnell, 295.
2. Where a widow of a party took a United States bond of $1000,
which belonged to her deceased husband's estate, and never accounted for
the same to the administrator, but paid the same upon a note of $1500
against the estate, it was held, that she was not liable to the heir at law
in equity for the amount of the bond. Ibid. 295.
Administrator and guardian.
3. Both in the same person — in which capacity liable. See GUARDIAN,
1,2.
630 INDEX.
ADMINISTRATION OF ESTATES. Continued.
Supersedeas bond.
4. By an administrator — character of liability to be assumed. See PRAC-
TICE IN THE SUPREME COURT, 1.
ADMISSIONS. See EVIDENCE, 9 to 13.
ALLEGATIONS AND PROOFS. See PLEADING AND EVIDENCE.
AMENDMENTS.
Amendment op declaration.
1. After overruling motion for new trial. Where a declaration against
a carrier alleged that the defendant received sheep of the plaintiff, and
contracted to transport them to "Elwood, Kan.," and the proof showed an
agreement to transport to "Ellinwood, Kansas," it was held no error to
allow an amendment of the declaration, by striking out the word "El-
wood," and inserting the word "Ellinwood," even after overruling a
motion for a new trial, when the motion to amend was made before
deciding the motion for a new trial, the words being so nearly alike in
sound that the proof could create no surprise. McCollom ei al. v. Indian-
apolis and St. Louis Railroad Co. 534.
As to record of judgment or decree.
2. During a term, and subsequently. After the expiration of a term at
which a judgment is rendered, as a general rule, the court has no power
over the judgment, except to amend it in matters of form or to correct
clerical errors. Ooucher v. Patterson, 525.
3. During the term at which a judgment is rendered, the court has
control over the record, and for a sufficient cause appearing, may amend
its judgments and decrees or vacate and set them aside, but when the
term is ended, the judgment entered, and the case goes off the docket,
that power ceases and an amendment of a substantial character can not
be made. Ibid. 525.
4. After the close of a term at which a judgment is rendered, its abso-
lute verity can not be overcome or even attacked by affidavit. Ibid. 525.
APPEALS AND WRITS OF ERROR.
In criminal cases.
1. Whether appeal will lie — and to what court. Under the statutory
enactments in force since July 1, 1879, appeals from and writs of error
to the circuit courts, etc., in all criminal cases below the grade of felony,
must be taken directly to the Appellate Court, and not to this court.
Ingraham v. The People, 428.
2. Prior to the first of July, 1879, an appeal did not lie to this court
in a criminal case. Ibid. 428.
INDEX. 631
APPEALS AND WRITS OF ERROR. In criminal cases. Continued.
3. The statutes construed. The provisions of section 8 of the Appellate
Court act and section 88 of the Practice act of 1877, that appeals from
and writs of error to circuit courts, and the Superior Court of Cook county
and city courts, might be taken directly to the Supreme Court, in all
criminal cases and cases in which a franchise or freehold was involved,
are not to be construed as giving a right of appeal in a criminal case,
but only as allowing appeals and writs of error to this court in those
several enumerated cases according as appeals and writs of error laid in
such cases under the then existing laws, namely: a writ of error in
criminal cases, and in the other cases named both a writ of error and an
appeal, and not requiring those cases to be first taken to the Appellate
Court. Ingraham v. The People, 428.
Appeals from the trial courts.
4. Whether to the Supreme or an Appellate court — in suit in chancery to
foreclose. On September 12, 1879, a defendant in a chancery suit to fore-
close a mortgage sued out of this court a writ of error to reverse the de-
cree of foreclosure rendered in January, 1876: Held, that it should have
been sued out of the Appellate Court, and the writ of error was dismissed.
Grand Tower Mining, Manufac. and Trans. Co. v. Hall, 152.
5. To the Supreme Court direct — when a freehold is involved. Under the
Practice act, as amended by the act of 1879, in all cases where a freehold
is involved in the litigation, whether the suit be at law or in chancery,
an appeal will lie directly from the trial court to this court. Gage v.
Busse et al. 590.
6. And herein, whether a freehold is involved. Upon bill in chancery to
remove a cloud upon the title to land, the alleged cloud consisting of cer-
tificates of sales of land for taxes, there is no freehold involved so as to
give this court jurisdiction of an appeal direct from the trial court. Ibid.
590.
Appeals from the Appellate courts.
7. As to the amount involved. Where a creditor's bill is filed to subject
certain personal property to the payment of a judgment, in determining
the question of the jurisdiction of this court as affected by the amount
involved in the litigation, that amount is to be measured by the amount
of the judgment which is to be satisfied, without regard to the value of
the property sought to be subjected, although the value of such property
may largely exceed the amount of the judgment. Walker et ux. v. Malin
$ Co. 596.
8. iVb question of law certified. In an action of forcible detainer, which
does not involve a franchise, a freehold, or the validity of a statute, and
in which the amount involved does not exceed $1000, an appeal will not
lie from the Appellate Court to this court, there being no question of law
certified from the Appellate Court. Preston et al. v. Gahl, 586.
632 INDEX,
APPEALS AND WRITS OF ERROR.
Appeals from the Appellate courts. Continued.
9. Where judgment is final, and a freehold involved. Where the judgment
of the Appellate Court is such that no further proceedings can be had in
the circuit court, except to carry into effect the mandate of the Appellate
Court, and the litigation involves a freehold, an appeal lies to this court
from the judgment or decree of the Appellate Court. Fanning et al. v.
Russell et al. 386.
10. Whether decree appealed from is final. Where the Appellate Court
reverses the decree of the trial court, and remands the cause with specific
directions as to what decree shall be entered, so that nothing remains to
be done in the court below other than to carry into effect the mandate of
the Appellate Court, the decision of the Appellate Court will be considered
so far final that an appeal will lie therefrom to this court. Joliet and
Chicago Railroad Co. et al. v. Healy et al. 416.
11. Review of controverted facts. Where the Appellate Court sustains
the verdict of a jury as to the damages found on the trial of an action for
trespass to land, they depending on controverted facts, the judgment of
the Appellate Court as to the right to the damages recovered is final, and
this court can not examine the evidence as to the damages. Illinois and
St. Louis Railroad and Coal Co. v. Cobb, 55.
12. Where the Appellate Court affirms the judgment of the circuit
court, it must of necessity find that the evidence sustains the judgment
below, and such finding is, upon that question, conclusive on this court,
on appeal or error. Germania Fire Ins. Co. v. McKee, 494 ; Hewitt v.
Board of Education, 528.
13. In an action on the case to recover damages for an injury result-
ing from the alleged negligence of the defendant, the question of contrib-
utory and comparative negligence arose upon the evidence, and a judgment
in favor of the plaintiff in the trial court, was affirmed on appeal to the
Appellate Court, and it was held, on appeal from the Appellate Court to
this court, that the affirmance by the Appellate Court of the judgment of
the trial court amounted to a finding of the facts upon the question of
negligence in favor of the plaintiff, and, so far as that question was a
question of fact, such finding was conclusive upon this court. Hayward
v. Merrill, 349.
14. Of facts concerning question of excessive damages. In such case, how-
ever, this court did inquire and determine whether the damages assessed
by the jury were excessive. Ibid. 349.
15. As to a review of the facts — in chancery cases. The provision in the
Practice act making the findings of fact by the Appellate Court conclusive,
on error or appeal to this court, has no application to chancery cases;
and it is the duty of this court to review the evidence as to the facts
INDEX. 633
APPEALS AND WRITS OF ERROR.
Appeals from the Appellate courts. Continued.
found which constitute the basis of the decree. Fanning et al. v. Russell
et al. 386; Joliet and Chicago Railroad Co. ei al. v. Healy et al. 416.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
What creditors are included.
1. Deed of assignment construed. A debtor in failing circumstances
made a deed of assignment of ail his property for the benefit of his credi-
tors. The deed directed the assiguee to pay over and discharge in full,
with lawful interest, if the net proceeds should be sufficient for that pur-
pose, all and singular the debts due from the said party of the first part,
to the persons severally named in the schedule of creditors to be there-
unto annexed, it being intended to include in said schedule the names of
all the creditors of the party of the first part, with the amount due to each
of said creditors. And if the said net proceeds should not be sufficient
for the payment of the said debts in full as aforesaid, then to apply the
same, so far as they would extend, to the payment of the said debts, rata-
bly, and in proportion to the amounts thereof, without distinction or
preference." It was held, that under a proper construction of this deed,
all the individual creditors of the assignor were embraced in it, even
though the names of some of them did not appear in the schedule subse-
quently filed. Union National Bank of Chicago v. Bank of Commerce of
St. Louis, 271.
Change of terms of the deed.
2. Right of the assignor. Where a debtor has executed and delivered
to the assignee a deed of assignment of his property for the benefit of
creditors, the assignor has no power afterwards to change the terms and
conditions of the assignment without the consent of the assignee and the
creditors. Ibid. 271.
ATTORNEY GENERAL.
Appearance.
1. In proceeding for delinquent taxes — effect as to city taxes. On error to
reverse a judgment rendered in the county court for delinquent taxes due
to a city, and also for State and county taxes, where the Attorney General
enters his appearance, waiving service of process, but submitting to the
consideration of the court whether such waiver will give this court juris-
diction as affecting city taxes, it was held, the appearance of the Attorney
General, in behalf of the People, in respect to any of the interests in-
volved in the suit, was a good appearance as to the entire proceeding, thus
obviating the necessity of service of process for any purpose. English v.
The People, 580.
634 INDEX.
BAIL.
Pending writ of error.
1. This court will not admit a prisoner to bail pending a writ of error
to reverse a judgment of conviction for larceny, unless it is very clear
there can be no conviction upon another trial. Bennett et al. v. The People,
581.
BANKRUPTCY.
As TO TITLE OF ASSIGNEE.
1. Prior unrecorded deed from the bankrupt. An assignee in bankruptcy
does not take the title to the property of the bankrupt as an innocent
purchaser without notice, free from latent equities, etc., but he takes as a
mere volunteer, standing in the shoes of the bankrupt as respects the
title, having no greater rights in that regard than the bankrupt himself
could assert. Hardin v. Osborne, 571.
2. So, where a bankrupt had conveyed land prior to the time he was
adjudged a bankrupt, and the deed remained unrecorded, no title would
pass to the assignee as against the purchaser holding under the prior
unrecorded deed. Ibid. 571.
BILLS OF EXCEPTIONS. See EXCEPTIONS AND BILLS OF EXCEP-
TIONS, 1, 2.
BONDS.
Administrator's bond. See that title, 1.
Injunction bond. See MEASURE OF DAMAGES, 3.
Supersedeas bond.
By an administrator — character of liability to be assumed. See PRACTICE
IN THE SUPREME COURT, 1.
BOUNDARIES.
Boundary line between Perry and Jefferson counties.
1. Of the Little Muddy river. Under a proper construction of the act
of 1835, "to change the county line between Perry and Franklin coun-
ties," the Little Muddy River forms the eastern boundary of only so
much of Perry county as abuts upon Franklin county, and does not con-
stitute the eastern boundary of that portion of Perry county which
abuts upon Jefferson county. The boundary line between Perry and
Jefferson counties is the third principal meridian, as established by the
act of 1827 creating the county of Perry. County of Perry v. County of
Jefferson. 214.
2. Construction of act of 1835. Jefferson county abuts upon Franklin
on the north, — both these counties abut in part upon Perry on the east.
The Little Muddy river crosses the north line of Perry county a short
INDEX. 635
BOUNDARIES.
Boundary line between Perry and Jefferson counties. Continued.
distance west, from its north-east corner, thence running south-easterly,
crosses the east boundary line of Perry into Jefferson county, thence
meandering in a southerly direction through Jefferson and Franklin to a
point not far north of the south-east corner of Perry, where the river
takes a south-westerly course, crossing again the east boundary of Perry,
passing into that county and crossing its south boundary line, thus cut-
ting off the north-east and south-east corners of Perry county. The
letter of the act of 1835 would constitute the Little Muddy river the east
boundary line of Perry county, to the entire extent of the county, thus
making it the boundary line between Perry county and the counties of
Franklin and Jefferson abutting Perry county on the east. But to give
the act that effect would attach to Franklin county that part of Perry
situate in the north-east corner, which is cut off by the river, and which
is entirely detached from Franklin county proper, and upwards of three
miles from it. To avoid this absurd result the letter of the act must yield
to the evident intention of the legislature as deduced from the whole act
taken together, giving due consideration to the title of the act, and the
situation of the territory to be affected. County of Perry v. County of
Jefferson, 214.
3. So, the point of commencement as intended to be fixed by the act is
the middle of the river at the point where it crosses the north boundary
line of Franklin county, thence west on the county line to the third
principal meridian, thence north to the north-east corner of Perry county,
as established by the act of 1827, thus leaving the meridian line as the
boundary between Perry and Jefferson counties. Ibid. 214.
Prior deed — as evidence.
4. To establish disputed boundary. See EVIDENCE, 16.
BURGLARY. See CRIMINAL LAW, 9.
CARRIERS.
Military control.
1. Effect upon liability of carrier — refusal to receive freight. Where a
railroad company was under the military control of the government of
the United States, and operated by its officers in the transportation of
troops, munitions of war and supplies in the suppression of the late re-
bellion, so that it was not in the free and unrestrained exercise of its
franchise: Held, that the company was not liable as a common carrier
for refusing to receive freights for transportation, it not being safe to
undertake their carriage. Phelps v. Illinois Central Railroad Co. 548.
2. Where freight is accepted for transportation. A railroad company
can not be excused for delay or neglect to transport freight on the ground
636 INDEX.
CARRIERS. Military control. Continued.
of military interference on the part of the United States, where it
accepts the same with a knowledge at the time that it could not properly
transport the same on account of such interference. Phelps v. Illinois
Central Railroad Co. 548.
3. Estoppel by acts of agent. An agreement by an agent of a railroad
company to furnish cars at a future day, in which to transport grain,
and to receive and ship the same, will not estop the company, when sued
in tort upon its common law obligation to receive and carry the same,
from showing its right to refuse to receive the grain, owing to the mili-
tary control of its road by the officers of the army of the Untied States.
Ibid. 548.
Carriers of passengers.
4. Duty of officers of steamboats to provide safe mode of landing for pas-
sengers. See NEGLIGENCE, 3, 4.
CHANCERY.
Equity will not do an useless thing.
1. Nor require that to be done which will be unavailing. Without refer-
ence to the question of the rights of the public or of riparian owners, in
respect to the navigability of the " Healy slough," where it was sought
by the owner of a lot of ground abutting upon the slough, by bill in
chancery to compel a railroad company to remove a permanent bridge it
had erected over the same for railroad purposes, and to restore that body
of water to its former condition by constructing a draw-bridge or other-
wise, so as not to impair its usefulness, and to enable complainants to
avail thereof as a means of communication by vessels from the Chicago
river to a canal or slip owned by them, it appeared there was a space of
ground, over which they had no control, intervening complainant's canal
and the slough, which cut off the water connection so that a swing-bridge
over the slough, in place of the permanent bridge sought to be removed,
would be of no avail to them for the purpose alleged. It was held, a court
of chancery would not grant the prayer of the bill to do so useless an
act as the removal of the permanent bridge, inasmuch as such action
could result only in injury and expense to the railroad company without
any corresponding advantage to the complainants. Joliet and Chicago
Railroad Company et al. v. Healy et al. 416.
2. Equity will not do that which will be of no benefit to the party
asking it, and only a hardship upon the party coerced, — or, as the maxim
is, the law does not require any one to do vain or useless things. Ibid.
416.
Bill for an account — between partners.
3. Of the right to an accounting. A bill by a partner filed before the
end of the term the partnership was to run, alleged violations of the part-
INDEX. 637
CHANCERY. Bill for an account — between partners. Continued.
nership contract, and asked for the dissolution of the partnership, and
that an account be taken. During the pendency of the suit the term of
the partnership expired. A supplemental bill was filed by leave, stating
this fact, and charging a misappropriation of the partnership assets by
the defendants, and asking for an accounting between the partners.
Answers were filed to both bills, and replication thereto, and proofs were
taken and the cause referred to a master, who made a report showing
there was due to the complainant from one of the other partners several
thousand dollars, and considerable amounts due the firm. The court, on
the hearing, without any exception having been taken to the report, dis-
missed the bills: Held, that the complainant was entitled to a decree
settling the accounts and providing for the disposition of the effects of
the firm, and that the court erred in dismissing the bills. Guryea v.
Beveridge et al. 424.
Reference to the master.
4. If there is no ground for setting aside a master's report on a bill to
adjust partnership accounts, a decree should be entered upon it, and if
otherwise, the report should be set aside, and the matters again referred
to the master to state the account correctly. Ibid. 424.
Trial of feigned issue out of chancery.
5. Where a doubtful question of fact arises, it may be referred to a
jury on a feigned issue. The verdict in such case is to satisfy the con-
science of the chancellor, and if he is not satisfied, he may disregard it,
and either direct a new trial or find the facts himself. This is the prac-
tice in the courts of England as well as in our courts. Fanning et al. v.
Russell et al. 386.
6. If a party is not satisfied with the verdict of the jury, on the trial
of a feigned issue out of chancery, he should make his objections at the
earliest possible opportunity, and in the court in which the error has
intervened; and if he makes no objection in the court below, he will be
regarded as acquiescing in the finding of the facts. Ibid. 386.
Mistake.
7. And the correction thereof. See MISTAKE, 1, 2, 3.
CHANGE OF VENUE. See VENUE, 1 to 6.
COLLECTOR'S BOND.
As a lien on real estate of collector. See LIENS, 1, 2.
Remedy to enforce such lien. Same title, 3.
CONFLICT OF LAWS.
Militia of the State.
State and Federal power — and of their concurrent powers in respect to the
militia. See MILITIA OF THE STATE, 1 to 19.
638 INDEX.
CONSOLIDATING TOWNS.
In counties under township organization. See TOWNS, 2 to 7.
CONSTITUTIONAL LAW.
Classification of counties.
1. For purpose of regulating fees and compensation of certain officers — power
of the legislature. See FEES AND SALARIES, 1.
Compensation of county officers.
2. And of the allowance for clerk hire and office expenses. See FEES AND
SALARIES, 4, 5, 6.
Consolidating towns.
3. In counties under township organization — can only he done upon a vote
of the people — construction of the act of 1877, and its constitutionality. People
ex rel, Schack v. Brayton, 341. See TOWNS, 2 to 6.
4. Consolidating totons for park purposes — constitutionality of the act of
May 28, 1879, "concerning the continuance of towns for park purposes." Same
case. See same title, 7.
Militia of the State.
5. State and Federal power — constitutionality of the act of May 28, 1879,
"for the organization of the State militia." See MILITIA OF THE STATE,
1 to 19.
Police power of the State.
6. Generally, and of the prohibition of public parade of armed bodies of
men. See POLICE POWER OF THE STATE, 1, 2, 3.
License fee — foreign insurance companies.
7. Of the power of cities to impose a license fee upon such foreign corpora-
tions— and of the distinction between a license fee and a tax. See LICENSES,
2 to 6.
Taking pritate property for public use.
8. The rule requiring compensation — of its application. See TAXATION,
17.
Enabling act for collection of back taxes.
8. Constitutionality of act of 1877 authorizing cities and towns to collect
back taxes. See TAXATION, 11.
Uniformity of taxation.
10. Application of the rule. Same title, 14, 18, 19, 22, 26, 27, 28.
Texas and Cherokee cattle.
11. The act in relation thereto unconstitutional. See TEXAS AND
CHEROKEE CATTLE, 1.
INDEX. 639
CONSTRUCTION.
Construction of contracts. See CONTRACTS, 3, 4, 5.
Construction of statutes. See STATUTES.
Construction of wills. See WILLS.
CONTESTED ELECTIONS.
Jurisdiction. See ELECTIONS, 2.
CONTINUANCE.
Of the affidavit.
1. How construed. It will be presumed that the statements in an affi-
davit for a continuance are as favorable to the applicant as the facts will
warrant, and, as in the case of a pleading, all intendments, so far as the
affidavit is equivocal or uncertain, must, be taken against it. Slate v.
Eisenmeyer, 96.
Admission of the affidavit.
2. Of the effect to be given thereto. See EVIDENCE.
CONTRACTS.
Release of cause of action.
1. Whether properly obtained, so as to be binding. In an action against
a carrier of passengers to recover for personal injuries received by the
plaintiff, occasioned by the alleged negligence of the defendant, there
was interposed as a defence a paper executed by the plaintiff, purporting
to be a release of the cause of action. It appeared the plaintiff was an
illiterate woman, unable to read or write, and the paper was obtained
from her during her illness consequent upon the injury, by the physician
who was attending her, in the absence of any of her friends to whom she
could look for advice, — the physician explaining to her that the servants
of the defendant had expended the sum of money named in the paper for
her benefit, and wanted something to show what the money had been
expended for, and this was all the explanation he made. In view of these
facts, and especially the fact that the receipt or release was procured by
the attending physician, it was held it could not properly be considered
as binding upon the plaintiff. Eagle Packet Co. v. Defries, 598.
Contracts by towns.
2. For the prosecution and defence of suits. See TOWNS, 1.
Contracts construed.
3. A deed granting use of streets to railroad company, construed as to ap-
plication of conditions and limitations. See CONVEYANCES, 4.
4. A deed of assignment for the benefit of creditors, construed as to what
creditors are included. See ASSIGNMENT FOR BENEFIT OF CREDI-
TORS, 6.
640 INDEX.
CONTRACTS. Contracts construed. Continued.
5. Mining lease,, construed as to right of lessee to remove supports for
surface land. See MINES AND MINING, 5.
CONVEYANCES.
What estate passes.
1. Whether the absolute property in the thing or only an easement. A deed
to a railway company conveying no land, but. only the right, to construct,
maintain and use, in, through, upon and over certain lands, all such rail-
road tracks, depots, warehouses, etc., as the company should find necessary
or convenient for transacting its business, and to keep thereon, without
disturbance, all property belonging to or in the possession of the com-
pany, to have and to hold the said rights and easements so long as the
same should be used for such purposes, and for no other, even forever,
passes only an easement, which is a freehold of inheritance, though only
a bare or qualified fee, which may be defeated. Wiggins Ferry Co. v.
Ohio and 3fississippi Railway Co. 83.
2. A grantee may take a fee in any kind of hereditament, either cor-
poreal or incorporeal; but there is this distinction between the two
species: that a man is seized in his demesne as of fee of a corporeal
hereditament, while of an incorporeal hereditament he can only be said
to be seized as of fee, and not in his demesne, which means property in
the thing itself. Ibid. 83.
Grant of use of streets to railroad.
3. When not confined to grantee. Where a city, under special authority
of law, grants to a railroad company the right to use certain parts of its
streets for railroad tracks, the grant containing no clause restricting
the use of the streets to the grantee, the right to such use of the streets
may be transferred to another railroad company, which is authorized by
law to acquire and succeed to all the property, etc., of the grantee com-
pany. City of Quincy v. Chicago, Burlington and Qaincy Railroad Co. 537.
4. Co?istrued as to condition or limitation. Where a city by deed grants
to a railroad company rights of user of parts of four streets for railroad
tracks, not in one single clause, but by four separate and distinct para-
graphs, each granting rights and privileges, and immediately after the
last grant it is provided, "said right and privilege to be enjoyed and
exercised until," etc., limiting the same in respect of time, the condition
or limitation will be construed to apply only to the last of the four grants.
Ibid. 537.
CORPORATIONS.
Stock corporation — liability for debts.
1. Liability of directors and officers assenting to an indebtedness exceeding
capital stock. Under the provisions of section 16, chapter 32, Rev. Stat.
INDEX. 641
CORPORATIONS. Stock corporation — liability for debts. Continued.
1874, the directors and officers of a stock corporation who assent to an
indebtedness in excess of its capital stock, are made personally and in-
dividually liable for such excess to the creditors generally of such cor-
poration, and not to any particular creditor. Low v. Buchanan, 76.
2. The object and purpose of this section is that all claims arising
under its provisions shall be regarded in the nature of a trust fund, to be
• collected and divided pro rata among all the creditors, and this distribu-
tion can only be made in a court of equity. Ibid. 76.
Remedy — debts of stock corporation.
3. Where a stock corporation has incurred indebtedness in excess of
its capital stock to various parties, the individual liability of its directors
and officers assenting thereto can not be enforced by action at law at the
suit of a single creditor;, but the remedy is in a court of equity, where the
rights and liabilities of all may be determined and properly adjusted.
Ibid. 76.
4. If such an action can be maintained at law by a single creditor on
the ground there are no other creditors, he must set forth by proper aver-
ments in his declaration, and prove on the trial, the special circumstances
warranting such an action. Ibid. 76.
Municipal corporations.
5. Prosecution for exercising a calling without license — money paid and
retained for the privilege. A city can not be allowed to recover a penalty
from a person for pursuing a trade or calling, for the privilege of which
the city has received and retains the consideration exacted of him. In
such case it is immaterial whether the ordinance under which the privi-
lege was granted was valid or invalid, or whether the agents acting on
behalf of the city were de facto or de jure officers, or no officers at all.
Martel v. City of East St. Louis, 67.
6. License by de facto officers good, unless money paid is returned. Where
a person takes out a license to keep a dram-shop within a city, pursuant
to an ordinance of the city, the license being issued by de facto officers
of the corporation, and pays into the city treasury the sum exacted
therefor, and gives the proper bonds, before the city can maintain an
action against him for the penalty for carrying on the business without
a license, it must revoke his license and return him his money. Ibid. 67.
7. Doctrine of estoppel applies. The doctrine of estoppel in pais applies
to municipal corporations, but the public will only be estopped, or not, as
justice and right may require. Any positive acts by municipal officers
which may have induced the action of the adverse party, and where it
would be inequitable to permit the corporation to stultify itself by re-
tracting what its officers have done, will work an estoppel. Ibid. 67.
41—94 III.
642 index.
CORPORATIONS. Municipal corporations. Continued.
8. Adoption of acts of its officers. Where a city receives and retains
money paid by a party for a license to keep a dram-shop, with a knowl-
edge of the purpose for which it was paid, this will be equivalent to an
adoption by the city of the acts of the officers who assumed to act on its
behalf in issuing the license, and will make such acts its own, although
such officers were not de jure officers of the city. Martel v. City of East
St. Louis, 67.
9. Power of towns to make contracts for the prosecution and defence of suits.
See TOWNS, 1.
10. Power to charge license fee on foreign insurance companies transacting
business in the city. See LICENSES, 2 to 6.
11. Power of special taxation for local improvements, such as making side-
walks. See TAXATION, 17 to 22.
COSTS.
On disclaimer in ejectment.
1. As to part of the premises. Where a defendant in ejectment dis-
claims as to part of the property sued for, and pleads not guilty as to the
residue, and judgment is rendered in favor of the plaintiff for the part to
which the disclaimer applies, and judgment for the defendant on the trial
as to the balance, it is proper to give judgment against the plaintiff for
the costs of the suit. City of Quincy v. Chicago, Burlington and Quincy
Railroad Co. 537.
As against school trustees.
2. Upon the reversal of a judgment recovered by school trustees in a
suit upon the official bond of a township treasurer, no costs should be
awarded against the trustees. Under the statute, where school trustees
prosecute or defend in their official capacity, they are not liable for costs.
Cassady v. Trustees of Schools, 589.
As TO transcript on appeal or error.
3. As to costs on record not necessary. Upon a second appeal in the
same cause, the party appealing filed, as a part of his record in this court,
the transcript as made up when the case was considered on the first
appeal. On motion to strike from the files such original transcript, it
was considered as not necessary to the consideration of the alleged errors
occurring since the first appeal, and as the questions involved therein
could not be reconsidered in this mode by this court, that part of the
record was unnecessarily and improperly brought here, — so it was stricken
from the files, at the costs of the appellant. Smith v. Britienham, 624.
On appeal from an Appellate court.
4. As to original transcript of record from a trial court to an Appellate
court. On an appeal from an Appellate court to this court, the fees of the
INDEX. 643
COSTS. On appeal from an Appellate court. Continued.
clerk of the trial court, in the making of the transcript of the record upon
which the case is taken to the Appellate court, are properly taxable as
costs in the latter court, not in this court. Meacham v. Steele et at. 593.
COVENANTS FOR TITLE.
When a covenant runs with the land.
1. A covenant runs with the land when either the liability for its
performance or the right to enforce it passes to the assignee of the land
itself. In order that the covenant may run with the land, its perform-
ance or non-performance must affect the nature, quality or value of the
property demised, independent of collateral circumstances, or it must
affect the mode of enjoyment, and there must be a privity between the
contracting parties. Wiggins Ferry Co. v. Ohio and Mississippi Railway
Co. 83.
2. Where the relation of tenure is created by a grant, all the cove-
nants of the grantee for himself and his assignees, which affect the land
granted, will be a charge upon it, and bind every one to whom it may
subsequently come by assignment. Ibid. 83.
3. Where a ferry company granted certain rights or easements to a
railroad company over two tracts of land, which were assumed to be a
distinct property from the ferry franchise, in consideration of which the
railroad company covenanted with the ferry company always to employ
the latter to transport over the Mississippi river all property and persons
which might be taken across the river, either way, by the railroad com-
pany, either for the purpose of being transported on the railroad of the
grantee or having been brought to said river upon said railroad, so that
the ferry company, its representatives and assigns, owners of the ferry,
should have the profits of the transportation, etc.: Held, that as the
covenant was for the benefit of the owners of the ferry, and not for the
owners of the land out of which the easement was granted, a separate
and distinct property, the ferry company could not maintain an action at
law against a party succeeding to the rights, property and franchises of
the railroad company for a breach of the covenant. Ibid. 83.
CRIMINAL LAW.
Indictment.
1. Bad when it shows the offence to be barred. An indictment for a
misdemeanor showing on its face that the offence was committed more
than eighteen months before the finding of the same, without bringing the
case within any of the exceptions under which an indictment may be
returned after the expiration of that time, is bad, and should be quashed
on motion of the defendant. Lamkin et al. v. The People, 501.
644 index.
CRIMINAL LAW. Indictment. Continued.
2. For embezzlement. An indictment against a county treasurer for
embezzlement, which charges that the defendant, on, etc., then and there
being county treasurer of said county, duly elected in pursuance of law
to said office of public trust in said State, did feloneously and fraudu-
lently embezzle a large sum of money, to-wit, the sum of $4508.37, then
and there in possession of such officer by virtue of his said office, contrary,
etc., is sufficient even on motion to quash. Goodhue v. The People, 37.
3. For perjury. An indictment for perjury in making an affidavit of
the qualification of a person to vote at an election held in pursuance of
law, the vote of such person having been challenged, which charges that
the defendant feloneously, wilfully, corruptly and falsely in and by said
affidavit did depose, etc., omitting the word "knowingly," used in the
Election law, is not bad on account of the omission of such word, the
word "wilfully" implying intention as well as deliberation and purpose.
Johnson v. The People, 505.
4. An indictment for perjury in making an affidavit of the qualifica-
tion of a voter, which avers that there was an election for trustees and a
clerk for a certain village named, called and held in pursuance of law
therein, is a sufficient averment that the election board was legally
organized according to law, and an averment that the judge of election
who administered the oath had full power and authority to administer
the same, is a sufficient allegation of the legal organization of the board
of election. Ibid. 505.
5. In such a case there need be no averment as to the manner in
which the election board was organized, nor is it required to be averred
who the officer was who administered the oath, and to set it out, or to
aver that the officer who administered it had been duly elected, setting
out his commission and oath of office. When it is averred that persons
were acting as a board of election, proof of that fact is all that is re-
quired. Ibid. 505.
6. An indictment for perjury must show the materiality of the matter
, deposed to, but where it shows that at an election, held in pursuance of law,
a person made an offer to vote, and his vote on challenge had been rejected,
and thereupon it became material that the defendant should make an
affidavit that the person so offering to vote was a resident of the election
precinct, and that he did make and swear to such affidavit, this will suffi-
ciently show the materiality of the matter sworn to. Ibid. 505.
Felony — misdemeanor.
«. 7. Defined. A felony, under our statute, is an offence punishable with
death, or by imprisonment in the penitentiary, while every other offence
is a misdemeanor. When the offence may be punished by imprisonment
in the penitentiary, or by fine only, in the discretion of the court or jury,
index. 645
CRIMINAL LAW. Felony — misdemeanor. Continued.
it is only a misdemeanor, and the eighteen months' limitation applies to
it. Lamkin et al. v. The People, 501.
Intent to do a thing not alleged.
8. Where an indictment chai-ges that an officer did actually embezzle,
but does not charge that he took or secreted with intent to embezzle,
which is made a distinct offence, it is error to instruct the jury to convict,
if it be sufficiently shown that the accused did certain fraudulent acts
with intent to embezzle. Goodhue v. The People, 37.
Burglary.
9. Whether a "stable" is a "building." An indictment for burglary
averred that the "defendant broke and entered a stable," without also
averring the stable was a "building." On the objection that it would
not be presumed a stable was a "building," but the fact ought to be
averred in order to bring the case within the statute in relation to burg-
lary, it was held the objection was not well taken. A "stable," as that
word is commonly used, is a "building" and may well be included in the
class of structures denominated in the statute as "other buildings."
Orrell v. The People, 456.
Obstructing public highways.
10. Of the penalty there/or — punishable under two statutes. Section 58
of chapter 121, Revised Statutes of 1874, entitled "Roads," and which
provides for a penalty for obstructing a road, etc., in favor of the town in
which the offence is committed, is not repealed by section 221 of the
Criminal Code, subsequently enacted, which provides a different punish-
ment for the same offence by indictment, and a party obstructing a public
highway may be punished under both statutes. Wragg et al. v. Pe/m
Township, 11.
Perjury.
11. Wha4 constitutes — as to swearing from mere information and belief.
Where a party honestly believes statements made by him in an affidavit,
which prove to be untrue, he will not be guilty of perjury, but the jury,
in determining the fairness and honesty of that belief, are bound to look
to all the evidence showing the circumstances under which the oath was
taken; and if, from the evidence, it appears that a reasonable man could
not have held an honest belief of the fact sworn to, it will be their duty
to find the oath false, and, that the defendant intended to swear falsely.
The belief of the accused must be reasonable, and not capricious and wil-
fully entertained without reasonably fair evidence upon which it may be
based. Johnson v. The People, 505.
Self-defence.
12. The law does not allow a person to wilfully bring an attack upon
himself for the purpose of getting an opportunity to kill his assailant,
and then justify on the ground that he was acting only in his necessary
646 index.
CRIMINAL LAW. Self-defence. Continued.
self-defence. So where a person pursues another to his place of refuge,
with malice, and actuated by a desire for revenge, and invites the peril
of an attack upon himself in order that he may have an opportunity to
kill his assailant, if he thus draws an attack and kills his assailant, the
act of killing is murder. Wilson v. The People, 299.
Threats — in civil and criminal cases.
13. In an action under the statute to recover compensation for the
wrongful killing of another by attacking and shooting him, the defend-
ants are not entitled to prove threats of violence by the deceased which
had been communicated to them before the meeting which resulted in the
killing, unless it is further shown that the deceased made some hostile
demonstration before the attack, indicating present danger to the defend-
ant. Forbes ei al. v. Snyder, Admx. 374.
14. Previous threats are competent only to give character or coloring
to some act of the party having made the threats. The mere fact of
threats to take the life of a defendant does not justify him in seeking the
person making the threats and killing him on sight. This is not neces-
sary self-defence. Ibid. 374.
15. But if A should threaten to kill B on sight, and B has knowledge
of the threat, and upon meeting, A, without fault on B's part, should make
a demonstration apparently hostile and B should kill him, he would have
the right on the trial to prove his knowledge of the previous threats, that
the jury might determine whether he really acted upon a reasonable
apprehension of danger to his life or great bodily harm. Ibid. 374.
16. When life or liberty is at stake, as in criminal proceedings, courts
will permit threats to be proven upon very slight proof of a foundation
for such evidence, and this in favor of life and liberty; but in a mere
matter of dollars and cents, involving no vindictive damages, and seek-
ing merely compensation civilly for the wrong, no such leaning of the
court should be countenanced. Ibid. 374.
17. Wnere threats to take life are made, it, has been held that before a
party may attack or inflict harm upon the person making the threats, there
must be some overt act from which an intention may be reasonably in-
ferred to carry into effect the threats, and the danger must be immi-
nent. Wilson v. The People, 299.
Of several offences as part of one transaction.
18. When prosecution may be limited to one offence and compelled to elect.
If two or more offences form part of one transaction, and are such in
their nature that defendant may be guilty of both, the prosecutor will
not, as a general rule, be put to an election, but may proceed under one
indictment for the several offences, though they be felonies. The right
of demanding an election, and the limitation of the prosecution to one
INDEX. 647
CRIMINAL LAW.
Of several offences as part of one transaction. Continued.
offence, is confined to charges which are actually distinct from each other
and do not form parts of one and the same transaction. Goodhue v. The
People, 37.
19. In misdemeanors, within the discretion of the court, the prosecutor
may be required to confine the evidence to one offence; or, when evidence
is given of two or more offences, may be required to elect one charge to be
submitted to the jury; but in cases of felony it is the right of the accused
if he demand it, except where the offences charged are all parts of the
same transaction, that he be not put upon trial at the same time for more
than one offence. Ibid. 37.
20. On the trial of an indictment of a county treasurer for the em-
bezzlement of money in his hands as an officer, proof was given tending
to charge the defendant as to at least three different transactions occur-
ring at different times. On the close of the evidence for the people, the
defendant moved the court to put the prosecution to their election as to
which act of embezzlement they would claim a conviction, and further
moved the court to limit the prosecution to some one act of embezzlement;
which the court refused to do: Held, that the court erred in overruling
such motions. Ibid. 37.
21. Double punishment — twice in jeopardy. While a man may not be put
in jeopardy twice for the same offence, yet, when his act constitutes
two separate offences, one against the laws of the United Srates, and
the other against the laws of the State, or against the State law and
also against an ordinance of a city or town, he may be tried, con-
victed and punished under both laws, and the legislature may make
the same act, as, the obstruction of a highway, punishable as an offence
against the town in which the act is committed, and also as an offence
against the public generally, by indictment for a nuisance, and the
accused will not be in jeopardy twice for the same offence, but only once
for each offence. Wragg et al. v. Penn Township, 11.
Failure to furnish list of jurors.
22. Where it is made to appear that a defendant has been put to dis-
advantage from a failure to deliver to him in due time a correct list of the
jurors composing the panel, as by statute required, or to give him a fair
opportunity to prepare for trial, his conviction ought to be set aside; but
a new trial should not be gi'anted for every little inaccuracy that may
occur in this regard which works no injury to the accused. Goodhue v.
The People, 37.
Evidence in criminal cases.
23. On the trial of a county treasurer for embezzlement, the recitals of
misconduct on the part of the accused, in connection with the order of
removal of the accused from office and the appointment of his successor,
648 INDEX.
CRIMINAL LAW. Evidence in criminal cases. Continued.
contained in the record of the proceedings of the county board, ought not
to be given to the jury. Such recitals prove nothing. Goodhue v. The
People, 37.
24. On such trial the tax warrant for the collection of taxes is not
proper evidence for the purpose of showing the amount of taxes to be
charged against him, and is calculated to mislead the jury. Ibid. 37.
25. Variance in proof . On an indictment charging the defendant with
the embezzlement of money only, the admission of evidence showing the
larceny or embezzlement of county orders is error. Ibid. 37.
26. Of evidence as to motive of witness. One McDonald, while in the
store of another, was shot and killed by one Zack Wilson. On the trial
of a brother of Zack, on the charge of murder, as having advised and
aided in the act of killing, the proprietor of the store in which the kill-
ing was done, and who was present at the time, was a witness, and in
answer to the question by the prosecution: "Will you tell the jury how
you came to load your gun?" said: "I had an intimation that Zack was
coming there to shoot McDonald, and I was loading my gun to protect
my house." As original testimony this would doubtless have been ob-
jectionable. But on cross-examination the defendant had drawn from
the witness the fact that he was loading his gun when Zack approached
McDonald, necessarily with the view to raise some unfavorable inference
against the witness, or some favorable inference in behalf of the defend-
ant,— and under the circumstances there was no impropriety in getting
at the motive of the witness in loading his gun. Wilson v. The People,
299.
27. As to declarations of the person killed. In the case mentioned,
inasmuch as the line of defence justified the shooting of McDonald as
in necessary self-defence of Zack, it was competent, in rebuttal of that
theory, to show that McDonald was not aggressive, but on the contrary
acting on the defensive, and to that end, any of his declarations ex-
planatory of accompanying acts would be admissible as a part of the
res gestae.. Ibid. 299.
28. Declarations of a co-conspirator. Where several persons have con-
spired to have done an unlawful act, the declarations of one of them in
respect of the subject matter of the conspiracy, made after the conspiracy
has been formed, are admissible in evidence against his co-conspira-
tors. Ibid. 299.
29. But declarations in respect to the proposed unlawful act, made
by one of the parties before the conspiracy was entered into, will not be
competent evidence against other persons who subsequently joined in
the conspiracy to do the threatened act. Though in this case the ad-
mission of such declarations against a subsequent co-conspirator was
INDEX. 649
CRIMINAL LAW. Evidence in criminal cases. Continued.
held not to be ground of reversal, as the evidence could have done no
harm, under the circumstances of the case, to the party against whom
they were admitted. Wilson v. The People, 299.
DAMAGES.
Excessive damages. See NEW TRIALS, 1.
Measure of damages. See that title, 1 to 4.
DEDICATION.
For purposes of a highway. See HIGHWAYS, 1.
DEFAULT.
Setting aside default.
1. The setting aside' of a judgment by default is a matter of discretion of
the court in which the default is entered, the exercise of which will not
be interfered with, except when it appears such discretion has been
abused. Andrews v. Campbell, 577.
2. In the particular case. A declaration was filed in apt time, with an
affidavit of claim, and a default was taken, and an affidavit of a merito-
rious defence was filed by the defendant, and also that of his attorney
that he had prepared a plea a few days before the term, and the defend-
ant attached thereto an affidavit verifying his plea and setting out his
defence, and the attorney placed the plea and affidavit in the hands of a
young man in his office, who usually attended to having his papers filed,
with directions to file them, and the attorney supposed they had been
filed until the day of the default, and he learned of the default on the
tenth of the month, and a motion to set aside the default was not made
until the seventeenth day of the same month, and no explanation was
given for the delay in making the motion: Held, that this court could
not say there was any such abuse of discretion in refusing the motion as
to authorize a reversal of the judgment. Ibid. 577.
DEMURRER.
General demurrer to declaration.
One good count. See PLEADING, 2.
Special demurrer.
Its requisites. See PLEADING, 3.
DEPOSITIONS.
Right to have the whole read.
1. The plaintiff, in taking a deposition, examined the witness as to a
certain conversation of one of the defendants, but on the trial concluded
not to introduce this proof, and read the remaining part of the deposi-
650 INDEX.
DEPOSITIONS. Right to have the whole read. Continued.
tion. The defendants claimed the right to read the omitted part, and
thereby prove their own declarations: Held, that as it was not compe-
tent for the defendants to prove their own declarations, the court properly
refused to allow them to read the whole of the deposition. Forbes et al.
V. Snyder, Admx. 374.
2. It is true this court has said that a deposition once taken and filed,
either party has a right to use it; but the party proposing to use it must
use it only to prove that which it is competent for him to prove. Ibid.
374.
DESCRIPTION.
OF LAND — IN A PATENT.
1. A description of land in a patent from the United States as "the
west half of the south-west quarter of section 9, in township 15 north,
range 10 west, in the district of lands offered for sale at Springfield, Illi-
nois," is sufficiently certain. It is not essential toname the county in the
patent, and describing the land as in the district of lands offered for sale
at Springfield, Illinois, shows sufficiently the State in which the land is
situa'ted. Mapes et al. v. Scott et al. 379.
DISCRETION.
Setting aside default.
How far discretionary. See DEFAULT, 1, 2.
EASEMENT.
What is an easement.
As distinguished from the absolute property in the thing. See CONVEY-
ANCES, 1.
EJECTMENT.
Plaintiff must recover on his own title.
1. If a plaintiff in ejectment recovers at all, it must be on the
strength of his own title to the premises, and not upou any equities
another party may have in the subject of the litigation. Mester v. Hauser
433.
2. In ejectment the plaintiff must rely on the strength of his own
title, and must show in himself a legal title to all the land he recovers,
or the judgment can not be sustained. Stumpf v. Osterhage, 115.
Proof of title by possession.
3. Claiming the fee. Where a person goes into possession of land
under a deed purporting to convey to him a title in fee simple, improves
the same and continues to occupy the same up to his death, and in his
will claims the land as his home place, a part of which he devises to his
INDEX. 651
EJECTMENT. Proof of title by possession. Continued.
wife for life, proof of these facts by the wife in an action of ejectment
by her is sufficient evidence of title to authorize a recovery. The claim
of title need not necessarily be expressed in words. It may be shown by
acts. De Witt v. Bradbury, 446.
Outstanding title.
4. Prior mortgage. A mortgagor, when sued in ejectment, can not set
up a prior mortgage by him to another as an outstanding title. He is
estopped to allege that such mortgage is of force against the plaintiff.
Fisher v. Milmine et al. 328.
5. As the naked legal title must control in ejectment, it is sufficient to
defeat the action to show that the legal title is not in the plaintiff. Kirk-
land v. Cox et al. 400.
Attempt to recover under trust deed.
6. Of the defence. If the plaintiff seek to recover under a trust deed
given to secure a debt, he can do so only upon the same pi-inciple a mort-
gagee can recover the mortgaged premises, — as a means of obtaining
satisfaction of the indebtedness secured by the mortgage. And if it
appear such indebtedness has been paid, or in any way barred or dis-
charged, the right of entry as for condition broken will also be barred.
Mester v. Hauser, 433.
7. So it is competent in such case for the defendant — the grantor in
the trust deed — to show that usurious interest was reserved in respect of
the debt secured by the trust deed, and paid to a sufficient amount to
extinguish the debt so far as there was any legal claim. Ibid. 433
Of the judgment.
8. Whether sufficient. See JUDGMENTS, 1.
ELECTIONS.
Residence of voter.
1. The constitutional provision that every person who shall have re-
sided in the State, etc., shall be entitled to vote, means that he must
have a permanent abode in the State, county, etc., in which he offers to
vote, and hence there is no repugnancy between such provision and the
Election law as to the character of his residence. Johnson v. The People,
505.
Contested election.
2. Jurisdiction. The county courts have no jurisdiction to hear and
determine the contest of an election in respect to the office of alderman
in a city organized under the general law for the incorporation of "cities,
villages and towns." That jurisdiction is conferred by the general in-
corporation law upon the city council of the city in which the election
652 index.
ELECTIONS. Contested election. Continued.
has been held, under the provision which makes the council the judge
of the election and qualification of its own members. Linegar v. Ritten-
house, 208.
3. Weight of evidence — improper handling of ballots. Upon the contest
of an election in respect to the number of votes cast for the candidates,
respectively, where there is a disagreement as to the result between the
poll books, tally lists, and certificate of the result of the canvass by the
election officers entered in the poll books, supported by the testimony of
those officers on the one side, and the ballots themselves on the other side,
ordinarily the ballots are the better evidence, and control. Kingery v.
Berry, 515.
4. But where it is shown the ballots have been improperly handled by
the contestant, out of the presence of the other party or of the election
officers, and under circumstances rendering it possible for them to have
been tampered with, the ballots, by reason of such intermeddling, will
lose their value as evidence, and will not prevail as against the result
shown by the poll books, the tally lists, and certificate of the result of the
canvass of the votes by the election officers, supported by the testimony
of such officers. Ibid. 515.
5. In this case, after the canvass of the votes given at an election,
and the result announced, and the ballots placed in the custody of the
officer appointed by law for that purpose, that officer, together with sev-
eral other persons, including the candidate adversely to whom the result
had been announced, out of the presence of the other party and of the
election officers, opened the ballot-box and handled the ballots, — they took
the ballots out of the ballot-box, unstrung them from the thread they
were on, upon a table in a pile, — then put them back in the box and
counted them, and strung them again. In a proceeding to contest the
election, subsequently instituted by the party against whom the result
had been found, on the allegation that he had received more votes than
his competitor, it was held these ballots could not be counted in favor of
the contestant and as controlling the result shown by the poll books, tally
lists, and certificate of the result of the canvass by the proper officers,
supported by the testimony of those officers, and this, notwitstandihg
there was no evidence the ballots had been tampered with or altered, and
and that those of the persons who had so handled the ballots, who were
examined, testified they had no knowledge of any change being made in
them, and thought they would have known if such a thing had been done.
The. ballots lost their value as evidence solely upon the ground of the
improper and unlawful handling of them by the contestant, under the
circumstances mentioned. Ibid. 515.
INDEX. 653
ELECTIONS. Contested election. Continued.
6. Preserving the evidence — of the necessity, in order to support the decree.
On appeal from the judgment of a county court, in a statutory proceed-
ing to contest the alleged election of a person as commissioner of high-
ways, it is not the rule that the judgment will be presumed to have been
sustained by the proofs unless the bill of exceptions purports to contain
all the evidence, but the proceeding is to be regarded as in the nature of
a chancery proceeding, and the rule in chancery should apply, that, to
uphold the decree, it must appear from the record that it is supported by
the proofs. Kingery v. Berry, 515.
Consolidating towns.
7. In counties under township organization — can only be done upon a vote
of the People. See TOWNS, 2 to 6.
ESTATE IN LANDS.
Of a base or qualified fee.
1. A base or qualified fee is such as has a qualification subjoined
thereto, and which must be determined whenever the qualification annexed
to it is at an end. It is a fee, because it may possibly endure forever; and
it is base or qualified, because its duration depends upon collateral cir-
cumstances which qualify and debase the purity of the donation. Wig-
gins Ferry Co. v. Ohio and Miss. Railway Co. 83.
Of corporeal and incorporeal hereditaments.
2. Of the character of estate therein. A grantee may take a fee in any
kind of hereditament, either corporeal or incorporeal; but there is this
distinction between the two species: that a man is seized in his demesne
as of fee of a corporeal hereditament, while of an incorporeal heredita-
ment he can only be said to be seized as of fee, and not in his demesne,
which means property in the thing itself. Ibid. 83.
Whether an estate for life or in fee simple.
3. A devise construed. See WILLS, 10, 11.
What estate passes by deed.
4. As to the use of property for a specified purpose, as distinguished from the
absolute property in the thing. See CONVEYANCES, 1,
ESTOPPEL.
Agreement by agent.
1. It is an element of an estoppel in pais that there must have been a rep-
resentation concerning some material fact. An agreement of an agent of a
railroad company to furnish cars, and receive and ship grain at a future
time, is no admission of a common law obligation to receive and ship the
grain when offered, and presents no estoppel on the company to deny the
existence of such duty at the time the grain is offered for shipment. The
rule might be different in a suit upon the contract itself. Phelps v. Illi-
nois Central Railroad Co. 548.
654 INDEX.
ESTOPPEL. Continued.
TO DENY RIGHT IN AN ESTATE.
2. Where a party claims in good faith a vested remainder in a bequest
of $4000, which the tenant for life under the will entertains, and acknowl-
edges its justice by an instrument under her hand and seal, in which she
agrees that a person as trustee shall take $4000 of United States bonds
left by the testator for her use for life, and invest them in other United
States bonds, the interest thereon to be paid to her during her life, and the
principal to be paid to the party claiming the remainder, which agree-
ment is executed, and no fraud has been practiced upon her to induce the
execution of the agreement thus made, she will be thereby estopped from
afterwards denying the rights of the party so claiming the remainder,
and can not maintain replevin against the trustee for the recovery of the
substituted bonds. Welsch v. Belleville Savings Bank, 191.
AS TO PRIOR MORTGAGE.
3. A mortgagor, when sued in ejectment, can not set up a prior mort-
gage by him to another as an outstanding title. He is estopped to allege
that such mortgage is of force against the plaintiff. Fisher v. Milmine
et al. 328.
Constructing sewer over private property.
4. Acquiescence — estoppel to claim compensation. Where the owner of
land has full knowledge of the location of a street over the same, or of
the construction of a sewer through the same by municipal authorities,
and interposes no objection to the same, and takes no steps to prevent it,
after the construction of the improvement he will be estopped from
making any claim for compensation. Village of Hyde Park v. Borden
et al. 26.
As APPLIED TO MUNICIPAL CORPORATIONS.
5. The doctrine of estoppel in pais applies to municipal corporations,
but the public will only be estopped, or not, as justice and right may
require. Any positive acts by municipal officers which may have in-
duced the action of the adverse party, and where it would be inequitable
to permit the corporation to stultify itself by retracting what its officers
have done, will work an estoppel. Martel v. City of East St. Louis, 67.
EVIDENCE.
Judicial notice.
1. As to population of counties. In ascertaining to what class a county
may belong, under a classification of counties as required by the consti-
tution, for purposes of regulating the fees and compensation of certain
officers, this court will take judicial notice as to what is the population
of a county according to the preceding United States census. Worcester
National Bank v. Cheney, 430.
index. 655
EVIDENCE. Judicial notice. Continued.
2. What laws considered public laivs, of which the courts will take judicial
notice. See STATUTES, 1.
Parol evidence.
3. When bill of sale is given — parol evidence to show there was a warranty.
Where a bill of sale of a lot of ice does not show to whom the sale was
made, the quantity sold, nor the price per ton, but simply that the ice
was sold by the vendor, describing its location and stating that it was to
be removed between the date of the instrument and the first of April
following, it will not constitute a contract between the parties without
the aid of extrinsic evidence, and parol evidence is admissible to show
that the sale was made with a warranty, on a plea of failure of consid-
eration to an action on the note given for the price. Ruff et al. v. Jarrett,
475.
4. To show failure of consideration. In a suit upon a promissory note
given for the price of personal property purchased, parol evidence of a
warranty of the property and a breach of the warranty is admissible,
and this has never been held to vary, contradict or change the terms of
the note, which is but a part of the agreement. Ibid. 475.
5. To prove title to land. Conveyances of land can not be established
by verbal testimony, except in the case of lost or destroyed deeds. Slate
v. Msenmeyer, 94.
Secondary evidence — lost deed.
6. Of notice to produce the deed. Where the proof shows that the op-
posite party has not a deed in his possession, no notice to him to produce
the same is necessary, to admit parol evidence of its contents. Proof of
the loss of the deed is sufficient. Taylor v. Mclrvin, 488.
7. Diligence of search for lost deed. Where the grantor of land in the
State of Iowa, after the delivery of the deed in this State with covenants
of warranty, took the deed with him to have the same recorded in the
proper county in Iowa, and on his return said it had been recorded, and
some six months afterwards, when informed that it had not been recorded,
stated that it was on file with the recorder, but that he had forgotten to
pay the fees for recording, and on the trial he testified he had left the
same with the recorder in Iowa, whose name he thought was Morgan,
and the opposite party produced an affidavit of one Beach, the then re-
corder, stating that no such deed was on file, it was held, that there was
no error in admitting secondary evidence of the contents of the deed.
If the grantor had informed the grantee, or his agent, in apt time of the
name of the person with whom he left the deed, it may have been that
proper diligence would have required the grantee to have made inquiry
of such person, but giving his name on the trial was too late to require
this. Ibid. 488.
656 INDEX.
EVIDENCE. Secondary evidence — lost deed. Continued.
8. Loss of deed may be shown by affidavit. As to matters directly in
issue, the testimony of witnesses must be taken in open court or upon
deposition, so as to afford an opportunity of cross-examination, but as to
some collateral matters, among which is the loss of a document, affidavits
taken ex parte are competent evidence. Taylor v. Mclrvin, 488.
Admissions.
9. As to admissions of privies in estate. On bill filed to contest the
validity of a will, the declarations and admissions of a deceased devisee
are admissible in evidence against another devisee who has succeeded by
will or devise to the interest of the deceased devisee, on the ground of
privity in estate. Mueller v. Rebhan, 142.
10. The declarations and admissions of privies in estate made before
parting with their interest, are admissible in evidence against the parties
succeeding to their estate. Ibid. 142.
Admission op affidavit for continuance.
11. Of the effect to be given thereto. The court is not bound to admit in
evidence, on the trial, an affidavit for a continuance which has been
admitted to avoid a continuance, without regard to the competency of its
contents as evidence. When asuch affidavit, if admitted, could not have
affected the general result, upon a trial, there is no error in excluding
the same. Slate v. Eisenmeyer, 96.
12. The admission of an affidavit to avoid a continuance does not make
facts therein stated, which are improper evidence, admissible on the
trial. The true test is, could the witness, if present, be permitted to
testify to the facts. If not, they should be excluded from the jury, thus
putting the affidavit on an equality with the witness. Ibid. 96.
13. Where a husband, under a writ of possession against him, sur-
rendered the possession of land to the plaintiff, and leased the same
premises of the plaintiff, and a grantee of the wife of the lessee, when
sued in forcible detainer, in an affidavit for a continuance, stated that he
expected to prove by the wife, under whom he claimed, that she purchased
the land in dispute from the " Chalfin heirs." who gave her peaceable
possession, and that she, on her conveyance, gave the defendant peace-
able possession, which was long before the commencement of the suit:
Held, that the facts stated were too indefinite and uncertain to make the
affidavit evidence. If the possession existed in the "Chalfin heirs" when
the grantor's husband leased the premises, that should have been stated.
Ibid. 96.
Rumors.
14. On the question of the safety of an engine and the employment
of the most approved modern appliances to prevent the escape of fire
from the smoke stack, the testimony of a master mechanic who examined
INDEX. 657
EVIDENCE. Rumors. Continued.
the same directly after a loss by fire, as to its safe and sound condition,
whose testimony is not impeached, can not be overcome by evidence of
rumors among the employees of the road that the engine was worn out
• and not safe. Chicago and Alton Railroad Co. v. Pennell, 448.
Relevancy.
15. In a suit on a policy of insurance, by a wife, to recover for the loss
of hay, etc., embraced in the policy, the insurance company offered in
evidence a deed of assignment, made by the husband of the plaintiff, of a
lot of hay and other property, which the court refused to admit : Held,
no error, as the evidence was wholly irrelevant, without proof that the
property in the deed of assignment was the same included in the policy.
Germania Fire Ins. Co. v. McKee, 494.
Proof op disputed boundary.
16. By prior deed. In ejectment, where there is a dispute as to the
boundary of a tract of land, contained in a grant of four hundred acres,
a prior deed embracing a part of the land involved is admissible in evi-
dence, whether the defendant is able to connect himself with such deed
or not, as tending to shed some light upon the question of the location of
the grantee's boundary line from the points named in the deed, and fix
the land conveyed by subsequent deeds of other parties, and as explain-
ing what part of a larger tract was conveyed by a prior owner to one
person, and what part to another, under whom the defendant claims.
Stump/ v. Osier hage, 115.
In possessory actions.
17. Admissibility of title papers, and for what purpose. A plaintiff in
a possessory action, where there is no apparent actual possession of a
portion of the premises, may, for the purpose of showing the extent of
his possession, put in evidence the deeds or title papers under which he
claims. This doctrine is held applicable alike to actions of trespass
and forcible detainer. But this principle has never been so extended as
to permit a defendant in forcible detainer to introduce such papers to
show an adverse title in himself. Slate v. JEJisenmeyer, 96.
Pecuniary circumstances op plaintiff.
18. Whether proof thereof allowable. In an action on the case to re-
cover for an injury occasioned by the negligence of the defendant, the
latter offered to prove what were the pecuniary circumstances of the
plaintiff, but it was held such evidence was not admissible. Eagle Packet
Co. v. Defries, 598.
Degree of proof required.
19. In civil suit. The jury in a civil suit are only required to believe
a state of fact from a preponderance of the evidence, and it is error to
instruct them that they must be satisfied by a preponderance of the evi-
42—94 III.
658 INDEX.
EVIDENCE. Degree of proof required. Cvnt
dence, as imposing a higher degree of proof than the law requires. Ruff
et al. v. Jarrett, 475.
As TO ORDER OF INTRODUCING PROOF.
20. What proof allowable by a party who has closed in chief. See
PRACTICE, 1, 2.
Of FURTHER PROOF OF FACTS CONCEDED.
21. The practice in reference thereto. Same title, 3.
Disregarding impeached witness' testimony.
22. Expression of the rule in that regard. See WITNESSES, 8.
Proof of title in ejectment.
23. By possession — claiming the fee. See EJECTMENT, 3.
Preserving the evidence.
24. In contested election cases — in order to sustain the decree. See ELEC-
TIONS, 6.
Evidence in criminal cases. See CRIMINAL LAW, 23 to 29.
EXCEPTIONS AND BILLS OF EXCEPTIONS.
When necessary.
1. If, where the proceedings of a town meeting authorizing the em-
ployment of counsel are offered in evidence against the town, the record
fails to show that they were not signed by the moderator, or that any
objection was made on that ground, and they are admitted, it will be
presumed that they were properly verified and admitted, unless the con-
trary is shown by bill of exceptions. Town of Mt. Vernon v. Patton, 65.
Bills of exceptions.
2. Reference to evidence in parenthesis. Where a bill of exceptions
makes reference to certain matters as having been given in evidence, and
directs, in parenthesis: ("Here insert" certain specified sections of the
statute of another State), it is proper for the clerk, in making up a trans-
cript of the record, to incorporate therein the matter so designated.
Garrick et al. v. Chamberlain, 588.
EXECUTOR DE SON TORT.
How he may discharge himself. See ADMINISTRATION OF ESTATES,
1,2.
FEES AND SALARIES.
Classification of counties.
1. For purpose of regulating fees, etc. — power of the legislature. It is not
competent for the legislature, in attempting to classify the several coun-
ties in the State, under the constitutional provision in that regard, for
index. 659
FEES AND SALARIES. Classification of counties. Continued.
purposes of regulating the fees and compensation of certain officers, to
place counties in the several classes, except it be according to population,
as limited by the constitution; — and if a county shall be placed in a class
to which it does not belong, according to the basis of population, the act
will be unconstitutional and void. Worcester National Bank v. Cheney,
430.
Fees for making transcript of record.
2. In counties of the second class. Clerks of courts in counties of the
second class, as classified under the constitution for purposes relating to
the fees and compensation of certain officers, are limited by the statute to
the rate of ten cents per one hundred words as fees for making trans-
cripts of records in their offices, and where a party procures his trans-
cript to be made himself, he will be entitled to no greater fees therefor
than the clerk could have properly charged for the same service. Ibid.
430.
3. When transcript prepared by party himself. Although a party bring-
ing a cause to this court, may himself procure the transcript of the record
in the court below to be made, without the aid of the clerk of that court,
yet if the clerk shall certify thereto as being correct, and the transcript
thus prepared is filed in this court, the party so preparing the transcript
at his own expense will, if successful in this court, be entitled to his costs
therefor the same as if it had been prepared by the clerk. Ibid. 430.
Compensation of county officers.
4. And herein, as to clerk hire and expenses. The constitution has fixed
the maximum compensation that can be allowed to county officers in the
counties of each class; and it provides that where the county board has
fixed the compensation, it shall neither be increased nor diminished
during the term of office, and that the General Assembly shall regulate
the fees so as to reduce them to a reasonable compensation for services
actually rendered. Cullom, Governor v. Dolloff et al. 330.
5. Two things are apparent from these constitutional provisions — first,
that a compensation shall be unalterably fixed for the official term of the
officer; and second, that the county board shall fix the clerk hire and
expenses of the office. But it was not intended that for clerk hire and
expenses more should be fixed than was necessary, but, on the contrary,
it was intended to effectually prohibit anything from being paid beyond
what was actually necessary. Under these provisions, a county board is
powerless to bind the county to pay more than what the clerk hire and
expenses reasonably and necessarily cost. But, in any event, the board
should allow the officer to retain out of fees collected a sufficient sum to
pay a reasonable price for necessary clerk hire, fuel, stationery, etc.,
actually paid or purchased, but no more. Ibid. 330.
660 INDEX.
FEES AND SALARIES.
Compensation of county officers. Continued,
6. Amount of fees county officer may retain for clerk hire, etc. A circuit
clerk or other county officer can retain from the fees received by him
only the amount fixed for his compensation, and such othe*1 reasonable
Sums as he has actually paid out for necessary clerk hire, stationery, fuel
and other expenses of the office, no matter at what sum the county board
may have allowed him for clerk hire, etc. The county board is prohibited,
by both the constitution and the statute, from allowing a county officer
any sum for clerk hire, stationery, fuel, etc., in excess of that actually
paid for the same, and as such excess is to pay for services not rendered,
it indirectly increases his compensation. Cullom, Governor v. Dolloff etal.
330.
FEIGNED ISSUE OUT OF CHANCERY. See CHANCERY, 5, 6.
FELONY.
What is a felony.
As distinguished from a misdemeanor. See CRIMINAL LAW, 7.
FOREIGN INSURANCE COMPANIES.
Subject to special burdens.
Power of the legislature — and of the imposition of a license fee in cities.
See LICENSES, 2 to 6.
FORMER ADJUDICATION.
AS A BAR TO SUBSEQUENT SUIT.
1. Where the vendor of land, after the full payment of the principal
of the purchase money, tenders the vendee a deed, demanding the pay-
ment of interest which he claims to be due on the purchase money, and,
on refusal to pay the same, brings suit to recover such interest, and, on a
trial, fails, and judgment is rendered in bar against him, that judgment
will be conclusive evidence against him that the vendee owes him no
interest, in all courts, whether of law or equity, and he can not defeat a
bill for specific performance by his vendee by setting up in defence that
the vendee owes him interest. Noyes et al. v. Kern, 521.
FORMER DECISIONS.
Trusts — re-investment of title.
1. In Harris v. Cornell, 80 111. 67, the remark (referring to the case of
Hardin v. Osborne,) that it had been held that where the purposes of a
trust had been accomplished, the owner of the trust became by operation
of law reinvested with the legal title and could sue in ejectment, was
unadvisedly made, as the opinion in that case was withdrawn on a
INDEX. 661
FORMER DECISIONS. Trusts — re-investment of title. Continued.
rehearing granted. In McNab v. Young et al. 81 III. 11, language of like
import was used, upon the authority of the same case. Kirkland v. Cox
et al. 400. See TRUSTS.
Jurisdiction of circuit courts.
2. Misdemeanors. In Ferguson v. The People, 90 111. 510, it was held that
the circuit courts did not have original jurisdiction in cases of assault
and assault and battery, it being conferred by statute upon justices of
the peace. But it is not competent for the legislature to deprive the cir-
cuit courts of their original jurisdiction conferred by the constitution
in all cases in law and equity, and in this regard that case is overruled.
Wilson v. The People, 426. See JURISDICTION.
Special taxation by cities.
3. For making local^ improvements. The cases of the City of Chicago v.
Lamed, 34 111. 203, and the City of Ottawa v. Spencer, 40 id. 211, holding
a special assessment for local improvements on the basis of the frontage
of lots on the streets to be improved, were invalid, were made under the
peculiar limitations of the constitution of 1848, which are omitted in that
of 1870, and hence these cases are no longer authority on the subject.
White v. The People ex rel. City of Blooming ton, 604. See TAXATION, 17
to 22.
FORMER RECOVERY.
When a bar to subsequent suit.
1. A recovery in trespass by a person in the peaceable possession of
land, who is not the owner and is not a tenant of the owner, for dispos-
sessing him, and injuring the land, is a bar to any subsequent suit by
the real owner for the injury to the soil. Illinois and St. Louis Railroad
and Coal Co. v. Cobb, 55.
FRAUD.
Fraudulent warranty.
1. Statement of fact that the vendor ought to have known to be false. If
the vendor of a lot of ice makes a positive assertion to the purchaser that
he had measured the ice and there was a specified quantity, and the
statement was untrue, the vendor must have known its falsity, or at least
was bound to know, and if the purchaser relied upon the truth of the
assertion when it was untrue, and purchased in consequence thereof and
suffers damages thereby, he will be entitled to recover damages of the
vendor either in a suit against the vendor, or in a suit by the vendor to
recover the purchase money. Ruff et al. v. Jarreit, 475.
2. A warranty may be false, and not onjy false but known to be so
by the vendor, and when thus made, it is denominated a fraudulent war-
ranty, and in such a case it is error to so instruct the jury as to make the
662 INDEX.
FRAUD. Fraudulent warranty. Continued.
whole case turn upon the question of fraud, excluding all consideration
of a warranty. Ruff et al. v. Jarrett, 475.
Reliance on fraudulent statements.
3. How far necessary, in order to avail of the fraud. In an action upon
a note given for ice purchased, where fraud and a breach of warranty are
set up in defence, it is not correct to instruct the jury that even if the
statements made were untrue as to the quantity of the ice, the purchaser
could not complain unless he relied solely on such statements as being
true in making the purchase. It is sufficient if he would not have made
the purchase but for such statements, though he may in part have relied
on other facts. Ibid. 475.
FRAUDULENT CONVEYANCES.
Advancement to a child.
1. When grantor retains enough to pay his debts. A voluntary convey-
ance of lands by a father to his sons, by way of advancement, will not
be fraudulent as to creditors of the father, if he retains ample means
and property to pay all debts and liabilities. Fanning et al. v. Russell
et al. 386.
FREEHOLD.
What constitutes a freehold. See APPEALS AND WRITS OF ERROR,
6.
GAMING.
Limitation of action by loser.
Under sec. 132 of the Criminal Code. See LIMITATIONS, 3.
GIFT.
What constitutes a gift.
1. The taking of a note by a father in his daughters name as payee, with
the intention of making a gift to the daughter, gives the latter no vested
interest in the note before its delivery to her, but it will remain the ab-
solute property of the father. Fanning et al. v. Russell et al. 386.
Recalling a gift.
2. When executed. A mere gift or voluntary agreement is as binding
as any other undertaking, when executed. If a party voluntarily agrees
to make a settlement of the principal of certain bonds upon another,
upon the delivery of the agreement in writing, and transfer of the bonds
in pursuance thereof, leaving nothing further to be done to complete the
gift, it will be to all intents and purposes an executed agreement, and
the gift can not be revoked. Welsch v. Belleville Savings Rank, 191.
INDEX. 663
GRANT.
Use of streets for railway purposes.
Whether confined to the grantee. See CONVEYANCES, 3.
GUARDIAN.
Guardian and administrator.
1. United in the same person — in which capacity liable. Where an ad-
ministrator of an estate is also guardian for the sole heir and distributee,
and closes the administration of the estate substantially, though he
makes no report of the same to the county^court, and charges himself in
a private book with the funds due the heir, and pays the necessary ex-
penses of his ward and collects the rents as guardian, and a reasonable
time has elapsed for completing the administration of the estate, his
sureties as administrator will be released, and his sureties as guardian
will be liable for the funds which came into his hands in the capacity of
administrator. Bell et al. v. The People, use, etc. 230.
2. Where a person sustains the dual relation or trust of administrator
and of guardian of the sole distributee, and before his death makes no
settlement of his accounts, or does any other act showing an election as
to the capacity in which he holds the unexpended funds of the estate in
his hands, it will be presumed after a reasonable time for settling the
estate has elapsed, and especially after the administration of the estate
has been completed, that he held such funds as guardian, and his sure-
ties as guardian alone will be liable for the same. An order of the
county court transferring the funds in his hands as administrator is not
indispensable in such case to charge his sureties as guardian. Ibid. 230.
HEALY SLOUGH
Is not a navigable stream. See NAVIGABLE STREAMS, 1.
HIGHWAYS.
Dedication.
1. As to evidence thereof. In order to constitute a dedication of land
for a public highway, it is not essential that the intention be evidenced
by words, either written or spoken. If the acts of the party indicate an
intention to dedicate the land to the public use, it is sufficient, and if the
dedication is accepted by the public, as by use and travel, it is complete.
It is true the acts may be explained by an agreement or other circum-
stances rebutting the intent to dedicate, but if the acts are unexplained
they will prove a dedication. Wragg et al. v. Penn Township, 11.
Failure to open road in five years.
2. It becomes vacated thereby. Unless a public highway is opened for
its entire length within five years from the date of its establishment, it is
vacated by operation of the statute, and where there is evidence tending
664 index.
HIGHWAYS. Failure to open road in five years. Continued.
to show that a part of a highway laid out had not been opened within five
years, in a suit for obstructing the same the defendant has a right to have
the jury instructed that unless they believe from the evidence the entire
road was opened within five years after its establishment it was vacated.
Wragg et al. v. Penn Township, 11.
3. Obstructing highway — effect thereof — and right of removal. "Where a
highway after its establishment has once been opened for travel, no sub-
sequent obstruction can be considered in determining whether the entire
road has been opened within the five years, and such obstruction can be
removed, without notice, by the officer or any person whose travel is in-
terrupted by it. Ibid. 11.
Vacating street.
4. Land reverts to original owner. Where a public street or avenue is
vacated by competent authority, the land embraced within its limits will
revert to the original owner who dedicated the same. Village of Hyde
Park v. Borden et al. 26.
Use op streets for railway purposes.
Whether confined to the grantee — a grant construed. See CONVEY-
ANCES, 3, 4.
Obstructing highways.
Of the penalty therefor — punishment under two statutes. See CRIMINAL
LAW, 10.
HOMESTEAD.
Release.
1. Sufficiency of acknowledgment. A certificate of acknowledgment of
a release of a homestead by a husband and wife, for the purpose of having
a levy made thereon, that on a certain day came before the officer A, and
B, his wife, to him known to be the identical persons who executed the
above release and waiver, and acknowledged that they executed the same
freely and voluntarily for the uses and purposes therein expressed, and
that the said B, wife of the said A, " after having been informed by me
of her rights under the homestead law and of the effect of this instru-
ment, on being examined separate and apart from the said husband,
acknowledged that she had executed the same freely, voluntarily and for
the purpose of waiving homestead and her dower in the same, and with-
out the compulsion of her said husband, and that she does not wish to
retract," is insufficient to release the homestead as to the husband, for
the reason that no such intention is shown in the acknowledgment, but is
good as to the wife. Trustees of Schools v. Hovey et ux. 394.
Lien of collector's bond.
2. Does not affect homestead. The lien created by statute upon the real
estate of a collector of the revenue, who gives an official bond, does not
in any way affect the homestead estate of such collector. Ibid. 394.
INDEX. 665
ILLINOIS CENTRAL RAILROAD CO.
Exemption of their lands from taxation. See TAXATION, 1 to 4.
INDICTMENT. See CRIMINAL LAW, 1 to 6.
INJUNCTIONS.
To restrain collection of taxes. See TAXATION, 5.
Measure of damages on dissolution. See MEASURE OF DAMAGES,
2,3.
INJUNCTION BOND.
Extent of liability of sureties. See MEASURE OF DAMAGES, 3.
INSTRUCTIONS.
Of their requisites.
1. Should be accurate — when the evidence is conflicting. Where the evi-
dence is conflicting as to the controverted facts and issues in a case, it is
essential that the several instructions should be accurate. Ruff etal.v.
Jarrett, 475.
2. Must be based on evidence. Although an instruction may contain a
correct proposition of law, yet, if there is no evidence of the facts upon
which it is predicated, there is no error in refusing it. Germania Fire
Ins. Co. v. McKee, 494.
3. Instruction as to negligence — omission to state the rule of comparative
negligence. In an action to recover upon the alleged negligence of the
defendant, the question of contributory and comparative negligence was
presented on the proofs. In a series of instructions for the plaintiff, the
first laid down the rule on that subject fully and accurately, — the second
merely defined negligence, without reference to the rule as to compara-
tive negligence. It was held, the second instruction merely laid down an
abstract principle of law, and. it was not essential it should repeat the
rule concerning comparative negligence, which was fully given in the
preceding instruction. Hayward v. Merrill, 349.
4. Should not ignore question of care on part of plaintiff. In an action
against a railroad company to recover the value of a building erected in
close proximity to the track, and its furniture, which are burned through
the negligence of the company, an instruction placing the right of re-
covery alone upon the defendant's negligence, and which entirely ignores
the question of due care on the part of the plaintiff in trying to save the
property destroyed or some part thereof, is erroneous. Chicago and Alton
Railroad Co. v. Pennell, 448.
Instruction construed.
5. As to whether it shuts out defence. An instruction that the responsi-
bility of a railroad company as a common carrier continued from the
666 INDEX.
INSTRUCTIONS. Instruction construed. Continued.
time stock were entrusted to it for transportation until the same reached
their destination, in a suit to recover of the company for a loss and
injury to the animals, is not open to the objection that it asserts an abso-
lute liability, without regard to any defence set up by the defendant.
Mc Collom et al. v. Indianapolis and St. Louis Railroad Co. 534.
INSURANCE.
Of the application.
1. Effect of false statements in application, made by agent. Where the
application for an insurance is prepared, signed and presented by the
assured, the insurer has the right to rely upon the truth of the statements
therein contained; and if the statements are false in a material point,
the insurer may refuse to be bound by the policy. Germania Fire Ins. Co.
v. McKee, 494.
2. But where the assured makes a full and complete disclosure of the
title and situation of the property to the agent of the insurance company,
and the agent deliberately writes false answers, to be signed by the
, assured, saying it does not amount to anything, the company will be
estopped from denying its liability. Ibid. 494.
Collusion between assured and company's agent.
3. Of evidence thereof. Where an insurance agent, having full power
to issue policies of insurance and to grant special permits, having issued
a policy, some six days afterwards cancelled the same, and issued a new
one, and granted a special permit to the assured, which he failed to report
to his principal, it was held, that evidence of his neglect to report the
same, without an offer to show collusion with the assured, or any evidence
to connect the assured with the omission, was properly refused on the
trial of an action on the new policy, and that such evidence did not tend
to show a collusion. Ibid. 494.
INSURANCE COMPANIES.
Of foreign companies.
Subject to such burdens as the legislature may choose to impose — and herein,
of the power in cities to impose a license fee. See LICENSES, 2 to 6.
INTOXICATING LIQUORS.
Liability for injury resulting from their sale.
1. Where another agency intervenes. Where an intoxicated person in
going to his home in the night has to cross a railroad, and next morning
is found on the track, killed by being run over by a train of cars, the
intoxication will be held the proximate cause of his death, and the party
furnishing him the liquor, and the owner of the premises where the
liquor is furnished to him, will be liable to his widow, under the statute,
for injury to her means of support. Schroder v. Crawford, 357.
INDEX. 667
INTOXICATING LIQUORS.
Liability for injury resulting from their sale. Continued.
2. It is not the intention of the statute that the intoxicating liquor
alone, exclusive of any other agency, shall do the whole injury for which
a civil remedy is given. The statute was designed for a practical end
and to give a substantial remedy, and should not be so construed as to
defeat the purpose designed. Schroder v. Crawford, 357.
JEFFERSON AND PERRY COUNTIES.
Of the boundary line between them. See BOUNDARIES, 1, 2, 3.
JUDGMENTS.
In ejectment.
1. Sufficiency of judgment. Where the plaintiff in ejectment claims to
own the premises in fee, and the verdict finds the defendants guilty, and
that the plaintiff is the owner in fee of the premises described in the dec-
laration, a judgment that the plaintiff is entitled to and shall have and
recover of and from the said defendants the possession of the premises
described in the declaration, to-wit, etc., though technically defective,
when considered in connection with the verdict is sufficient to show the
estate recovered, and is substantially good. Mapes et al. v. Scott et al. 379.
JUDICIAL NOTICE.
What considered as public laws. See STATUTES, 1.
As to population of counties. See EVIDENCE, 1.
JUDICIAL SALES. See PURCHASERS, 2.
JURISDICTION.
Of the circuit courts.
1. Misdemeanors. Section 12 of article 6 of the constitution provides
that " the circuit courts shall have original jurisdiction of all cases in
law or equity, — so those courts having original jurisdiction in cases of
misdemeanors, as, for willfully interrupting or disturbing an assembly
of people met for a lawful purpose. Wilson et al. v. The People, 426.
2. Former decision. In Ferguson v. The People, 90 111. 510, it was held that
the circuit courts did not have original jurisdiction in cases of assault
and assault and battery, it being conferred by statute upon justices of the
peace. But it is not competent for the legislature to deprive the circuit
courts of their original jurisdiction conferred by the constitution in all
cases in law and equity, and in this regard that case is overruled. Ibid.
426.
In contested election case.
3. In respect to the office of alderman in a city. See ELECTIONS, 2.
668 INDEX.
JURISDICTION. Continued.
On change of venue.
4. Of the jurisdiction of the court to which the cause is removed. See
VENUE, 3.
JURY.
Competency.
1. In what manner to be questioned. This court can not inquire into the
competency of a juror, where the record fails to show that the question
of his competency was presented to the court below by challenge for
cause or otherwise, the bill of exceptions simply showing that after the
juror was examined touching his competency, he was challenged peremp-
torily. Wilson v. The People, 299.
2. Competency of a juror as having formed an opinion. A person called
as a juror in a criminal case where the defendant was indicted for mur-
der, stated, in response to questions touching his qualifications as a
juror: " I have read the newspaper accounts of the commission of the
crime with which the defendant is charged, and have also conversed with
several persons in regard to it since coming here, and during my attend-
ance upon this term of court, — do not know whether they are witnesses
in the case or not — do not know who the witnesses in the case are. From
accounts I have read and from conversations I have had, I have formed
an opinion in the case, and would have an opinion in the case now if
the facts should turn out as I heard them, and I think it would take
some evidence to remove that opinion. Would be governed by the evi-
dence in the case, and can give the defendant a fair and impartial trial
according to the law and the evidence." A challenge for cause in behalf
of the defendant having been denied, the juror was challenged perempto-
rily. It was held, the juror was competent. The opinion formed seems
not to have been decided, but one of a light and transient character,
which, at no time, would have disqualified the juror from serving. But
aside from this, all objection as to his competency in respect to any
opinion he seems to have formed was removed by the statute. Rev. Stat.
1874, 633, sec. 14. Ibid. 299.
Peremptory challenges.
3. Effect of peremptory challenge where challenges not exhausted. In this
case the defendant, in the selection of the jury by whom he was tried,
exhausted only two of his peremptory challenges, so that even if the juror
was erroneously held to be competent, and the defendant thus compelled
to accept him or to challenge him peremptorily, no harm could have re-
sulted, and the error would not be ground of reversal. Ibid. 299.
Exemption op active militia.
4. Constitutionality of the act. The provision of the act of May 28,
1879, entitled "An act to provide for the organization of the State
INDEX. 669
JURY. Exemption of active militia. Continued.
militia," etc., which exempts an active member of a company of the State
militia from serving upon juries, is a valid and constitutional law. Dunne
v. The People, 120.
Filling panel of petit jurors.
5. Of the mode — effect of irregularity — how taken advantage of— waiver.
Where a sufficient number of the jurors drawn and summoned do not
answer to their names when called, it is irregular to fill the panel by
directing the sheriff to summon others in the place of the absentees.
But this irregularity will not render the organization of the panel void.
Mueller v. Rebhan, 142.
6. Where the panel of the petit jury is filled not in accordance with
the statute, but by the selection of the sheriff under the order of the
court, advantage of the irregularity can only be taken by challenge to
the array. If a party enters upon the business of selecting a jury from
such panel, he will waive his right to challenge the array and any ob-
jection he may have as to the irregularity of the organization of the
panel, and he can not object to any juror so selected to fill the regular
panel, as though they were talesmen. Ibid. 142.
Service on jury within a year.
7. The fact that a juror has served on a jury within a year prior to
being called in a case does not apply to those on the regular panel, but
only to those called as talesmen. The fact that a juror has been irregu-
larly put upon the panel makes no difference in this respect, as, without
a challenge to the array, he must be. treated as properly on the panel.
Ibid. 142.
Furnishing list of jurors.
8. To defendant in criminal case. See CRIMINAL LAW, 22.
LAW AND FACT.
AS TO WEIGHT OF EVIDENCE.
1. For the jury, not the court. On the trial of one indicted for perjury
in making an affidavit of the residence of a person to enable him to vote,
the court instructed the jury that the declarations of the person voting,
made to the accused, as to where he resided, or what place he called his
home, or where he got his washing done, gave no such knowledge as the
law required upon which to enable the accused to base an affidavit as to
the voter's residence, etc.: Held, that the instruction was erroneous, in
invading the province of the jury by telling them the evidence was inad-
equate to create an honest belief in the accused. Johnson v. The People,
505.
2. An instruction to the jury, on the trial of a contest of a will for
mental incapacity in the testator, is erroneous if it assigns more weight
670 INDEX.
LAW AND FACT. As to weight of evidence. Continued.
to the testimony of nurses and attendants than to the opinion of the subscrib-
ing witnesses. The jury and not the court must judge of the weight to
be given to each part of the proofs in the case. Brown ei al. v. Riggin
et al. 560.
Negligence.
3. Negligence is the opposite of due care and prudence. It is the
omission to use the means reasonably necessary to avoid injury to others,
and is not a legal question, but one of fact to be proved like any other
question. It is error to tell the jury that certain acts constitute negli-
gence. Chicago and Alton Railroad Co. v. Pennell, 448. .
LEASE.
Mining lease.
Construed, as to right of lessee to remove supports for surface land. See
MINES AND MINING, 5.
LICENSES.
License by de facto officers.
1. How far a protection. Where a person takes out a license to keep
a dram-shop within a city, pursuant to an ordinance of the city, the
license being issued by de facto officers of the corporation, and pays into
the city treasury the sum exacted therefor, and gives the proper bonds,
before the city can maintain an action against him for the penalty for
carrying on the business without a license, it must revoke his license and
return him his money. Martel v. CUy of East St. Louis. 167. See COR-
PORATIONS, 5 to 8.
Foreign insurance companies.
2. Poiver of municipal authorities to charge license fee. on foreign insurance
companies transacting business in city. Where a city by its charter is spe-
cially authorized to regulate agencies of all insurance companies, and to
license and regulate agents of all such insurance companies doing business
within the city, an ordinance of such city that all corporations, companies
or associations not incorporated under the laws of this State, engaged in
the city in effecting life or fire insurance, shall pay to the city treasurer
the sum of two dollars upon the one hundred dollars, and at that rate
upon the amount of all premiums, during the half year ending on the first
days of January and July, which shall be received or agreed to be paid
for insurances effected in the city, which rates, when collected, shall be
set apart for the support and maintenance of the fire department of the
city, and requiring every acting agent of such corporations, etc., on or
before the 15th day of February, 1875, and on the 15th days of January
and July thereafter, to render a full, true and just account, verified by
his oath, of all premiums received or agi-eed to be paid during the half
INDEX. 671
LICENSES. Foreign insurance companies. Continued.
year ending on such days, and to pay to the treasurer of the city the
amount with which such company shall be so chargeable under the ordi-
nance, and fixing a penalty of $200, enforcible by fine and imprisonment
on the agent, for a failure to make such report, or to pay the sum due at
the proper time, is valid and binding, and is not in conflict with the pro-
viso of section 30 of the Insurance law of the State or with any constitu-
tional provision. Walker v. City of Springfield, 364.
3. Limitation upon power of city to tax agencies. Independent of the
proviso of section 30 of the Insurance law there would be no limit to the
power of the city to impose fees for a license on insurance companies,
unless it might be that the ordinance imposing the same should be reason-
able. But this section operates as a limitation on the power of the city
to impose more than two per cent on the gross receipts of the agents of
such companies. Ibid. 364.
4. The legislature may impose such burthens on them as it pleases for the
privilege of doing business in this State. Foreign corporations are only per-
mitted to do business in this State by comity or consent, express or implied.
The legislature has the right to impose such burthens, terms and condi-
tions as it chooses on such bodies before they can do business in the
State, or may prohibit them therefrom altogether. Ibid. 364.
5. License fee is not a tax. The provision of section 30 of the Insurance
law requiring that the net income of insurance companies shall be re-
turned to the assessor for general taxation at the same rate as other prop-
erty, to be in lieu of all town and municipal licenses, and the proviso
that the provisions of the section shall not be construed to prohibit cities,
having an organized fire department, from levying a tax or license fee not
exceeding two per cent on their gross receipts, to be applied exclusively
to the support of the fire department, do not subject such companies to
double taxation. The sum that may be charged by the cities is in no just
sense a tax, but only a fee paid for a license or privilege of transacting
business within such cities. Ibid. 364.
6. License fee may be by percentage on business done. The fact that a
certain percentage on the amount of the gross receipts is required to be
paid instead of a gross sum, for the privilege of carrying on business in a
city, does not render it a tax; but this is only an equitable mode of as-
certaining the amount of the license fee, and the fact that no permit or
license is required to be issued does not affect the question. Ibid. 364.
LIENS.
Under collector's bond.
1. Repealing act of 1872 — its effect on existing rights. The act of 1872
repealing section five of the Revenue act of 1853, which made a collec-
672 INDEX.
LIENS. Under collector's bond. Continued.
tor's bond, when approved and recorded, a lien on all the real estate of
the collector, provides that the repeal of the act of 1853 shall not impair
any existing rights. Richeson et ah v. Crawford et ah 165.
2. Under the act of 1853, now re-enacted as section 134 of the Revenue
law of 1872, the approval and recording of a collector's bond created a
lien upon the real estate of the collector in favor of the State and county
for moneys collected by him, which can not be defeated by any sale by
him to another. Ibid. 165.
3. Remedy — when enforcible only in equity. A court of equity is the
appropriate and indeed the only forum in which to enforce the lien given
by the statute upon the real estate of a collector of taxes, as against sub-
sequent purchasers from him acquiring the legal title before judgment
against him. Ibid. 165.
4. Lien of collector's bond does not affect the homestead. See HOME-
STEAD, 2.
Mechanic's lien.
5. Affects only the title of the person contracting. Where the owner of
land gives a bond or contract for a deed to the purchaser, who procures
a building to be erected thereon, the lien of the mechanic attaches upon
the purchaser's interest only, and the vendor can not be required to part
with his title until he receives full payment of his purchase money. The
vendor in such case does not occupy the position of a prior incumbrancer
within the meaning of sec. 17 of the Mechanics' Lien act. Hickox v.
Greenwood, 266.
6. Extent of the lien. The statute gives a lien by virtue of a contract
with the owner of the land, and the second section extends this lien to
any interest such owner may have at the time of the contract. If he has
only a bond for a deed, he can not by any act of his impair the title of
his vendor or give the mechanic or material-man any better title than he
himself had at the time he made the contract. Ibid. 266.
7. When vendor makes a loan after building contract. Where a vendor
of land who gives a bond for a deed to be made on payment of the pur-
chase money, after the purchaser has contracted for the erection of a
building upon the premises, loans the purchaser money and gives a new
bond for a deed to be made upon the payment of the original price and
the sum thus loaned, the vendor, as to the mechanic who erects the build-
ing, will in equity occupy the position of a subsequent incumbrancer as
to the sum loaned, and be postponed to the rights of the mechanic, but
not as to the purchase money due under the original contract of sale.
Ibid. 266.
8. Of the decree. Where a mechanic's lien is established against a
party holding a lot under a bond for a deed, who has not paid the pur-
INDEX. 673
LIENS. Mechanic's lien. Continued.
chase money, a sale of the property should be ordered, subject to the
rights of the vendor, and out of the proceeds the mechanic should first
be paid, and then the amount due any subsequent incumbrancer, and the
balance, if any, to the party against whom the lien exists. Hickoz v.
Greenwood, 266.
Lien for taxes.
9. Actual levy within the year not essential. See TAXATION, 30.
LIFE ESTATE IN PERSONAL PROPERTY.
Of the existence of such an estate.
And of the various rights connected therewith. See WILLS, 15 to 21.
LIMITATIONS.
By whom the statute mat be pleaded.
1. A plea of the bar of the Statute of Limitations is personal to the
debtor, and can not be interposed by a stranger. But such a defence
may be set up by an executor, administrator or heir when sued on the
contract of the intestate or ancestor, or by a co-maker as surety on a
contract. Emory v. Keighan et al. 543.
As to new cause of action.
2. Introduced by amendment of the declaration. Where an original
declaration against a common carrier declared only upon the common
law liability for refusing to receive grain when tendered for transporta-
tion, and afterwards, under leave of court, additional counts were filed
for not carrying the grain after its acceptance, and the defendant pleaded
the Statute of Limitations, that the cause of action in the new counts
did not accrue within five years before such counts were filed, it was
held, that the defendant had the right to file such plea, and that it was
error to sustain a demurrer to the plea, the additional counts introducing
an entirely different cause of action. Phelps v. Illinois Central Railroad
Co. 548.
AS TO PROPERTY, ETC., LOST BY WAGER.
3. Limitation of action by loser. The legal effect of sec. 132 of the
Criminal Code giving a right of action to the loser of property, etc., by
wager upon any race, against the winner, is to limit the time in which
the action may be brought to six months. After that period has elapsed
without suit by the loser,- any other person may sue the winner and re-
cover treble the value of the money, etc., one-half to the use of the
county, and the other half to the use of the person suing. Holland et al,
v. Stoain, 154.
43— 94th 111.
674 INDEX.
LIMITATIONS. Continued.
Under act of 1835.
4. Of the occupancy required. Proof of possession of land for more
than seven years under a title deducible of record from a person author-
ized to sell by order of a court, without proof of residence upon the land
for that period, does not establish a bar to an action of ejectment. Stump/
v. Osterhage, 115.
Saving clause — when plaintiff is non-suited.
5. Construction of the statute. The clause in section 24 of the Limita-
tion law, which provides that if the plaintiff be non-suited and the time
limited for bringing the action has expired during the pendency of the
suit, a new action may be brought within one year after such judgment
against the plaintiff, refers to involuntary non-suits as known to the
common law, and not to voluntary non-suits authorized by our statutes.
Holmes v. Chicago and Alton Railroad Co. 439.
Saving clause as respects married women.
6. In Limitation act of 1839 — abrogated by Married Woman's act. Since
the passage of the Married Woman's act of 1861, the saving clause in
favor of married women in the Limitation law of 1839 has no force, and
the statute since that time applies against a married woman equally as
against an unmarried woman, without regard to whether the property of
the unmarried woman be strictly, in legal contemplation, before the
passage of the act, her separate property or not, and without regard to
the time of its acquisition, whether since or before the passage of the
act, and whether before or during coverture. Enos et al. v. Buckley, 458.
7. Where land was acquired by a woman in 1842, by devise from her
father, and she married in 1846, and in June, 1865, a party went into
possession of the same under claim and color of title, and he and those
succeeding to his claim and color of title, while in possession, paid all
the taxes thereon for seven successive years before suit brought by her
to recover the land, it was held, that the action was barred under the
Limitation law of 1839. Ibid. 458.
Limitation act of 1839.
8. Defeated by payment of taxes. In such case the limitation of 1839
might have been prevented by the payment of the taxes by the owner,
and the outstanding title in the husband formed no impediment to their
payment since the act of 1861. The taxes should have been kept paid,
not on any one's particular interest in the land, but on the whole land.
Ibid. 458.
In criminal cases.
9. The statute should be construed liberally. The Statute of Limitations
as to the prosecution for crime is not one of process, to be scantily and
grudgingly applied, but it is an amnesty, declaring that after a certain
index. 675
LIMITATIONS. In criminal cases. Continued.
time oblivion shall be cast over the offence. Hence, such statutes are to
be liberally construed in favor of defendants. Lamkin et al. v. The
People, 501.
10. Limitation as to a misdemeanor — and herein, what is a felony and what
a misdemeanor. A felony, under our statute, is an offence punishable with
death or by imprisonment in the penitentiary, while every other offence
is a misdemeanor. When the offence may be punished by imprisonment
in the penitentiary or by fine only, in the discretion of the court or jury,
it is only a misdemeanor, and the eighteen months' limitation applies to
it. Ibid. 501.
MANDAMUS.
In the Supreme Court.
1. Practice. A motion was made in this court for an order to show
cause why a peremptory writ of mandamus should not issue to compel a
county judge to sign a bill of exceptions. The motion was based merely
upon an affidavit of one of the attorneys in the case, and the bill of ex-
ceptions which the judge had refused to sign. The motion was denied
upon the ground that, according to the practice in this court, a petition
should have been presented showing the grounds of the application.
Such a writ can not be awarded upon mere motion. The People ex rel.
Kirchner v. Loomis, 587.
MARRIED WOMEN.
Limitations.
Saving clause as to married women in Limitation act of 1839 abrogated hy
Married Woman's act. See LIMITATIONS, 6, 7.
MEASURE OF DAMAGES.
On failure to deliver grain sold.
1. The measure of damages for a breach of a contract to sell and deliver
grain, where the price has not been paid, is the difference between the
market value at the time of default and the contract price, with six per
cent interest thereon. Driggers v. Bell, 223.
On dissolution of injunction.
2. On an assessment of damages, after the dissolution of an injunction,
the dismissal of the bill and dissolution of the injunction are conclusive
evidence that the writ was wrongfully sued out. Where the defendant
was enjoined from taking possession of lumber claimed by him, for about
three weeks, the damages recoverable are only such as will cover his
injury by the delay caused and the expense necessarily incurred in pro-
curing the dissolution of the injunction. Cummings et al. v. Mugge, 186.
676 index.
MEASURE OF DAMAGES. On dissolution of injunction. Continued.
3. The sureties in the injunction bond are not liable for wrongs suf-
fered by the defendant, during the time the injunction was in force, by
unlawful acts of the complainant, other than the improvident act of suing
out the writ. They are not liable for the tortious acts of the complainant
in taking and converting the property during the pendency of the injunc-
tion. Cummings et al. v. Mugge, 186.
In trespass to lands.
4. As to measure of recovery in view of the different relations of the parties
to the premises. See TRESPASS, 3, 4, 5.
MENTAL CAPACITY.
To make a will. See WILLS, 5 to 9.
MILITIA OF THE STATE.
State and Federal power.
1. And herein, of their concurrent powers. The power in Congress to
provide for organizing, arming, equipping and disciplining the militia, is
not exclusive. It is merely an affirmative power, and not incompatible
with the existence of a like power in the States; and hence the States
have concurrent power of legislation not inconsistent with that of Con-
gress. It is only repugnant and interfering State legislation that must
give way to the paramount laws of Congress constitutionally enacted.
Dunne v. The People, 120.
2. The Federal constitution does not confer on Congress unlimited
power over the militia of the several States, but it is restricted to specific
objects enumerated, and for all other purposes the militia of the State
remains subject to State legislation. The power of a State over its militia
is not derived from the constitution of the United States. It is a power
the States had before the adoption of that instrument, and its exercise by
the States not being prohibited by it, it still remains with the States,
subject only to the paramount authority of acts of Congress enacted in
pursuance of the constitution. Ibid. 120.
3. The reservation to the States of the power of appointing the officers
of the militia, and authority to train the militia according to the disci-
pline prescribed by Congress, does not place any restriction upon the
States in respect of its power of concurrent legislation concerning its mi-
litia. The exception from a given power can not be considered as an
enumeration of all the powers which belong to the States over the militia.
Ibid. 120.
4. There is no question of the power of a State to organize such por-
tion of its militia as may be deemed necessary in the execution of its
laws, and to aid in maintaining domestic tranquillity within its borders.
INDEX. 677
MILITIA OF THE STATE. State and Federal power. Continued.
The power given to the chief executive of the State to call out the militia
to execute the laws, etc., by implication recognizes the right to organize
a State militia. Dunne v. The People, 120.
5. By any fair construction of the constitution of the United States, a
law to organize the militia of a State for its own purposes, not inconsis-
tent with the laws of Congress on that subject, is valid. In right of its
sovereignty a State may employ its militia to preserve order within its
borders, where the ordinary local officers are unable, on account of the
magnitude of the disturbance, or any sudden uprising, to accomplish the
result. Ibid. 120.
6. The organization of the active militia of the State is not in violation
of that clause of the Federal constitution which withholds from the States
the right to keep troops in time of peace. Such a militia is not em-
braced in the tei'm " troops" as used in the constitution. The State mili-
tia is simply a domestic force, as distinguished from regular troops, and
is only liable to be called into service when the exigencies of the State
make it necessary. Ibid. 120.
7. It is a matter dependent on the wisdom of Congress whether it will
provide for arming and disciplining the entire body of the militia of the
United States. The citizen is not entitled, under any law, State or Fed-
eral, to demand, as a matter of right, that arms shall be placed in his
hands. Ibid. 120.
8. It is for the legislature to determine of what number the active
militia of the State shall consist, depending on the exigency that makes
such organization necessary. Ibid. 120.
9. Validity of act of 1879 — under constitution of 1870, and in respect to
Federal laws. The act of the General Assembly of May 28, 1879, providing
for the organization of a State militia, etc., is not in conflict with any
provision of the present constitution of this State. Ibid. 120.
10. Nor is that act repugnant to the national law relating to the
militia, either in its spirit, intent or effect. In defining what persons
shall constitute the State militia, it is in strict accordance with the act
of Congress of 1792. Ibid. 120.
11. The provision in the State militia law making it the duty of the
Governor, as commander-in-chief, by proclamation, to require the enroll-
ment of the entire militia of the State, or such portion thereof as shall
be necessary, in the opinion of the President of the United States, and
to appoint enrolling officers, and to make all necessary orders to aid in
the organization of the militia, is not in contravention of any of the
provisions of the act of Congress of 1792, or any other act of Congress
in relation to the organization of the militia, but is rather in aid of such
laws. Ibid. 120.
678 INDEX.
MILITIA OF THE STATE. State and Federal power. Continued.
12. The organization of a State militia, when not in actual service,
but for the purpose of training under the act of Congress, into divisions,
brigades, regiments, battalions and companies, shall be done as the State
legislature may direct. When called into the national service, it is
made the duty of the executive to organize the militia as the act of Con-
gress directs. Dunne v. The People, 120.
13. The adoption of the discipline, exercises and equipment required
in the regular army of the United States, in the State system, will not
render the law invalid. Ibid. 120.
14. The fact that the men composing the active militia of the State
are required to take an oath to obey the " orders of the commander-in-
chief, and such other officers as may be placed over them," is no just
ground of objection to the law. The obedience to the orders of the Gov-
ernor is when they are in the service of the State, and not in the actual
service of the United States. Ibid. 120.
15. The provision of the Militia Code of the State, which provides
that no military company shall leave the State with arms and equip-
ments without the consent of the commander-in-chief, was intended to
apply to the militia when not in the actual service of the United States,
and is a valid law. Ibid. 120.
16. The provision of the militia law making it unlawful for any body
of men other than the regularly organized volunteer militia of this State
and of troops of the United States, with an exception in favor of stu-
dents in educational institutions where military science is taught, to
associate themselves together as a military company or organization,
or to drill or parade with arms, in any city or town of this State, without
the license of the Governor, is not inconsistent with any paramount
law of the United States, and is a binding law. Ibid. 120.
Effect of invalid provisions.
17. Or of differences in regulations from Federal laws. If the militia
law, in some minor matters of detail in the organization of the active
militia, or in some of its regulations, should not be found in harmony
with the acts of Congress, that would not invalidate the whole act. The
most that can be said is, that they should yield to the paramount laws
of the United States. Ibid. 120.
18. If the general pi-ovisions in sections 4, 5 and 6, of article 11 of
the Militia act, were repugnant to the laws of the United States respect-
ing the militia, they might be eliminated from the statute without affect-
ing in the slightest degree the efficient organization of the active militia;
but they are not inconsistent with or repugnant to any acts of Congress
on the subject. Ibid. 120.
INDEX. 679
MILITIA OF THE STATE. Effect of invalid provisions. Continued.
19. Non-essential differences in the regulations as to the militia not
in the actual service of the United States, contained in a State law, from
those in acts of Congress, will not render the former invalid. Dunne v.
The People, 120.
MINES AND MINING.
Mining in the lands of another.
1. Injury to surface land by leaving no sufficient support. Where the
surface of land belongs to one, and the minerals to another, no evidence
of title appearing to regulate or qualify their rights of enjoyment, the
owner of the minerals can not remove them without leaving support suf-
ficient to maintain the surface in its natural state. Wilms v. Jess, 464.
2. The rule is well settled that when one owning the whole fee grants
the minerals, reserving the surface to himself, his grantee is entitled only
to so much of the mineral as he can get without injury to the superin-
cumbent soil. Ibid. 464.
3. Injury to building by subsidence of earth. While it is doubtless true
the party owning the minerals under the land of another, or having a
lease to remove the same, is only bound to leave support for the superin-
cumbent soil in its natural state, and is not required to leave support for
additional buildings erected on the surface, yet the mere presence of a
building or other structure upon the surface will not prevent a recovery
for injuries to the surface, unless it is shown that the subsidence would
not have occurred from the act, if no buildings existed upon the surface.
The act creating the subsidence is wrongful, and renders the owners of
the mine liable for all damages that result therefrom, as well to the build-
ings as to the land. Ibid. 464.
4. The act of removing all support from the superincumbent soil is
prima facie the cause of its subsequently subsiding; but if the subsidence
is in fact caused by the weight of buildings erected on the surface after
the execution of a lease to the defendant, authorizing him to take the
mineral beneath the surface, that may be shown in defence as contribu-
tive negligence. Ibid. 464.
Mining lease.
5. Construed. Where a mining lease stipulated that no pillars should
be withdrawn within 600 feet of the shaft, and the whole clause relates
to the manner of working the mine and the condition in which it should
be left, it was held that the lessees were not by implication authorized to
withdraw pillars or supports not within the prescribed distance so as to
cause a subsidence of the superincumbent soil. Ibid. 464.
680 INDEX.
MISDEMEANOR.
What is a misdemeanor.
As distinguished from a felony. See CRIMINAL LAW, 7.
Jurisdiction.
In the circuit courts. See JURISDICTION, 1, 2.
MISTAKE.
Explanation thereof.
1. When sufficient, to admit a deed in evidence. In ejectment the plain-
tiffs offered in evidence a mortgage to George Milmine and Edwin C.
Bodman to secure a debt due to the firm of Milmine & Bodman, which
was objected to, and thereupon the plaintiffs proved that the mort-
gage was given to secure a debt due to the firm consisting of the
plaintiffs, and that the scrivener, when drawing the mortgage, asked the
mortgagor the given name of Bodman and was understood to say it was
Edwin C, and so the mortgage was drawn, his true name being Edward
C, and it was delivered to the agent of the firm, and thereupon the court
admitted the same in evidence: Held, that there was no error in this
ruling. Fisher v. Milmine et al. 328.
Correcting mistake.
2. What regarded as a correction — action of the court on foreclosure.
Where a bill to foreclose a mortgage alleges a mistake therein in the
transposition of the names of the parties in the commencement, but does
not ask specifically for its reformation, and the decree finds the fact of
the mistake, but does not in express terms order its correction, but orders
a sale, this will be treating the mortgage as corrected, and may be done
under the general prayer.. Beaver v. Slanker, Admr. 175.
Transposing names op parties in deed.
3. What will afford notice to purchasers. See NOTICE, 2.
MORTGAGES.
Op after acquired property.
1. Where a railroad company is, by its charter, authorized to borrow
money and mortgage the whole or any part of its road, property or in-
come then existing, or thereafter to be acquired, the company may not
only mortgage its present property and rights, but such as it may there-
after acquire, and such after acquired property will be subject to be sold
on foreclosure; and this seems to be the rule, independent of the author-
ity given in the charter. City of Quincy v. Chicago, Burlington and Quincy
Railroad Co. 537.
The debt is the principal thing.
2. The existence of the debt is essential to the life of the mortgage
given to secure it, and when the debt has been paid, discharged, released,
INDEX. 681
MORTGAGES. The debt is the principal thing. Continued.
barred by the Statute of Limitations, or a judgment or decree is rendered
in favor of the mortgagor in a proceeding to recover the debt, the mort-
gage is gone and has no longer any legal effect. Emory v. Keighan et al.
543.
Sale under power in mortgage.
3. Good if debt is not barred. Where a sale of land was made under a
power in a mortgage more than sixteen years after the debt became due,
so that the debt was barred as to all the other makers of the note, but
not as to the mortgagor, owing to his absence from the State, it was held,
that as the note was at the time of the sale legally enforcible against the
mortgagor, the sale was valid and passed title to the purchaser. Ibid.
543.
When condition is broken.
4. Where the condition of a mortgage, given to secure several notes
maturing at different times, provides that if the mortgagor shall pay all
said notes as the same shall become due, then the mortgage shall become
null and void, a failure to pay any note when it falls due is a breach of
the condition, and ejectment will die upon the same by the mortgagee.
Fisher v. Milmine et al. 328.
MUNICIPAL BONDS.
The power must exist.
* 1. As to innocent purchasers. Municipal corporations, unless author-
ized by their charters, have no power to make and place in the market
commercial paper, and all persons dealing in municipal bonds issued by
the officers of a school district must see that the power to issue them
exists. There is no presumption that such paper has been issued within
the scope of their power, as is the case with corporations created for
business purposes. Hewitt v. Board of Education, 528.
2. Municipal bonds issued without power are void in whosesoever hands
they may be found. So, a bond issued by the board of education of a
school district, not for the purpose of raising money to purchase a school
site, or for erecting a school building, they having no power under the
statute to issue such paper for any other purpose, is void even in the
hands of a person taking without notice, as no one can be an innocent
purchaser of such void paper. Ibid. 528.
Who may purchase.
3. Trustees of fund can not purchase bonds issued by themselves. Mem-
bers of a board of education for a school district are virtually trustees
of the school funds, and as such they are incapable of dealing with the
fund as purchasers or donees, and bonds issued by them to raise money
for the district and negotiated to members of the board are void, even
though sold without any discount. Ibid. 528.
682 INDEX.
MUNICIPAL CORPORATIONS. See CORPORATIONS, 5 to 11.
NATIONAL BANKS.
May acquire title to lands.
1. In payment of debts. A national bank has the right to acquire the
title to real estate in satisfaction of a pre-existing indebtedness. Mapes
et al. v. Scott et al. 379.
HOW TITLE QUESTIONED.
2. Conveyances of real estate to national banks are valid for all pur-
poses Until called in question by a direct proceeding instituted for that
purpose by the government. They can not be attacked collaterally, as,
in an action of ejectment. Ibid. 379.
NAVIGABLE STREAMS.
The " Healy slough."
1. The body of water in Cook county, in this State, connected with the
south branch of the Chicago river, and known as the "Healy slough," is
not a navigable stream, in the sense in which that term is used in the
law, when applied to streams with capacity to bear the usual products as
well as the commerce of the country in suitable vessels for transportation.
So, the public have not an easement over the "Healy slough" of a character
to render a permanent railroad bridge over the same a public nuisance.
Joliet and Chicago Railroad Co. et al. v. Healy et al. 416.
NEGLIGENCE.
Definition of negligence.
1. And as a question of fact. Negligence is the opposite of due care
and prudence. It is the omission to use the means reasonably necessary
to avoid injury to others, and is not a legal question, but one of fact to be
proved like any other question. It is error to tell the jury that certain
acts constitute negligence. Chicago and Alton Railroad Co. v. Pennell,
448.
Duty of inn keepers.
2. To protect their guests from harm. A guest at a hotel was assigned
a room which he had occupied on a former occasion, and, supposing he
could find it without difficulty, declined the services of a bell-boy proffered
him to show the way. In going to his room the guest, by mistake, opened
a door which was very near to the door of his room, but led into an "ele-
vator" opening. It was in the night time, and the hall only dimly lighted.
The guest, not discovering his mistake, stepped into the doorway and fell
to the basement of the building, receiving serious injuries. There was
no guard or protection against accident in case of such a mistake; and
an employee of the house had previously been injured by a similar acci-
dent at the same place. This was known to the landlord, and no steps
INDEX. 683
NEGLIGENCE. Duty of inn keepers. Continued.
taken to prevent a recurrence of the accident. It was held to have been
the duty of the hotel keeper, in the exercise of ordinary care for the safety
of his guests, which the law required of him, to secure the opening in
such way as not to endanger persons under like circumstances, and the.
omission of such duty was gross negligence. Hayward v. Merrill, 349.
Landing passengers from a steamboat.
3. Where a steamboat is landing at a wharf for the purpose of enabling
passengers to go ashore, it is the duty of the proper officers of the boat to
provide means for the safe transit of those who wish to leave the boat, —
and the fact that a stage plank, placed for the use of passengers in land-
ing, fell while a passenger, in the exercise of due care, was walking over
it, is prima facie evidence of negligence on the part of the officers of the
boat in the performance of that duty, and, in an action by the passenger
to recover for an injury caused by the falling of the plank, the burden
is upon the defendant to show the falling of the plank was not the result
of negligence on the part of the officers of the boat. Eagle Packet Co. v.
JDefries, 598.
4. Although it may appear that the end of the boat was moved around
by the wind, and that this caused the falling of the stage plank, yet, it
not being shown that the boat was fastened to the wharf in any way, or
that it could not have been fastened so as to have prevented it from being
moved by the wind, there would not appear to have been due care on the
part of the officers of the boat to discharge it from liability. Ibid. 598.
Negligence in railroads.
5. Allowing sparks from engine to communicate fire. The law requires a
railroad company, in operating its trains, to use every possible precaution,
by the use of all the best and most approved mechanical inventions, to
prevent loss from the escape of fire or sparks along the line of its road,
and such company will be liable for a loss by fire caused by a neglect of
such duty, when the owner of the property destroyed is himself free from
negligence. Chicago and Alton Railroad Co. v. Pennell, 448.
6. A party who erects a building on or near a railroad track knows
the dangers incident to the use of steam as a motive power, and must be
held to assume some of the hazards connected with its use on such thor-
oughfares. While the party has the right to erect a building near the
track, and in an exposed position, yet if he does so, he is bound to a
higher degree of care in providing proper means to protect his property
from fire than a person in a less exposed position, and is also required to
use all reasonable means to save his property in case a fire should occur.
Ibid. 448.
Contributory and comparative.
7. Where fire is communicated to a building situate near a railroad
track, through the negligence of a railroad company, the owner can not
684 INDEX.
NEGLIGENCE. Contributory and comparative. Continued.
recover for the loss of such property as he could easily and without dan-
ger have saved from destruction. Chicago and Alton Railroad Co. v.
Pennell, 448.
8. Of an instruction — stating the rule as to contributory negligence. In an
action against a railroad company to recover the value of a building
erected in close proximity to the track, and its furniture, which are
burned through the negligence of the company, an instruction placing the
right of recovery alone upon the defendant's negligence, and which en-
tirely ignores the question of due care on the part of the plaintiff in try-
ing to save the property destroyed or some part thereof, is erroneous.
Ibid. 448.
9. In an action to recover upon the alleged negligence of the defend-
ant, the question of contributory and comparative negligence was pre-
sented on the proofs. In a series of instructions for the plaintiff, the
first laid down the rule on that subject fully and accurately, — the second
merely defined negligence, without reference to the rule as to compara-
tive negligence. It was held, the second instruction merely laid down an
abstract principle of law, and it was not essential it should repeat the
rule concerning comparative negligence, which was fully given in the pre-
ceding instruction. Hayward v. Merrill, 349.
Instruction as to negligence.
10. Omission to state the rule of comparative negligence. See INSTRUC-
TIONS, 3, 4.
NEW TRIALS.
Excessive damages.
1. For personal injuries from negligence of another. A guest at a hotel,
while proceeding to his room, by mistake opened a door near the door of
his own room, which led into an "elevator" opening, and in attempting
to step into what he supposed was his own room, he fell into the "ele-
vator" opening, down to the basement of the building, receiving very
severe and permanent injuries, which disabled him from pursuing his
usual avocation. The accident was the result of negligence on the part
of the hotel keeper in not having the opening properly guarded. A ver-
dict in favor of the plaintiff for $2000 was considered not excessive.
Hayward v. Merrill, 349.
Newly discovered evidence.
2. Where newly, discovered evidence is somewhat cumulative, and is
quite inconclusive in its character, there will be no error in refusing a
new trial on the ground of such newly discovered evidence. McCollom
zt al. v. Indianapolis and St. Louis Railroad Co. 534.
INDEX. 685
NON-SUIT.
Voluntary and involuntary.
1. Of the distinction. A voluntary non-suit is an abandonment of a
cause of action by a plaintiff, and an agreement that a judgment for
costs be entered against him; but an involuntary non-suit is where
the plaintiff neglects to file his declaration or to appear when called
for trial of the case, or where he gives no evidence upon which a
jury can find a verdict in his favor. At common law there could be no
non-suit except on the motion of the defendant. Holmes v. Chicago and
Alton Railroad Co. 439.
2. Effect of voluntary non-suit. Since 1845, a plaintiff may take a non-
suit, but it most usually occurs in the progress of a trial. In either case
there is a judgment against the plaintiff for costs, but the judgment is
not in bar, nor will it preclude him from recovering on the same cause
of action. In this rCspect it is precisely the same thing, in effect, as a
dismissal by the plaintiff. Ibid. 439.
3.. Of an involuntary non-suit on the evidence* Where the plaintiff
gives evidence tending to establish his right to recover, the court has no
right to take the evidence from the jury, or to instruct them to find one
way or the other; but if the plaintiff introduces no evidence, and the
defendant moves the court for a non-suit, it may be properly granted,
although the plaintiff objects. So, where the plaintiff may introduce
some evidence, and yet it lacks all the essential elements of proving his
right to recover, and wholly fails to make a case, the defendant may
move to exclude it, or move for a non-suit, and if not assented to by the
plaintiff, the court may grant the non-suit, and in such case it would be
involuntary. If the defendant introduces evidence on his part, he can
not, afterwards, move for a non-suit or to exclude all the plaintiff's evi-
dence. Ibid. 439.
NOTICE.
Recitals in recorded deed.
1. Upon whom binding. The recitals in a recorded deed or bond will
bind no one except the grantors and those claiming under them by grant
subsequent to the recitals. Stumpfy. Osterhage, 115.
Of mistake in a deed.
2. Transposition of names of parties — notice to purchasers. Where the
name of the mortgagee is by mistake written in the blank for the mort-
*On the general subject of an involuntary non-suit, or excluding all the
plaintiff's evidence from the jury, see Runt v. Morton, 18 111. 75, Felt v. Wil-
liams, 1 Scam. 206, Owens v. Derby, 2 Scam. 26, Oillham v. State Bank, ibid.
250, Amos v. Sinnott, 4 Scam. 447, Joseph v. Fisher, 3 Scam. 137, Williams v.
Clayton, 1 Scam. 502, Phelps v. Jenkins, 4 Scam. 51, Davenport v. Gear, 2 Scam.
496, The People v. Browne, 3 Gilm. 88, Downey v. Smith. 13 111. 673, and Hub-
ner v. Fiege, 90 111. 208, and note to this last case on p. 209.
686 INDEX.
NOTICE. Of mistake in a deed. Continued.
gagor, and the name of the mortgagor in that left for the mortgagee, but
is signed by the right party, and purports to secure a debt from the party
signing to the other, and is acknowledged by the party signing, the mis-
take in the transposition of the names of the parties being palpable, its
record will be notice to subsequent purchasers from the mortgagor of the
mistake. Beaver v. Slanker, Admr. 175.
Notice to purchaser — op suretyship.
3. Where a party derives title to land through an administrator's sale
under an order of court, and from the purchaser at that sale, and the record
of the court shows that the sale was to be on credit and that the purchaser
was to give a mortgage on the land purchased and a note with personal
security, and a sale to the grantor of the party who alone gives a mort-
gage, this will be sufficient notice to such party purchasing from the
mortgagor that he was the principal and the other persons signing the
note were his sureties. Ibid. 175.
On re-docketing cause.
4. Upon remandment by Appellate Court — notice thereof. In giving the
ten days' notice of an intention to file a remanding order from an Appel-
late Court, in the court below, upon a reversal of a judgment or decree,
the statute does not require that the ten days should expire before the
first day of the term of the court in which it is proposed to reinstate the
case. It is enough that "not loss than ten days' notice" be given, though
the time may expire during the term. Smith v. Brittenham, 624.
Secondary evidence — lost deed.
5. Whether notice to produce deed necessary. See EVIDENCE, 6.
OFFICERS.
De facto officers.
License issued by de facto officers of a city — how far a protection. See
LICENSE, 1.
OFFICIAL BONDS.
Where the same officer has given two bonds.
1. Whether sureties on old or new bond are liable. Where a clerk of the
circuit court was required by his sureties to give a new bond, which was
given and approved in March, 1875, and it appeared that moneys came
into his hands for fees since his last accounting to the county board on
December 1, 1875, and before the approval of the new bond, which it was
his duty to account for and pay into the county treasury on June 1, 1875,
it was held, that the sureties on his former bond were liable for its non-
payment, and that it was error to refuse evidence of the receipt of such
money in a suit on the old bond. Cullom, Governor v. Dolloff et al. 330.
INDEX. 687
OFFICIAL BONDS. Continued.
Bond of clerk of circuit court.
2. Right of action thereon. In a suit upon the official bond of a circuit
clerk, for failing to pay into the county treasury fees collected by him in
excess of his compensation as fixed by the county board, and the expenses
of his office actually paid for clerk hire, fuel, stationery, etc., where the
board had made repeated efforts to bring him to a settlement, and finally,
a few days before suit brought, ordered him to pay a sum into the treas-
ury, it was held, that the action would lie without a previous auditing of
his accounts, and notwithstanding the order made might have been for
the payment of more than the county was entitled to receive. Cullom
Governor v. Dollojf et al. 330.
Administrator's bond.
3. Release of sureties — on setting aside will, etc. See ADMINISTRA-
TOR'S BOND, 1.
Administrator and guardian.
4. United in the same person — in which capacity liable — in respect to the
official bonds. See GUARDIAN, 1, 2.
Collector's bond.
5. As a lien on real estate of collector. See LIENS, 1, 2.
6. Remedy to enforce such lien. Same title, 3.
ORDINANCES.
At what time passed.
1. Of an appropriation ordinance. Where an appropriation ordinance
was passed within the time limited by law, and the mayor afterwards
vetoed some of the items, and after the time fixed for passing such ordi-
nance the city council passed most of the vetoed items over the veto, it
was held that the ordinance was passed in time, the subsequent action of
the council amounting in law merely to an adherence to appropriations
already made. Fairfield et al. v. The People ex rel. McCrea, 244.
In respect to special assessments.
2. Of the requisites of the ordinance, and whether sufficient. See SPECIAL
ASSESSMENTS, 1, 2, 3.
PARTIES.
On bill to set aside deed obtained by fraud.
1. Upon bill to set aside a conveyance of land executed by the com-
plainant, and alleged to have been obtained by fraud, and also to set
aside a series of conveyances subsequent thereto, of the same land,
alleged to have been made in aid of the fraud, the heirs of an interme-
diate grantor who had conveyed with covenant of warranty, are not
necessary parties, unless it appears that they have assets from the
ancestor who made the covenant. If the heirs have received nothing
688 INDEX.
PARTIES. On bill to set aside deed obtained by fraud. Continued.
from the covenantor, they can by no possibility be made liable upon his
covenant, and therefore would have no interest to be affected by the de-
cree. Craig et al. v. Smith, 469.
On bill contesting will.
2. On a bill in chancery, under the statute, to contest the validity of
a will, all the legatees and devisees in the will are necessary parties, and
a decree taken omitting such necessary parties will be reversed. Brown
et al. v. Riggin et al. 560.
PARTNERSHIP.
Partnership and individual indebtedness.
1. Out of what fund, respectively, to be paid. In the distribution of the
assets of insolvent partners, the rule in equity is, that partnership credi-
tors have a primary claim upon the partnership assets, to the exclusion
of the creditors of the individual partners, until all the partnership
debts shall be satisfied; — and the same rule will exclude partnership
creditors from participation in assets of the individual partners until all
their individual debts are paid. Union National Bank of Chicago v. Bank
of Commerce of St. Louis, 271.
2. What constitutes individual indebtedness, as distinguished from partner-
ship indebtedness. Where three members of a partnership firm gave their
joint and several promissory note, payable to the firm, and the firm sub-
sequently indorsed the note to a third person, such third person will hold
the note as an individual claim against the makers, as distinguished from
a partnership claim,— having the right to hold the firm liable also, not as
makers, but as indorsers; — and this individual character of the claim
against the makers will not be in the least modified or changed by the
fact that the note has been reduced to judgment against them. Ibid. 271.
Bill for an account between partners.
3. Of the right to an accounting. See CHANCERY, 3.
PECUNIARY CIRCUMSTANCES OF PARTIES.
When proper to be proven. See EVIDENCE, 18.
PERRY AND JEFFERSON COUNTIES.
Of the boundary line between them. See BOUNDARIES, 1, 2, 3.
PLEADING.
Of the declaration.
1. In action against directors and officers of stock corporation for indebt-
edness in excess of capital stock assented to by them. See CORPORA-
TIONS, 4.
INDEX. 689
PLEADING. Continued.
General demurrer to declaration.
2. One good count. A general demurrer to a declaration containing
several counts can not be sustained if there be one good count, however
many bad counts the declaration may contain. Eeece et al. v. Smith, 362. ■
Special demurrer.
3. Its requisites. It is not sufficient, in a special demurrer, to assign
for special cause in general that the pleading demurred to its double or
lacks form. It must show in what the duplicity consists, or wherein the
form is deficient. Holmes v. Chicago and Alton Railroad Co. 439.
PLEADING AND EVIDENCE.
Allegations and proof.
1. On charge of embezzlement. On an indictment charging the defend-
ant with the embezzlement of money only, the admission of evidence
showing the larceny or embezzlement of county orders is error. Goodhue
v. The People, 37.
2. As to amount of judgment — in chancery to enforce a lien — whether va-
riance material. Where a bill in chancery alleged the recovery of a judg-
ment on or about the day of November, 1872, against several, which
became a lien upon the lands of one from whom the complainant after-
wards purchased, while the proof showed that the judgment was recov-
ered in April, 1869: Held, that the allegation of the time of obtaining
the judgment was not of a descriptive character of the judgment, and
that the variance was not material, the substantial question being whether
the judgment became a lien on the land before its purchase. So, it is no
fatal objection that the amount of the judgment is not correctly given,
when it was in fact for more than is stated. Beaver v. Slanker, Admr,
175.
3. As to time of delivery under contract. Where a declaration in a suit
for the breach of a contract for the sale of wheat, alleged that by the
contract the wheat was to have been delivered " in a reasonable time,"
and the proof was, to be delivered on payment and demand, " at any
time within five weeks," it was held that the variance would have been
fatal if the objection had been made on the trial, unless the declaration
had been amended. Driggers v. Bell, 223.
4. When averment need not be proved. Where a declaration in a suit
by a widow to recover damages for the death of her husband by the sale
of intoxicating liquor to him, alleged that he was killed by a train of
cars in consequence of his intoxication, without any fault on the part of
the railway company, it was held that in the absence of proof of fault
on the part of the company it would be presumed there was none, and
that the allegation not being material, was not necessary to be proved.
Schroder v. Crawford, 357.
44—94 III.
690 INDEX.
PLEADING AND EVIDENCE. Continued.
AS TO RECOVERY FOR PERSONAL INJURIES.
5. As to character of injury for which recovery may be had, under the
pleadings. In an action to recover for personal injuries occasioned by
the alleged negligence of the defendant, it was averred in the declara-
tion, in respect to the character of the injury received, that the plain tin7
" then and there became and was sick, lame and disordered, and so re-
mained for a long time, to-wit, hitherto," etc. This was a sufficient aver-
ment to authorize an instruction to the effect that the jury might award
to the plaintiff damages for such permanent injury as the evidence
showed she had sustained, the question of the permanency of the injury
being one resting on the evidence and which need not be averred in the
declaration. Eagle Packet Co. v. Defries, 598.
Recovery must be upon the ground assumed.
6. Where a carrier is sued in an action on the case, to enforce a com-
mon law liability for not receiving grain for transportation, if relieved
from that liability on account of the interference and control of the mili-
tary, the plaintiff can not recover upon a contract to furnish cars and
receive the grain for carriage. The contract can avail no further than
as a question of fact of governmental control, as relieving from the com-
mon law duty. Phelps v. Illinois Central Railroad Co. 548.
POLICE POWER OF THE STATE.
Generally.
1. In matters pertaining to the internal peace and well-being of the
State, its police powers are plenary and inalienable. It is a power co-
extensive with self-protection. Everything necessary for the protection,
safety and best interests of the people of the State, may be done under
this power. Persons and property may be subjected to all reasonable
restraints and burdens for the common good. Dunne v. The People, 120.
2. Where mere property interests are involved, this power, like other
powers of government, is subject to constitutional limitations; but when
the internal peace and health of the people are concerned, the only limi-
tations imposed are, that such " regulations must have reference to the
comfort, safety and welfare of society." What will endanger the public
security must, as a general rule, be left to the wisdom of the legislative
department. Ibid. 120.
Prohibiting parade of armed bodies of men.
3. It is a matter within the regulation and subject to the police power
of the State to determine whether bodies of men, with military organi-
zations or otherwise, under no discipline or command by the United
States or of this State, shall be permitted to parade with arms in popu-
lous communities and in public places. Ibid. 120.
INDEX. 691
POSSESSION.
Under Limitation act of 1835.
Of the character of possession or occupancy required. See LIMITA-
TIONS, 4.
PRACTICE.
Evidence in chief and in rebuttal.
1. Of the rule in respect thereto. The usual rule of practice in this
State is, that the party upon whom the burden of proof rests must in the
first instance produce all the proof he proposes to offer in support of his
allegation, and that after his adversary has closed his proof he may only
introduce such proof as directly rebuts that of his adversary. In this,
however, the trial court has a discretion, which should be exercised so
that neither party shall be taken by surprise, or deprived without notice
of an opportunity of introducing material evidence. Mueller v. Eebhan,
142.
2. Where, on the trial of an issue as to the sanity of a testator, after
the defendant has closed his case in support of the will and rested his
case upon the production of the will, the affidavits of the subscribing
witnesses and the order admitting the will to probate, he was notified by
the court that if he desired to produce any further evidence of the sanity
of the testator he must then do so, otherwise he could not after the con-
testant had closed his case, it was held that the defendant could not com-
plain if he was not afterwards allowed to cumulate proof on the subject.
Ibid. 142.
Of further proof of facts conceded.
3. After the examination of a great number of witnesses as to cer-
tain facts which are conceded by the opposite party, there is no error in
refusing to hear other witnesses to prove the same facts. Ibid. 142.
Conceding that absent witness will testify the same way.
4. Where it is conceded that an absent witness will swear to the same
state of facts as the witnesses already examined, and the court then
states that he will hear no more evidence as to such facts, but it does not
appear that the absent witness was produced, or was offered to testify,
there will be no error in the remark of the court indicating what he
would do if the witness should be produced. Ibid. 142.
Improper mode of argument to jury.
5. Omitting to call attention of the court. Although a State's attorney
may have indulged in much intemperance of speech in his closing argu-
ment in a criminal case, yet, if it does not appear that the attention of
the presiding judge was called to the circumstance, it can not be said
the court erred in not checking the counsel. Wilson v. The People, 299.
692 index.
PRACTICE. Continued.
Time to object.
6. As to variance. Where an objection could have been obviated by
amendment, and it is not made on the trial, it will be too late to urge the
same in this court for the first time. So held of a variance between the
declaration and proof as to the terms of a contract. Driggers v. Bell,
223.
Competency of juror.
7. In what manner to be questioned. See JURY, 1.
Non-suit.
8. Voluntary and involuntary — of the distinction — and of an involuntary
non-suit on the evidence. See NON-SUIT, 1, 2, 3.
PRACTICE IN THE SUPREME COURT.
Supersedeas bond.
1. By an administrator — as to character of liability to be assumed. After
the hearing of a cause in chancery, but before the entry of any decree,
the defendant died. By stipulation of counsel a decree was entered nunc
pro tunc, as of the date of the hearing, so as to appear to have been
rendered against the defendant in his lifetime. In suing out a writ of
error to reverse the decree, the administrator of the defendant executed
a supersedeas bond conditioned that in case of affirmance the decree
should be paid "in due course of administration." This was held suffi-
cient. The administrator was not bound to assume an absolute personal
liability for the payment of the decree against his intestate. Smith et al.
Admrs. v. Dennison, Receiver, 582.
Release of errors.
2. Effect of agreement to pay decree. In a suit in chancery, upon pre-
sentation of the decree, which found the defendant liable to pay a certain
sum of money, the defendant moved to amend the decree by extending the
time for payment, agreeing to pay the money in case further time should
be given. The decree was amended accordingly and so entered. It was
held, this agreement to pay the amount decreed against the defendant
was not to be considered so far voluntary on his part as to operate as a
release of errors, if any existed in the proceedings which resulted in the
decree fixing his liability. Hatch v. Jacobson, Receiver, 584.
Questions to be considered on a second appeal.
3. What parts of the record to be brought up — remedy as to rulings of
this court. If the decision of this court in a particular case is not satis-
factory to the parties, the only remedy is to make application for a
rehearing. Any supposed errors which may have intervened in a cause
prior to an appeal or writ of error, will not be considered upon any sub-
sequent appeal or writ of error. Cases can not be brought to this court
and considered in fragments. Smith v. Brittenham, 624.
INDEX. 693
PRACTICE IN THE SUPREME COURT.
Questions to be considered on a second appeal. Continued.
4. Errors occurring in the proceedings in a cause after it has been
considered in this court, however, may of course be inquired into upon a
second appeal or writ of error, but, for that purpose only so much of the'
record as is essential to the presentation of what is claimed to be such
subsequent errors, should be brought up. Smith v. Brittenham, 624.
Error will not always reverse.
5. Referring cause to attorney for trial. It is a familiar rule that an
error which does no harm is not a sufficient ground to reverse a judgment.
Thus, where an order was made referring a cause to an attorney for trial,
and afterwards at the same term the parties waived a jury and submitted
the cause to the court for trial, who heard the evidence and rendered a
judgment for the plaintiff, it was held, that if the order of reference was
erroneous, it worked no injury and afforded no ground of reversal.
Goucher v. Patterson, 525.
6. The exclusion of evidence which works no injury, as, where the same
thing proposed to be shown by it clearly appears from other evidence in
the case, though technically an error, is no ground for a reversal. Ger-
mania Fire Ins. Co. v. McKee, 494.
7. Improper argument by counsel. Although a State's attorney may
have indulged in much intemperance of speech in his closing argument
in a criminal case, yet, if it does not appear that the attention of the pre-
siding judge was called to the circumstance, it can not be said the court
erred in not checking the counsel. But even if there were error in that
regard, it would not authorize the reversal of a judgment clearly right
under the evidence. Where the result reached by a judgment is clearly
right, it will never be reversed for errors which do not affect the substan-
tial merits of the case. Wilson v. The People, 299.
Mandamus.
9. Not allowed in Supreme Court upon mere motion, but only on petition
filed. See MANDAMUS, 1.
Admitting prisoner to bail.
9. Pending writ of error. See BAIL, 1.
PRESUMPTIONS.
Of law and fact.
1. As to correctness of ruling in court below unless otherwise shown by bill
of exceptions. See EXCEPTIONS AND BILLS OF EXCEPTIONS, 1.
2. As to whether evidence supports the judgment or decree — the rule in con-
tested election cases. See ELECTIONS, 6.
3. As to existence of power to issue municipal bonds. See MUNICIPAL
BONDS, 1.
4. As to character of estate taken by a trustee. See TRUSTS, 1.
694 INDEX.
PUBLIC LAWS.
What to be so considered. See STATUTES, 1.
PURCHASERS.
Protection to bona fide purchaser.
1. Against fraud, etc., of his vendor. Where the owner of personal
property puts the same into the possession of another with the present
intention of parting with his title thereto, and the person thus in posses-
sion as owner, by the consent of the real owner, sells and delivers the
same for a valuable consideration to a bona fide purchaser, whether such
original delivery of possession occurred by reason of fraud, or of a void
contract, or from any other cause, such original owner can not recover
the property from such honest purchaser. Holland et al. v. Swain, 154.
Who may become a purchaser.
2. At an execution sale. One of two defendants in an execution may
properly become a purchaser at the execution sale of the land of his co-
defendant; — and especially would this be the case where the purchaser
was surety for his co-defendant in respect of the debt for which the judg-
ment upon which the execution issued was rendered. Mathis et al. v.
Stufflebeam, 481.
3. As to bonds of a school district — members of the board issuing them.
See MUNICIPAL BONDS, 3.
Purchasers of municipal bonds.
4. If bonds are issued without authority, innocent purchasers not protected.
See MUNICIPAL BONDS, 2.
As to right to subrogation.
5. When land of purchaser subject to lien for the obligation of his vendor
as surety— and the debt paid. See SUBROGATION, 1 to 4.
Notice to purchasers.
6. What regarded as notice. See NOTICE, 3.
Purchaser from a mortgagor.
7. Subject to right of subrogation in favor of a surety who pays the mortgage
debt. See SUBROGATION, 3.
QUINCY, CITY OF.
Of taxation therein.
As to the rate thereof and by what law governed. See TAXATION, 23,
24, 25.
RECITALS.
In recorded deed.
Upon whom binding. See NOTICE, 1.
INDEX. 695
RE-DOCKETING CAUSE.
On kemandment by Appellate Court.
Of the notice required. See NOTICE, 4.
RELEASE.
AS TO CAUSE OP ACTION.
Whether release properly obtained, so as to be binding. See CON-
TRACTS, 1.
RELEASE OF ERRORS.
Agreement to pat decree. See PRACTICE IN THE SUPREME COURT, 2.
REMEDIES.
Against directors, etc., of stock corporations.
1. For indebtedness in excess of capital stock — remedy in equity, not at law.
See CORPORATIONS, 3, 4.
TO ENFORCE LIEN UNDER COLLECTOR'S BOND.
2. Remedy in chancery. See LIENS, 3.
RESULTING TRUST. See TRUSTS, 8 to 11.
REVERSION.
On vacating street.
Land reverts to original owner. See HIGHWAYS, 4.
REVOCATION.
AS TO A GIFT.
When a gift has been executed — whether it can be revoked. See GIFT, 2.
SALES.
Judicial sales.
Who may become apurchaser at an execution sale. See PURCHASERS, 2.
SCHOOLS.
Bonds of school district.
1. For what purpose they may be issued — when issued without power, void.
See MUNICIPAL BONDS, 2.
Costs.
2. As against school trustees. See COSTS, 2.
SELF-DEFENCE. See CRIMINAL LAW, 12, 14.
SIDEWALKS.
Special taxation therefor. See TAXATION, 17 to 22.
696 index.
SPECIAL ASSESSMENTS.
Ordinance — description of sewer.
1. An ordinance for the construction of a sewer which names three
several curves between two given points without giving the radius, as.
for instance, after naming a point, saying " thence curve until it inter-
sects with a point" named, where the curves are for very short distances
and adapted to the purposes of the sewer, and can be properly located in
one way only from the whole ordinance taken together, is not void for
uncertainty. Village of Hyde Park v. Borden et al. 26.
Sewer across private property.
2. Validity of ordinance — estoppel to claim compensation. If a sever is
constructed over private property with the knowledge of the owner, under
an ordinance, and he makes no objection thereto and takes no steps to
prevent the same, he will be thereafter estopped from making any claim
to compensation, and the ordinance will not be void because the sewer is
over private ground, and the collection of special assessments for its con-
struction can not be defeated on this ground. Ibid. 26.
Providing for compensation.
3. Requisites of ordinance. The statute does not require that an ordi-
nance for the construction of a sewer by a municipal corporation shall
make any provision for acquiring the right to make the improvement
upon the property of others, but it provides that after the passage of an
ordinance for an improvement, the making of which will require that
private property be taken or damaged, then the city or village shall file
a petition for the ascertainment of the compensation to be paid, if it can
not be agreed upon by the parties. Ibid. 26.
4. Not a prerequisite. A city or village may make special assessments
for a public improvement before the compensation to be paid for private
property to be taken or damaged is ascertained. Ibid. 26.
Obtaining right of way.
5. Not a prerequisite. The collection of special assessments for the
construction of a sewer can not be resisted on the ground that at the
time of the adoption of the ordinance for the proposed improvement and
of the making of the assessments, permission was not obtained to make
the improvement over or through the lands of other corporate bodies, and
permission from such bodies may be obtained afterwards and it will be
good. Ibid. 26.
STATE MILITIA. See MILITIA OF THE STATE.
STATUTES.
Public laws.
1. What to be so considered — judicial notice. It is doubtless a correct
principle, that all acts of the legislature conferring or restricting the
ixdex. 697
STATUTES. Public laws. Continued.
revenue powers of a municipal corporation are in their nature public
laws, whether so declared in terms or not, and of which all courts will
be bound to take judicial notice in all proceedings affecting revenue
matters. Binkert v. Jansen et al. 283.
Repeal — by implication.
2. Generally. The repeal of statutes by implication is not favored by
the courts, and unless the two statutes can not be reconciled, they must
be allowed to stand. Wragg et al. v. Penn Township, 11.
3. As to penalty for obstructing highway — sec. 58, ch. 121, Rev. Stat. 1874)
not repealed by sec. 221 of the Criminal Code. See CRIMINAL LAW, 10.
Construction of statutes.
4. Of the title of an act. Although the title of an act is commonly
said to be no part of the act, it is not to be wholly disregarded in putting
a construction upon the statute. The object of the legislature is very
often avowed in the title as well as in the preamble; and where the mind
labors to discover the design of the legislature, it seizes upon everything
from which aid can be derived ; and in such case, the title of an act
claims a degree of notice, and will have its due share of consideration.
County of Perry v. County of Jefferson, 214.
5. As to following the letter of the statute. Statutes must be interpreted
according to the iutent and meaning, not always according to the letter.
A thing within the intention, is within the statute, though not within the
letter; and a thing within the letter is not within the statute, unless
within the intention. There is sufficient authority to warrant departure
from the words of a statute when to follow them would lead to an absurd
consequence. Ibid. 214.
6. Rule for construing where a word has to be rejected. Where it becomes
necessary to reject one of two words in a statute and to substitute another
to give force to the meaning of the law, it should be that which best
effectuates the legislative intention, and the courts should look to the
object in view of the law-makers. Walker v. City of Springfield, 362.
Statutes construed.
7. Appeals and writs of error in criminal cases, — under sec. 8 of the Ap-
pellate Court act, and sec. 88 of the Practice act of 1877. Ingraham v.
The People, 428. See APPEALS AND WRITS OF ERROR, 3.
8. Boundary line between Perry and Jefferson counties — the act of 1835
on that subject construed in County of Perry v. County of Jefferson, 214.
See BOUNDARIES, 1, 2, 3.
9. Consolidating towns in counties under township organization — can only
be done upon a vote of the people. The several statutes on the subject
construed in People ex rel. Schack v. Brayton, 341. See TOWNS, 2 to 6.
698
INDEX.
STATUTES. Statutes construed. Continued.
10. Foreign insurance companies — power in cities to impose a license fee.
Construction and application of the statute. Walker v. City of Spring-
field, 364. See LICENSES 2 to 6.
11. Intoxicating liquors — injury resulting from their sale — liability there-
for. The statute construed in Schroder v. Crawford, 357. See INTOXI-
CATING LIQUORS, 1, 2.
12. Limitation of action by loser of money, etc., by wager upon any race,
under sec. 132 of the Criminal Code. Holland etal. v. Swain, 154. See
LIMITATIONS, 3.
13. Limitations — saving clause, when the plaintiff is non-suited. The
statute construed in Holmes v. Chicago and Alton Railroad Co. 439. See
LIMITATIONS, 5.
14. Notice of re-docketing cause on remandment by Appellate Court.
Statute construed in Smith v. Brittenham, 624. See NOTICE, 4.
15. Stock corporation — liability of directors and officers assenting to an
indebtedness in excess of the capital stock. Sec. 16, ch. 32, Rev. Stat. 1874,
construed in Low v. Buchanan, 76. See CORPORATIONS, 1, 2.
16. Taxation by the city of Quincy — as to the rate thereof — and by what
law governed. The various acts bearing on the subject construed in Bink-
ert v. Jansen ei al. 283. See TAXATION, 23, 24, 25.
17. Taxation — municipal taxation for prior years — back taxes. Act of
1877 construed in Fairfield et al. v. The People ex rel. McCrea, 244. See
TAXATION, 16.
18. Taxation — as to exemption of Illinois Central Railroad lands. The
charter of the company and sec. 61, ch. 120, Rev. Stat. 1874, construed in
Illinois Central Railroad Co. v. Goodwin, 262. See TAXATION, 1 to 4.
STOCKHOLDERS.
Stock corporations.
Liability of directors and officers assenting to an indebtedness exceeding capital
stock. See CORPORATIONS, 1, 2.
STREETS.
Vacating street.
Reversion to original owner. See HIGHWAYS, 4.
SUBROGATION.
In whose favor allowed.
1. Generally — and as to rights of a surety, and a purchaser from surety.
Where, at the time when the obligation of a principal and surety is given,
a mortgage also is made by the principal to the creditor as an additional
security for the debt, if the surety pays the debt he will, in equity, be
INDEX. 699
SUBROGATION. In whose favor allowed. Continued,
entitled to have an assignment of the mortgage and to stand in the place
of the mortgagee, and the mortgage will remain a valid and effectual
security in favor of the surety for the purpose of reimbursing him, not-
withstanding the obligation is paid. The mortgage is regarded as not
only for the creditor's security, but for the surety's indemnity as well.
Beaver v. Blanker, Admr. 175.
2. A mere stranger or volunteer can not, by paying a debt for which
another is bound, be subrogated to the creditor's rights in respect to the
security given by the real debtor; but if the person who pays the debt
was compelled to do so, for the protection of his own interests and rights,
the substitution should be made. Ibid. 175.
3. Where a debtor gives personal security for his debt and also a
mortgage on his land to the creditor, who recovers judgment against both
the principal and surety upon the note given, which becomes a lien upon
the land of the surety, and the surety then sells his land by warranty
deed to another, after which his land so purchased is sold in satisfaction
of the judgment, and the purchaser is compelled to purchase the certificate
of purchase to save his land, and takes an assignment of the mortgage,
the grantee of the surety so paying will be entitled to be subrogated in
equity to the rights of the creditor, and to have the mortgage foreclosed
to indemnify him for the sum so paid by him. Ibid. 175.
4. Where a person gives a note with personal security for a debt, and
also a mortgage on his land as a further security, the surety, or his
grantee of land upon which a lien was created by judgment for the debt
before the execution of his deed, who is compelled to pay a portion of the
debt, will be entitled to have the mortgage, if duly recorded, foreclosed as
against purchasers of the mortgagor, the record of the mortgage being
notice to them when they purchased. Ibid. 175.
5. As to lien on principal's land. Where the sureties of a county col-
lector are compelled to pay money to the State or county for the default
of the collector after he has transferred his real estate after the statutory
lien has attached thereto, they will in equity be entitled to be subrogated
to the lien in favor of the State, and may enforce the same against the
grantee of the collector by a bilhjin chancery to reimburse themselves for
the amount paid by them. Eicheson et al. v. Crawford ei al. 165.
6. Security taken by payee inures to benefit of surety. Where a mortgage
or further security is taken from the principal debtor, the property em-
braced in it is to be held not only for the benefit of the creditor, but also
for the indemnity of the "surety, and it is the right of the surety, when ho
pays the debt of the principal, to be subrogated to whatever security the
creditor had. Ibid. 165.
700 INDEX.
SURETY.
On administrator's bond.
1. Effect of setting aside a will and directing the administrator with the
will annexed to administer upon the estate — as a release of the sureties on his
bond. See ADMINISTRATOR'S BOND, 1.
Surety in injunction bond.
2. Extent of liability. See MEASURE OF DAMAGES, 3.
In case op two official bonds by same officer.
3. Whether sureties liable upon old or new bond. See OFFICIAL
BONDS, 1.
Subrogation.
4. To liens and other securities held by the creditor. See SUBROGATION,
1 to 6.
SWAMP LANDS.
Selection by Illinois Central Railroad Co.
1. In lieu of other lands sold or pre-empted — as to the title. Swamp and
overflowed lands selected by the Illinois Central Railroad Company in
lieu of other lands sold or pre-empted, after the list thereof properly cer-
tified was filed for record in the proper county, can not be recovered by
the county in which they lie, as the legal title to such lands is in the
railroad company and not in the county. Illinois Central Railroad Co. v.
County of Union, 71.
2. Under the two grants to the State of Illinois of lands for the pur-
pose of constructing a railroad, and that of swamp and overflowed lands,
the State took the whole legal title, with full power of disposition, with-
out regard to the uses for which the lands were granted. Ibid. 71.
3. Upon the selection of the lands granted the State for railroad pur-
poses, by the Illinois Central Railroad Company, as provided in the stat-
ute, the grant to the State under the act of Congress of Sept. 20, 1850,
became certain, and the grant attached to the particular lands selected,
and the title to them vested in the railroad company. Ibid. 71.
TAXATION.
Illinois Central Railroad lands.
1. Exemption from taxation — whether the lands have been " sold and con-
veyed." Section 22 of the charter of the Illinois Central Railroad Com-
pany, providing that the lands selected under the act of Congress approved
September 20, 1850, which made a grant of lands to certain States named,
in aid of the construction of a railroad from Chicago to Mobile, should be
"exempt from all taxation under the laws of this State until sold and
conveyed by said corporation," has been held to be a constitutional enact-
ment, and is a contract between the company and the State which it is
INDEX. 701
TAXATION. Illinois Central Railroad lands. Continued.
not competent for the legislature to disregard or in anywise impair.
Illinois Central Railroad Co. v. Goodwin, 262.
2. These lands may be sold by the company on a credit, and on failure
of the purchaser to pay the purchase money, the company may, if the
contract so provide, declare a forfeiture thereof. Ibid. 262.
3. So, where the company had entered into a contract of sale of cer-
tain of its lands, no conveyance being made, and the purchasers failed to
pay the purchase money according to the terms of the contract, whereupon
the company declared a forfeiture of the contract of sale, it was held, the
lands were not subject to taxation. They had not been "sold and con-
veyed," within the meaning of the 22d section of the charter. Ibid. 262.
4. If the clause in section 61, chapter 120, Rev. Stat. 1874, which
declares that "Illinois Central Railroad lands and lots shall be taxable,"
after having been sold, "from and after the time the last payment be-
comes due," was intended to change the rule of taxation of these lands as
prescribed in the 22d section of the company's charter, then the General
Assembly has transcended its powers in that regard. Ibid. 262.
Against whom property may be taxed.
5. And when collection will be enjoined. Where a party, not the owner
or lessee .of property, having no taxable interest therein, but who is
merely in joint use of the same with the owner for a compensation, is
taxed for one-half of its value, the tax will be illegal and levied without
warrant of law, and a court of equity will enjoin its collection. Irvin v.
New Orleans, St. Louis and Chicago Railroad Co. 105.
6. Where one railroad company builds a car hoist and lays a third rail
upon its own ground, and at its own expense, which is attached to and
becomes a part of the soil, another railroad company using the same
jointly with the owner, for which it pays a compensation, can not be
taxed for one-half its value. Ibid. 105.
Personal property — where taxable.
7. The first clause of the first section of the Revenue law which pro-
vides that all real and personal property in this State shall be assessed
and taxed, does not contemplate the assessment of personal property that
is merely passing through or is in the State for a temporary purpose only.
Ibid. 105.
8. While the situs of personal property is, under many circumstances,
considered by the law as being that of its owner, such is not the uniform
rule. Where the property is permanently located at a particular place,
it is subject to taxation there whether such place is the domicil of the
owner or not. Ibid. 105.
702 INDEX.
TAXATION. Continued.
Boats — "where taxable.
9. A boat is subject to taxation at the place of its registration and
where it lies up when not in use — in other words at its home port; and
this without regard to the place where its owners may reside. Irvin v.
New Orleans, St. Louis and Chicago Railroad Co. 105.
10. Where a transfer boat, registered at Cairo, in this State, and
owned, one-half by a corporation in this State and the other half by a
corporation of another State, was used for the transfer of cars, etc., of
both corporations from Cairo to the Kentucky shore and back, and when
not in actual use was laid up in Cairo, where the hands operating the
same resided, and where the companies assessed had a business office, it
was held, that the interest of each of the corporations was subject to tax-
ation in Cairo. Ibid. 105.
Back taxes — corporate purpose.
11. And herein, as to the validity of an enabling act in respect to bach taxes.
The tax order to be levied by the common council of the city of Chicago
for municipal expenditures for the years 1873 and 1874, was for a corpo-
rate purpose and within the appropriation ordinances of those years, and
the act of 1877 authorizing cities and towns to collect back taxes, the col-
lection of which had been defeated, does not require the imposition or
levy of a new tax, but the act is merely remedial to aid in the remedy to
enforce a pre-existing right, and therefore the collection of such back
taxes is not for the payment of debts contracted in excess of the constitu-
tional limitation of the power of the city to create indebtedness. Fairfield
ct al. v. The People ex rel. Mc Crea, 244.
12. Where a city levies a tax within its authorized powers, but fails
to collect the same, the levy being defective in not having been made in
the time required by law, and because not certified to the county clerk
for extension, it is competent for the legislature subsequently to authorize
their collection by certifying the proper amount of the levy to the county
clerk, and having the same extended upon the assessment of the year for
which they were levied, the same as might have been done at the proper
time. Ibid. 244.
13. Under the act of 1877 for the collection of unpaid back taxes, the
common council has nothing to do in the way of the imposition of taxes,
but is merely to ascertain and cause to be certified what was done by the
former common councils, and the only limitation is, that such amount
shall not exceed the appropriation ordinances for the years in which such
taxes were levied. Ibid. 244.
14. The fact that the municipal expenses of a city have been paid for
certain years in which the collection of its taxes was defeated, presents
no constitutional or other grounds why such back taxes may not be col-
INDEX. 703
TAXATION. Back taxes — corporate purpose. Continued.
lected under appropriate enabling legislation, it being a cardinal princi-
ple of taxation under the constitution that each shall contribute his share
towards governmental expenses in proportion to the value of his property.
Fairfield et al. v. The People ex rel. McCrea, 244.
15. Nor will the fact that such back taxes levied are not now needed,
and will not be applied to the particular corporate purposes for which
they were originally required when attempted to be collected, render
their collection improper. They will still belong to the corporation for
municipal purposes, and, like any other surplus, will remain in the
treasury subject to future appropriations, and thereby lessen future taxa-
tion. Ibid. 244.
Municipal taxation for prior tears.
16. Of its extent — construction of act of 1877. The act of 1877 giving
power to the common council to determine and certify the amount which
was required to be raised by taxation for all municipal purposes for any
prior years, for or during which an assessment or levy was attempted
to be made, means the amount that was by the action of the city council
in such prior years required to be raised by taxation for those years, and
not merely for a sum sufficient for the city expenses over and above the
means and revenue derived from licenses and other sources. Ibid. 244.
Special taxation for local improvements in cities, etc.
17. Constitutionality. The constitutional limitation that private prop-
erty shall not be taken for public use without just compensation, to be
ascertained by jury when not made by the State, has reference only to
the exercise of the power of eminent domain, and not to special taxation
of contiguous property for the building of a sidewalk or other public
improvement by cities, towns and villages. White v. The People ex rel.
City of Bloomington, 004.
18. The general requirement in sec. 1, art. 9 of the present constitu-
tion requiring taxation to be by valuation, so that every person and
corporation shall pay a tax in proportion to his, her or its property, is
modified by sec. 9 of the same article, so that the corporate authorities
of cities, towns and villages may make local improvements by special
taxation of contiguous property or otherwise, and does not apply in such
case. Ibid. 604.
19. The constitution of 1870 has authorized the legislature to vest the
corporate authorities of cities, towns and villages with power to make
local improvements by special assessment, or by special taxation of con-
tiguous property, or otherwise, and this justifies an enactment whereby a
town lot may be made chargeable with the entire expense of the construc-
tion of a sidewalk in front thereof. There is no limitation in this regard in
respect of equality and uniformity, in the constitution of 1870, as in that
of 1848. Ibid. 604.
704 INDEX.
TAXATION.
Special taxation for local improvements in cities, etc. Continued.
20. Whether or not a special tax on contiguous property in a city or
town for a local improvement, as, a sidewalk fronting the same, exceeds
the actual benefit to the lots taxed, is not material. It may be supposed
to be based on a presumed equivalent, and where the corporate authori-
ties determine the frontage to be the proper measure of probable benefits,
this can not be disputed or disproved. White v. The People ex rel. City of
Bloomington, 604.
21. A statute investing the corporate authorities of cities, towns and
villages with power to tax contiguous property for the expense of con-
structing sidewalks, leaving it to them as they may think just and equit-
able to determine whether the former mode by general taxation or special
assessment, shall be pursued, or whether there shall be special taxation
of contiguous property, either by a levy on the property of the cost of
making the sidewalk in front of it, or by a levy of the tax in proportion to
its value, frontage or superficial area, is not unconstitutional, but is a
valid law. Ibid. 604.
22. Former decisions. The cases of the City of Chicago v. Lamed, 24
111. 203, and the City of Ottawa v. Spencer, 40 id. 211, holding a special
assessment for local improvements on the basis of the frontage of lots on the
streets to be improved, were invalid, were made under the peculiar limit-
ations of the constitution of 1848, which are omitted in that of 1870, and
hence these cases are no longer authority on the subject. Ibid. 604.
Taxation by the city of Quincy.
23. As to the rate thereof — and by what law governed. The act of 1863
"amendatory of the several acts relating to the city of Quincy, to pro-
vide for raising a revenue therein, and regulating the costs arising under
the charter and ordinances of said city," fixes the limit of taxation in
that city upon real and personal property, at $1.03 upon each one hun-
dred dollars of the assessed value of such property, for all purposes, and
this includes taxes for interest and sinking fund, other than interest on
registered bonds, which is provided for in another way. Binkert v. Jan-
sen et al. 283.
24. The repealing clause in the 5th section of the act of 1863, after
declaring in express terms the repeal of all laws and parts of laws, other
than the provisions thereof touching the levying and collection of taxes
on property within the city, except those regulating such collection, and
all laws in conflict therewith, contains the following: "but this act shall
not affect taxes of said city relating to streets and alleys, or to licenses
of whatever nature, nor any source of revenue other than taxes on real
or personal property." Under the charter of 1857, the city had power,
for the purpose of keeping its streets and alleys, etc., in repair, to levy a
capitation tax. The only taxes relating to "streets and alleys" not
INDEX. 705
TAXATION. Taxation by the city of Quincy. Continued.
affected by the repealing clause of the act of 1863, is this capitation tax.
A general tax on real and personal property for "streets and alleys " is
not within the saving clause of the 5th section of the act. Binhert v.
Jansen et al. 283.
25. The city of Quincy is not incorporated under any general law,
but under special charter granted before the adoption of the present con-
stitution. The act of 1877, " in regard to assessment and collection of
municipal taxes," does not confer upon cities, villages, etc., incorporated
under special charters, the same power to levy taxes to raise the amounts
appropriated by ordinance that cities and villages incorporated under
the general law of 1872 possess, nor does the repealing clause of the act
of 1877 remove the limitations imposed by the charters or the special
laws affecting municipal taxes. That act has reference only to the mode
or manner of assessing such taxes, the purpose being to require uni-
formity in that regard, and has no relation whatever to the rate of taxa-
tion. Ibid. 283.
Uniformity in taxation.
26. A license fee upon foreign corporations doing business in this State,
or upon their agents, not being a tax, a law authorizing its collection
does not violate the constitutional provision respecting uniformity in
taxation, and such corporations may be required to pay a tax in addition
to the license fee. Walker v. City of Springfield, 364.
27. Whether law operates with uniformity. Even if the latter clause of
section 1, article 9 of the constitution of 1870, in regard to taxing ped-
dlers, etc., in such manner as the General Assembly shall, from time to
time, direct by general law, uniform upon the class upon which it ope-
rates, related to taxation and not to license fees, still section 30 of the
Insurance law does not conflict with such clause, as the provisions of
that section operate uniformly on the class to which it applies. It only
applies to cities that maintain a fire department, and it applies to all un-
der the same circumstances, making no exceptions. Ibid. 364.
Uniformity of taxation — back taxes.
28. Where the collection of a tax has been defeated for defects in the
levy, or other proceedings not going to the right to levy the same, and
some of the taxes have been voluntarily paid, a law authorizing the
proper extension and collection of such taxes, which provides for giving
credits to the parties paying personal taxes and to the land for the taxes
voluntarily paid on the same, is not in violation of the constitutional
provision requiring uniformity. Fairfield et al. v. The People ex rel.
Mc Crea, 244.
Forfeited lands.
29. Of the penalty to be added on extending the bach taxes. Under the
statute relating to the revenue, where a forfeiture of land to the State
45—94 III.
706 INDEX.
TAXATION. Forfeited lands. Continued.
has occurred, the back tax and printers' fees, with one year's interest at
ten per cent upon the amount of the tax, is to be added to the amount of
the current year, and this regardless of the fact whether all the formali-
ties required have been observed prior to the rendition of judgment as
to the preceding year. People v. Smith, 226.
Lien for taxes.
30. Actual levy not essential. It is not essential to the lien given by
law for taxes, that an actual levy should be made within the year. If
not made within the year and the taxes are not paid, it is competent by
subsequent legislation to enforce the lien, by authorizing the levy and
collection in subsequent years upon the assessment of the proper year or
years. Fairfield et al. v. The People ex rel. McCrea, 244.
Application for judgment.
31. Of the questions involved. On an application for judgment against
land for taxes, including back taxes on lands forfeited for previous years,
it is not competent to inquire whether the judgments for taxes of previ-
ous years were in strict conformity to the statute. If those judgments
were erroneous, the remedy was by appeal or writ of error. People v.
Smith, 226.
What constitutes a tax.
32. Distinction between a license fee and a tax. See LICENSES, 5.
TENANT FOR LIFE.
In personal property or money.
Of his rights in respect thereto. See WILLS, 17 to 21.
TEXAS AND CHEROKEE CATTLE.
Constitutionality of the act.
1. The statute of this State relating to Texas and Cherokee cattle, and
making a party having them liable for diseases communicated by them,
is unconstitutional, and no action can be maintained under its provisions.
Jarvis et al. v. Riggin, 164.
THREATS.
In civil and criminal cases.
Whether threats may be proven. See CRIMINAL LAW, 13 to 17.
TOWNS.
Power to make contracts.
1. For the prosecution and defence of suits. The statute confers upon
towns at their annual town meetings the power to provide for the insti-
tution and defence of all suits in which the towns are interested, and a
town meeting may properly exercise that power by resolution directing
INDEX.
707
TOWNS. Power to make contracts. Continued.
the supervisor to procure legal services, and such a contract will he
binding on the town when the amount agreed to be paid is not so great,
in view of the interests involved, as to indicate bad faith. Town of Mt.
Vernon v. Patton, 65.
Consolidating towns.
2. In counties under township organization — can only he done upon a vote
of the people. The action of the board of commissioners of Cook county
— a county under township organization — on the 12th day of January,
1880, in attempting to unite the towns of North Chicago, West Chicago
and South Chicago into one town, by resolution of the board, without
submitting the question to a vote of the people, was without authority of
law and void. The People ex rel. Schack v. Brayton, 341.
3. Section 37 of chapter 139, Rev. Stat. 1874, entitled "Township
Organization," expressly provides that county boards in counties which
have adopted township organization shall not have power to consolidate
several towns into one, except that, upon the petition to the board of one-
fourth of the voters in each of the towns proposed to be consolidated, the
question shall be submitted to the voters of said towns, and that a ma-
jority of voters in each town voting shall have voted in favor of the
proposition. Ibid. 341.
4. The first section of the act of 1877, concerning the organization of
towns by county boards, does not operate to repeal section 37 of the
Township Organization law of 1874, in regard to the requirement that
the question of uniting several towns into one shall be submitted to a
vote of the people of the several towns before any action in that regard
can become operative. Ibid. 341.
5. The two sections mentioned relate to wholly different subjects.
Section 37 of the law of 1874 relates to the subject of consolidating
several organized towns into a single town. Section 1 of the act of 1877
has no relation to that subject, but simply provides for the organization
of a new town from territory comprising a city containing a certain
population, situated within an organized town, without regard to the
territorial extent of such new town. The purpose of the act of 1877
was to confer a new power in that regard, not theretofore existing, as the
law of 1874 contained a restriction upon the power to create new towns
in requiring that they should embrace a certain extent of territory. So.
there is no repugnancy between the two acts in respect to the subject of
uniting two or more towns into one, and they may well stand together.
Ibid. 341.
6. Attributing the purpose mentioned to the first section of the act of
1877, it is not obnoxious to the constitutional objection that it permits
the consolidation of two or more towns into one without a vote of the
people. And under this construction of the first section, it being consti-
708 INDEX.
TOWNS. Consolidating towns. Continued.
tutional, it is unnecessary in this case to consider whether the remaining
sections of the act are constitutional or not. The People ex rel. Schack v.
Br ay ton, 341.
Consolidating towns for park purposes.
7. Constitutionality of act of 1879. The act of May 28, 1879, "con-
cerning the continuance of towns for park purposes," does not undertake
to provide for the consolidation of several towns into one, except "in the
manner provided by law," which would be referred to the existing law
on that subject, which provides that such consolidation can only be had
upon a vote of the people, — so the act is not in violation of the constitu-
tional requirement in that regard. Ibid. 341.
TOWNSHIP ORGANIZATION.
Consolidating towns. See TOWNS, 2 to 6.
TRESPASS.
As to the possession of the premises.
1. If a party in possession of real estate is wrongfully ousted by
another, the latter can not by such wrongful act acquire a possession
which it will be a trespass in the former to disturb, provided there-entry
of the person so wrongfully ousted involves no breach of the peace.
Illinois and St. Louis Railroad and Coal Co. v. Cobb, 55.
2. If a defendant acquires possession of land only by wrongfully
ousting the plaintiff, his possession is not lawful, but is unlawful, and
the plaintiff may regain possession in a peaceable manner, and if again
dispossessed by the defendant, he may maintain trespass for the injury.
Ibid. 55.
Proof of title — measure of damages.
3. Distinction between trespass by a mere stranger, and the owner of the
title. A person in the peaceable possession suing for a trespass to the
freehold can never be put upon proof of his title in order to recover
against a wrongdoer having no title. Ibid. 55.
4. When a person in the peaceable possession of land is ousted by a
mere wrongdoer without the authority or command of the real owner, the
party in possession not being a tenant, he may recover the full damages
done, not only to his possession, but to the land itself, the same as if he
were the real owner. The trespasser in such case can not be allowed to
show title in another, and thereby mitigate the damages so as to prevent
a recovery for all damages beyond the actual injury to the possession.
The rule it seems is different when the plaintiff is a mere tenant. Ibid. 55.
5. There is a broad distinction between a case where a mere tres-
passer commits the wrong to the possession of another without title,
and where it is done by the owner of the title, or by one authorized by
INDEX. 709
TRESPASS. Proof or title — measure of damages. Continued.
him to commit the trespass. In the last case the person in posses-
sion can only recover the damage he has sustained to his possessory-
right. Illinois and St. Louis Railroad and Coal Co. v. Cobb, 55.
TRUSTS.
Uses and trusts.
1. Presumption as to estate taken by trustee. A trustee must be pre-
sumed to take an estate only commensurate with the charges or duties
imposed on him, but this is subject to the qualification that such pre-
sumption shall be consistent with the intention of the party creating the
trust, as manifested by the words employed in the instrument by which
it is created. Kirkland v. Cox et al. 400.
2. When statute of uses executes the trust. Under the statute of uses
in force in this State, where an estate is conveyed to one person for the
use of or upon a trust for another, and nothing more is said, the statute
immediately transfers the legal estate to the use, and no trust is created,
although express words of trust are used. . But this has reference only
to passive, simple or dry trusts. In such case the legal estate never
vests in the feoffee, but is instantaneously transferred to the cestui que
use as soon as the use is declared. Ibid. 400.
3. Exceptions to operation of statute of uses. The courts of both law
and equity hold that there are three classes of cases in which the statute
of uses does not execute the use, and when the use remains as it did be-
fore the statute, a mere equitable interest, to be administered only in a
court of equity, viz : 1, where a use is limited upon a use ; 2, where a
copyhold or leasehold estate or personal property is limited to uses ; and
3, where such powers or duties are imposed with the estate upon a donee
to uses so that it is necessary that he should continue to hold the legal
title in order to perform his duty or execute the power. Ibid. 400.
4. If any agency, duty or power be imposed on the trustee, as, by
way of limitation to a trustee and his heirs to pay the rents, or to convey
the estate, or if any control is to be exercised or duty performed by the
trustee in applying the rents to a person's maintenance, or in making
repairs, or to preserve contingent remainders, or to raise a sum of money,
or to dispose of the estate by sale, in all these, and other like cases, the
operation of the statute of uses is excluded, and the trusts or uses remain
mere equitable estates. So, if the trustee is to exercise any discretion
in the management of the estate, in the investment of the proceeds or
the principal, or in the application of the income, or if the purpose of
the trust is to protect the estate for a given time, or until the death of
some one, etc. Ibid. 400.
5. Former decisions. In Harris v. Cornell, 80 111. 67, the remark (re-
ferring to the case of Hardin v. Osborn,) that it had been held that where
710 INDEX.
TRUSTS. Uses and trusts. Continued.
the purposes of a trust had been accomplished, the owner of the trust
became by operation of law reinvested with the legal title and could sue
in ejectment, was unadvisedly made, as the opinion in that case was
withdrawn on a rehearing granted. In 3IcNab v. Young et al. 81 111. 11,
language of like import was used, upon the authority of the same case.
Kirkland v. Cox et al. 400.
6. How party may be reinvested with legal title in trustee. Where the
legal title to land is vested in a trustee, nothing short of a reconveyance
can place the legal title back in the grantor or his heirs, subject of course
to the qualification that under certain circumstances such reconveyance
will be presumed without direct proof of the fact. Ibid. 400.
Devise to trustees.
7. What estate passes to them — construction of a will. See WILLS,
22, 23, 24.
Resulting trust.
8. Whether it arises. Where land is purchased with the money of one
person, and the deed taken in the name of another, a trust results by
operation of law in favor of the person whose money is used. Mathis
et al. v. Stufflebeam, 481.
9. In this case, one of two joint defendants in execution purchased
land at the execution sale, paid the amount of his bid, and received from the
officer a certificate of purchase. Under a misapprehension as to his right
to become a purchaser at the sale, he surrendered his certificate of pur-
chase to the officer and procured another to be issued to a third person,
but retaining it in his own hands until the time of redemption expired. He
then, under some agreement not involving the payment of the money,
delivered this second certificate of purchase to the person in whose name
it was issued, who thereupon assigned it to his wife, and she at once
took a sheriff's deed in her own name. The wife had knowledge of all
the facts, and was a mere volunteer. It was held, a resulting trust would
arise in favor of the person who paid the money at the execution sale.
Ibid. 481.
10. The mere fact that the purchaser at the execution sale procured
the second certificate of purchase to be issued to a third person, could in
nowise operate to bar his rights in the premises. That act was not in
contravention of any rule of public policy so as to prevent a resulting
trust from arising in his favor. Ibid. 481.
11. Nor would the fact that the person so alleging the resulting trust
offered to accept a settlement in respect to the subject of the controversy,
in any way militate against his claim. Ibid. 481.
INDEX. 711
TRUSTEES.
Trustee can not become purchaser.
As, a member of board of education of school district, in respect to bonds
of the district. See MUNICIPAL BONDS, 3.
USES AND TRUSTS. See TRUSTS, 1 to 6.
USURY.
As A defence in ejectment.
Where there is an attempt to recover under a deed of trust. See EJECT-
MENT, 7.
VARIANCE. See PLEADING AND EVIDENCE.
VENUE.
Change of venue.
1. In civil cases — may be upon equitable terms. Under the Rev. Stat, of
1874, an order for a change of venue in a civil case may be made subject
to such equitable terms as safety to the rights of the parties may require,
and the court, in prescribing the terms and conditions, must exercise a sound
discretion, and the exercise of such discretion is no ground of error unless
there is an abuse of it clearly prejudicial to the rights of the party com-
plaining. Mapes et al. v. Scott et al. 379.
2. Where the defendants in an action of ejectment applied for a
change of venue, and it was made to appear by affidavit of the plaintiffs
that they had bought the land from parties who obtained title from the
defendants, or some of them, and that the use of the property was worth
$600 per annum, that two of the defendants resided out of the State, and
that the others had no property out of which the rents or damages for
withholding the property could be recovered, and that the case had once
been tried resulting in favor of the plaintiffs, and that the plaintiffs had
been subjected to a loss of not less than $600 annually since the commence-
ment of the suit, by being deprived of the use of the premises, it was held
no abuse of discretion, and no error, in requiring the defendants, as a
condition to granting a change of venue, to execute a bond to the plaintiffs
in the sum of $500, conditioned to secure the plaintiffs in the payment of
rents for the premises in the event of a recovery by them. Ibid. 379.
3. Of the jurisdiction in court to which the case is ordered to be sent. Upon
the making of an order changing the venue of a criminal case, the juris-
diction of the court wherein such order is made ceases, and that of the
eourt to which the cause is sent attaches, by operation of law, and the
jurisdiction of the latter court does not depend upon the ministerial act
of the clerk of the court awarding the change, and it is not defeated by
his neglect to transmit the original indictment or papers. Goodhue v.
The People, 37.
712 INDEX.
VENUE. Change op venue. Continued.
4. What court may compel transmission of papers. Where a change of
venue is awarded, if the clerk of the court fails or refuses to transmit
the papers, with an authenticated transcript of the record, the court to
which the venue is changed, and not the court awarding the change, is
the forum to which application must be made to compel a performance of
that duty. Goodhue v. The People, 37.
5. Trial without original papers. "While a party indicted for crime,
upon a change of venue has a right to demand that he shall not be put
upon trial until the original indictment is placed on" file in the court to
which the venue is changed, yet the failure to transmit the same is but
an irregularity, which he waives by going to trial without objection on
that account. The failure to transmit the original papers is only cause
for a postponement of the trial, but no ground for a dismissal for want
of jurisdiction. Ibid. 37.
6. Waiver of application by going to trial without objection. Where, two years
after applying for a change of venue, the parties submit the cause to hearing
before the same judge against whom the petition for the change was filed,
the party applying for the change of venue making no objection, this
court will not inquire whether the court erred in overruling the applica-
tion. By going to trial before the same judge without objection, the
party waives any error, if any, in the previous ruling upon the motion.
JVoyes et al. v. Kern, 521.
WAGER.
Limitation of action by loser.
Under sec. 132 of the Criminal Code. See LIMITATIONS, 3.
WARRANTY.
Of a fraudulent warranty. See FRAUD, 1, 2.
WILLS.
Rule of construction.
1. According to intention. Subject to a few exceptions, the principle is
firmly established that a will shall be so construed as to effectuate the
intention of the testator as far as possible; and in cases of doubt, the
scope of the instrument should be considered and its various provisions
compared one with another in ascertaining such intention. To this funda-
mental rule of construction all others, with but few exceptions, must be
subordinated. Welsch v. Belleville Savings Bank, 191.
2. Under the influence of this rule the express words of a will must
sometimes yield to the manifest intention of the testator, and even words
will be added when it is necessary to effectuate such intention. But
courts, under pretence of construction, have no right to either reject or
INDEX. 713
WILLS. Rule of construction. Continued.
supply words, except when it is absolutely necessary to avoid an ab-
surdity and give effect to the manifest intention of the testator. Welsch
v. Belleville Savings Bank, 191.
3. The general rule is, that whenever it can possibly be done, a will
should be so construed as to give effect and operation to every word and
provision in it. Therefore, when the language is clear and unambiguous,
and there is no conflict in its various provisions, and no absurdity will
thereby be involved, the will should be given effect according to the literal
terms used, taken in their general and popular sense, except where tech-
nical terms are used, in which case they should be taken in their technical
sense, unless the context shows they are used in a different sense. Ibid.
191.
4. The later clause must prevail. A later clause in a will, when repug-
nant to a former one, must be considered as intended to modify or abro-
gate the former. Muffitt et al. v. Jessop et al. 157.
Mental capacity op testator.
5. If a testator, at the time of making a will or codicil thereto, is
capable of attending to ordinary business and of acting rationally in the
ordinary affairs of life, the will or codicil will not be set aside for the
want of sufficient mental capacity. And although the testator, about the
time of making the will, may at times have been unconscious from dis-
ease, yet, if he made the same when conscious of what he was doing,
and on his recovery makes one or more codicils thereto, the last several
years after making the will, this will be a republication and adoption
of the will subject to the changes made by the codicil. Brown et al. v.
Riggin et al. 560.
6. Where a party made a will and afterwards made two or three
codicils thereto, all of which were duly attested, it was held error to
instruct the jury, on a contest of the will and codicils, so as to require
them to find the testator capable at the several times when the instru-
ments were executed. If the jury was satisfied of his capability at any
one of the times, they should have been instructed to find the act then
done and the preceding acts valid. Ibid. 560.
7. On the contest of a will for mental incapacity, the question of
capacity involves the simple inquiry whether the testator was or was not,
at the time of making the will, able to understand and reasonably
transact the ordinary business of life, — whether he was able to buy and
sell, collect accounts, and did he understand the business in which he
was engaged. But inability to transact business from physical weakness
does not of itself incapacitate one from making a will. Ibid. 560.
8. An instruction to the jury, on the trial of a contest of a will for
mental incapacity in the testator, is erroneous if it assigns more weight
714 INDEX.
WILLS. Mental capacity of testator. Continued.
to the testimony of nurses and attendants than to the opinion of the
subscribing witnesses. The jury and not the court must judge of the
weight to be given to each part of the proofs in the case. Brown et al. v.
Rig gin et al. 560.
9. The proof of periodical epileptic attacks, attended with convulsions,
loss of consciousness and the usual sequences of such attacks, or proof
of temporary pneumonia supervening such attack, with fever and delirium,
is not such proof of insanity or lunacy as will justify an instruction
based upon the presumption of its continuance. Ibidi 560.
Of the estate devised.
10. Whether for life or fee simple estate. A testator, after devising all
of his personal property to his wife for her only use, used the following
language: "And I further will and bequeath to my wife, A. H., all of my
lands, designated and described as follows: (etc.) together with all and
singular the rents and profits arising therefrom, to the only proper use
and benefit of her and my heirs and assigns forever; and I will and be-
queath that she have all the lands, tenements and goods and chattels that
I may have any right and title to, all to her only proper use and benefit:"
Held, that the widow took an estate in fee simple in all the lands, and
that she would have so taken if the last clause had been omitted. Mur-
fitt et al. v. Jessop et al. 158.
11. As to life estate — power of disposition — present vested interest. Where
a testator devised all of his estate to his wife "for her own free, inde-
pendent and uncontrollable use and benefit for the term of her natural
life," and that she might at her own wish at any time divide the same
among her or her and the testator's children or grandchildren, pro-
vided that his grandchild A should receive from the estate the wife
might leave at her death, the sum of $4000, before such estate should be
divided, and besides this his equal share of the remainder, it was held,
that the wife took only a life estate in the use of the property, and that
the grandson A took a vested interest as to the sum of $4000, bat that the
interest of A and the other children and grandchildren in the remainder
was not to commence until her decease, unless she voluntarily saw fit to
make the division before her death. Welsch v. Belleville Savings Bank,
191.
12. Where a devisee for life of the free use of the testator's entire
estate is expressly authorized to divide the estate among the children
and grandchildren of the testator and the devisee, his widow, it by im-
plication strongly negatives a purpose to authorize her. to dispose of the
estate in any other manner or to any other persons. Expressio unis est
exclusio ulterius. Ibid. 191.
INDEX. 715
WILLS. Continued.
Limitation over — void.
13. When there is unlimited power of disposition. Where, by the terms
of a will, there is given to one an estate, with unlimited power of selling
or otherwise disposing of the same in such manner as the devisee may'
think fit, a limitation over is inoperative and void by reason of its re-
pugnancy to the principal devise. But this doctrine has no application
to a case where a life estate has been given to the first taker in express
terms. Welsch v. Belleville Savings Bank, 191.
Power of disposition.
14. Of its limitations — according to interest. It may be laid down as a
general rule, that in all cases where by the terms of a will there has
been an express limitation of an estate to the first taker, for life, and a
limitation over, any general expressions apparently giving the tenant
for life an unlimited power over the estate, but which do not in express
terms do so, must be regarded as referring to the life interest only, and
therefore as limited by such interest. Ibid. 191.
Life estate in personal property.
15. Of the existence of such an estate. Originally, where a chattel or
other personal estate was given to one for life, with a limitation over to
another, the former took the absolute title, and the limitation over was
void, both at law and in equity. But in the course of time equity in-
terposed in behalf of the remainder-man, holding the limitation over
good as an executory devise, but not as a remainder. At first this rule
in equity was confined .exclusively to dispositions by will of chattels
real, where the use had been given to tenants for life. But now courts
of equity have adopted the more reasonable doctrine that where a
chattel is given to one for life with a limitation over to another, the first
taker really acquires nothing but a right to the use. It is still doubtful
whether a remainder can be created by an ordinary deed, but such in-
terests may be limited by deeds of trust, in which case the trustee takes
the legal title. Ibid. 191.
16. The ancient doctrine which gave the tenant for life the absolute
property still prevails, both at law and in equity, with respect to be-
quests of specific things, the use of which consists solely in their con-
sumption, such as fruits, provisions, etc. The gift of such articles for
life is said to be of necessity a gift of the absolute property, because the
use and property can not exist separately. Ibid. 191.
17. With limitation over — when property must be converted into money. It
may be stated as a general rule, that where personal property is given to
one for life with a limitation over to another and is not specifically given,
and is liable to perish or greatly deteriorate in value by keeping or using
the same, and there is nothing to indicate an intention that the property
shall be enjoyed in specie by the tenant for life, a court of equity will, on
716 INDEX.
WILLS. Life estate in personal property. Continued.
the application of the remainder-man, require the property to be con-
verted into money and properly invested, giving the tenant for life all
accumulations and reserving the principal for the remainder-man.
Welsch v. Belleville Savings Bank, 191.
18. When chattels are specifically given'to the tenant for life he is of
course entitled to their possession and use, and so long as they are used
with ordinary care and prudence, the remainder-man can not be per-
mitted to interfere, even though the use may altogether defeat his future
enjoyment of the property. Ibid. 191.
19. But when a testator gives to one for life a certain sum of money out of
his estate, with a limitation over to another, the former has no right to
the possession of the money thus bequeathed. The title thereto devolves
upon the executor, and it is his duty to see that the same is properly in-
vested, and that the annual accumulations are paid over to the tenant, for
life, and the principal to the remainder-man upon the death of the tenant
for life. United States bonds will be treated as money judiciously and
properly invested by the testator. Ibid. 191.
20. Right of tenant for life to custody of money or United Stales bonds.
Where a testator devises all of his estate, real and personal, to his wife
for life, with remainder over to another after her death of $4000, the
wife, unless executrix, will have no right to the custody of moneys left
by the testator, or to United States bonds, which are in effect money, but
only to receive accumulations of the same. And if such bonds come into
her possession, whether rightfully or not, and she by her written agree-
ment places such bonds to the amount of $4000 in the hands of a trustee
to be reinvested in other bonds of the United States, the intei*est thereon
to be paid to her for life and the principal at her death to be paid to the
remainder-man, she can not afterwards, as tenant for life, disturb the
trustee's possession of the substituted bonds, and can not maintain re-
plevin for the same. Ibid. 191.
21. Estoppel to deny right of vested remainder. Where a party claims in
good faith a vested remainder in a bequest of $4000, which the tenant
for life under the will entertains, and acknowledges its justice by an
instrument under her hand and seal, in which she agrees that a person
as trustee shall take $4000 of United States bonds left by the testator
for her use for life, and invest them in other United States bonds, the
interest thereon to be paid to her during her life, and the principal to be
paid to the party claiming the remainder, which agreement is executed,
and no fraud has been practiced upon her to induce the execution of the
agreement thus made, she will be thereby estopped from afterwards denj'ing
the rights of the party so claiming the remainder, and can not maintain
replevin against tfie trustee for the recovery of the substituted bonds.
Ibid. 191.
INDEX. 717
WILLS. Continued.
Of the estate devised.
22. Devise to trustees — whether in fee simple. A devise of an estate, real
and personal, after the payment of debts, etc., to trustees, with power " to
make such disposal of the estate as shall," in the judgment of the trus-
tees, "benefit and increase the value of said estate," and imposing the duty
of paying to the testator's daughter "such installments of money as in
the judgment of said trustees shall be proper, and sufficient to meet her
current expenses and provide an ample and comfortable support," neces-
sarily implies the power to sell the lands of the testator and convert them
into money or interest bearing securities, and the power implied to sell is
to sell the whole title, and to this is essential the power to convey that
title, requiring as a condition precedent a fee simple estate in the trustees.
Kirkland v. Cox et al. 400.
23. If land is devised to trustees without the word " heirs" and a trust
is declared which can not be fully executed but by the trustees taking an
inheritance, the court will enlarge or extend their estate into a fee simple
to enable them to carry out the intention of the donor. Thus, if land
is devised to trustees without the word heirs, in trust to sell, even in their
discretion, they must have the fee, otherwise they can not sell and con-
vey, and the construction will be the same if the trust is to sell the whole
or a part, and a trust to convey or lease at discretion will be subject to
the same rule. Ibid. 400.
24. A testator used the following language: "As to my worldly estate,
all the real, personal and mixed estate of which I shall die seized," "I
hereby grant, devise and convey and confirm unto" three trustees named,
"in trust," etc., and then directed the trustees to assume and take entire
control of his estate, collect debts, rents, etc., and to govern and control
such interests as might accrue and arise to the estate from time to time,
and make such disposal of the same as should, in their judgment, increase
and benefit said estate, and pay his daughter such installments as they
should deem proper, and sufficient to meet her current expenses and pro-
vide her an ample support, and should transfer his estate to his daughter
upon her becoming thirty-five years of age, if then unmarried, but if
married, then only upon a certain contingency, etc., and in the event of
her death without issue, to pay certain specified legacies, and then direct-
ing that the balance of his estate be divided equally between three char-
itable corporations: Held, that this gave the trustees the entire control
and management of the estate until the daughter arrived at the age named,
she being unmarried, and if she died before that age without issue, the
control and management of the estate continued to devolve upon them,
and that they took the title in fee for the purposes of the trust. Ibid. 400.
Whether devisees take jointly or in severalty.
25. A will construed. Where a testator devised all his estate remain-
ing after the payment of his debts and funeral expenses, to trustees, in
718 INDEX.
WILLS. Whether devisees take jointly or in severalty. Continued.
trust for his daughter, to be held and managed by them until she should
marry or arrive at the age of thirty-five years, and providing, in the
event his daughter should die without issue, certain legacies should be
paid, and the balance to be equally divided between the House of the
Good Shepherd, in St. Louis, Mo., St. Joseph Male Orphan Asylum, and
St. Ann's Infant Asylum, both of Washington City, it was held that the
grant to the three corporations was in severalty and not as tenants in
common, and that on the death of the daughter without issue it was in-
tended to make it the duty of the trustees to make an equal division of
the property between these corporations. Kirkland v. Cox et al. 400.
WITNESSES.
Competency.
1. Of party to suit. In an action by the personal representative of a
deceased person to recover compensation for the wrongful killing of the
intestate by. attacking and shooting him, the defendants are not compe-
tent witnesses to prove matters which occurred between them and the
deceased anterior to the killing. Forbes et al. v. Snyder, Admx. 374.
2. Party as a witness in his own behalf — capacity in which plaintiff sues.
The trustees appointed in a deed of trust given to secure a debt in favor
of another person, brought ejectment for the premises conveyed, assum-
ing to sue "for the use of the executor" of the payee of the debt, who
had died. It was held it could not properly be alleged that the plaintifF
sued as trustee "of the heirs, devisees and legatees" of the payee of the
debt, or for the "use of the executor," in any such sense as would render
the defendant — the grantor in the trust deed — incompetent as a witness
in his own behalf. In such case it must be regarded that the plaintiff
sues in his own right, as holding the legal title to the property, and it is
not to be considered who may be equitably interested in the estate.
Mester v. Hauser, 433.
3. Moreover, there was no evidence that there were any "heirs, de-
visees or legatees" of the deceased payee, so it did not appear the trustee
held any fiduciary character in respect, to such persons; and suing for
the "use of the executor" does not bring the case within any of the
exceptions in the statute affecting the competency of parties to the suit
and interested in the event thereof to testify in their own behalf. Ibid.
433.
4. Husband and wife — -for or against each other. Section 5 of the act
relating to evidence, by its terms implies that the language of section 1
was intended to be used in a sense so broad as to admit husband and
wife to testify for or against each other as other witnesses, in all cases,
except so far as the act provides otherwise, and hence the necessity of the
limitations in section 5 confining such witnesses to specified cases.
Mueller v. Rebhan, 142.
INDEX. 719
"WITNESSES. Competency. Continued.
5. Section 5 of the act also contains affirmative legislation rendering
a husband competent to testify for or against his wife in certain specified
eases, among which are cases where the wife would, if unmarried, be
plaintiff, and cases where the litigation concerns the separate property of
the wife. In these cases the husband may testify for or against the wife
in the same manner as other parties may under the act. Mueller v. Reb-
han, 142.
6. On bill by a married woman to contest the validity of her father's
will, her husband is a competent witness for or against her as to any
matter whatever of which he has knowledge, except as to admissions and
conversations of his wife made during the marriage. Ibid. 142.
Witness criminating himself.
7. Not bound to do so. Where a witness has testified that whatever
judgment might be recovered was for his benefit, it is a proper question,
to discredit his testimony, to ask him whether he had not gone through
bankruptcy without mention of the claim in dispute in his schedule of
credits, but the witness is not bound to answer the same, as it tends to
" criminate him. Taylor v. Mclrvin, 488.
Impeachment.
8. Expression of the rule as to disregarding impeached witness' evidence.
There is no well founded distinction in instructing the jury that if they
believe, from the evidence, that a defendant has sworn wilfully false
as to any of the facts in issue in the case, instead of saying as to any
material facts in the case, they may disregard all his testimony unless
corroborated, etc., all facts in issue being material. Johnson v. The
People, 505.
WRIT OF POSSESSION.
Within what time to be awarded.
1. A decree was entered in a cause settling rights in respect to cer-
tain lands, and giving the defendant thirty days within which to volun-
tarily surrender the possession. On error to the Appellate Court that
decree was affirmed in all respects except as to a clause therein, author-
izing the clerk to issue a writ of assistance in vacation, — in respect to
that clause the decree was reversed and the cause remanded. Upon
reinstating the cause in the court below, and within less that thirty
days thereafter, that court awarded a writ of possession. It was held,
the thirty days allowed by the decree in which the defendant might sur-
render possession, should not be counted from the reinstating of the
cause on the docket, but from the affirmance of the decree in the Appel-
late Court. Smith v. Brittenham, 624.
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