text:
    Henry Johnson, Impleaded, etc., v. Charles M. Worthington, Executor.

      Fraudulent Conveyances—Evidence—Parties—Lis Pendens.
    1. One of the two judgment debtors need not be made a party to proceedings to remove an alleged fraudulent conveyance of property of the other out of the way of the execution.
    2. No one can make himself a necessary party to a litigation by purchasing an interest in its subject-matter while it is pending.
    3. Mere sworn declarations that a transaction was honest are but conclusions, which can not prevail where the existing facts point satisfactorily to a contrary conclusion.
    4. While fraud is never presumed, it may be proven by circumstances and facts which are inconsistent with an honest purpose.
    [Opinion filed May 25, 1889.]

      Appeal from the Circuit Court of Whiteside County; the Hon. Charles Blanchard, Judge, presiding.
    Mr. J. E. McPherran, for appellant.
    As to the general legal principles applicable to a case like the one at bar, there is no need of having any controversy. There are two grounds only upon which this conveyance can be successfully assailed by "the appellee. It must be made to appear that it was entered into, in livnine, by the parties to the transaction with a fraudulent intent; or it must be made to appear that the nature and terms of the transaction itself are such as are deemed fraudulent as a mere inference of law, without regard to the actual motives of the contracting parties. In the one case the fraudulent intent of both parties to the conveyance is a question of fact and must be shown by extrinsic evidence; in the other, the conveyance, under the circumstances, must be made to appear fraudulent, although the parties to it may have acted in good faith. This question of fraud must be proven like any other fact which it is necessary to establish to entitle a recovery. Even if it should be inferred from the evidence that Jacobs made a conveyance of the land to defeat the collection of appellee’s claim, still the-conveyance can not be attacked, unless the evidence conclusively shows that appellant actually participated, at the very time of the making of the conveyance,F5in that act, or had knowledge of the corrupt purpose of Jacobs in that regard. Both parties must be shown by proof to have participated in the fraud actively or constructively. The evidence establishing the participation of appellant must be clear and convincing; it must not be presumed. Hatch v. Jordan, 74 Ill. 414; Miller v. Kirby, 74 Ill. 242; Hanchett v. Kimbark, 118 Ill. 122; Wood v. Clark, 121 Ill. 360.
    The fact that Jacobs was insolvent would not of itself deprive him of the power of selling his property, although the sale might hinder and delay his creditors. It is an every-day occurrence in business circles that parties who are embarrassed, or even insolvent, without legal question, sell and convey their property, which, if held for a while longer, would have been levied on. There is no law that prevents a man from selling his property for a fair price to pay an honest debt, though he may by such act delay some other creditor. Good faith only is required on his part in the sale of his property; the transaction must be fair. A debtor may prefer one creditor to another, or secure a surety who is liable for him in preference to paying other creditors; if he does this in good faith the law will protect his act. Waddams v. Humphrey, 22 Ill. 661; Nelson v. Smith, 28 Ill. 495; Wood v. Shaw, 29 Ill. 44; Bowden v. Bowden, 75 Ill. 143; Welsch v. Werschem, 92 Ill. 115; Tomlinson v. Mathew, 99 Ill. 178; Goemble v. Arnett, 100 Ill. 34; Wood v. Clark, 121 Ill. 359; Frank v. King, 121 Ill. 250.
    Messrs. J. & J. Dinsmoor, for appellee.
   C. B. Smith, J.

This is a bill in chancery to remove an alleged fraudulent conveyance out of the way ¡of an execution. It appears from the record that prior to May 2, 1885, for over twenty-five years, Johnson Jacobs and his wife, Elizabeth, owned and resided on the N. E. J, Sec. 36, T. 22, B. 6. Prior to this date Johnson Jacobs had become largely indebted to various persons and in various ways. Aside from unsecured debt there were mortgages on the land above described amounting to $5,200. Among other unsecured debts was one of $500 for borrowed money from William C. Page, borrowed on January 25, 1884, due in one year, and which, not being paid at maturity, was put in judgment June 10, 1885. Certajn qtlier..xLebts_ against Johnson.Jacobs andTiis-wife,-amounting_to $435.35, were put in judgment on the 11th of June, 1885, in favor of other persons, before a justice, and transcripts filed in the Circuit Court. On May 2, 1885, before any of these judgments were obtained but after the debt accrued, Johnson Jacobs and his wife executed and delivered a deed of the land above described to one Henry Johnson, a step-son of Johnson Jacobs and a son of Elizabeth Jacobs, for the expressed consideration of $12,000 as named in the deed. The deed was made subject to the §5,200 mortgage, and Henry Johnson assumed the payment of the mortgage as a part of the purchase money, and on the same day executed six promissory notes for the remaining $8,800 of the purchase money, running from one to six years, as follows: $1,000 one year, $300 in two years, $1,000 in three years, $1,000 in four years, $1,500 in five years and $2,000 in six years, all at seven per cent, interest per annum. These notes were all secured by a mortgage back to Johnson Jacobs on the land conveyed in the deed; not a dollar of money was paid down. On the same day of the execution of the deed, mortgage and notes, Henry Johnson, the purchaser, made a lease for two years for the same land back to his step-father, Johnson Jacobs, and for the rental Jacobs was to pay the amount of interest on the $5,200 mortgage, and was to, and did release Henry Johnson from paying any interest on his six notes for $6,800 for two years. There was no possession of the land taken by Henry Johnson. Johnson Jacobs has resided on the land ever since, and still occupies it with perhaps an exception of a short time when he moved into town, but again moved back on the farm and now occupies it with his daughter and son-in-law, Henry Juilfs.

The bill charges that the sale of this land to Henry Johnson was fraudulent and void as to creditors, and that it was made to hinder and delay.complainant in the collection of his debt, and that the whole transaction was merely a trick to cover up and so becloud the title as to prevent complainant from levying his execution and making the amount of his judgment, and prays that the deed may be held fraudulent and void and set aside as to complainant. Answer under oath was waived; Johnson—and-Elizaheth..Jacobs answer the bill and deny all fraud, and aver the transaction was bona fide and for a valuable consideration. The answer of Henry Johnson also denies all fraud and asserts that the purchase as to him was in good faith and for a valuable consideration; that he knew nothing of the indebtedness to Page; that at the time of the purchase Johnson Jacobs was indebted to him in the sum of several hundred dollars for groceries; that at the date of the sale he (J ohnson) was liable as surety with said Jacobs on several promissory notes, and that the owners of snch notes desired him to assume and pay such notes as his own; that his then liability on such notes as security was §2,500, and that it was agreed at the time of the sale that such indebtedness, as soon as ascertained, should be credited on such notes first falling due. He alleges the first three notes executed by him have been fully paid. Replication was filed and the cause tried on the proofs taken, and a decree rendered in accordance with the prayer of the bill. Henry Johnson brings the record here on appeal, and asks for a reversal of the decree, and assigns for error that the evidence does not support the finding of the court below.

A preliminary question is made on the want of proper parties to the bill. It appears from the record that conrplainant’s judgment was against Johnson Jacobs and George Jacobs. Appellant insists that George Jacobs was a necessary party. We do not think so. Execution was issued against both, and returned, no property found out of which to make the execution, but aside from this we think inasmuch as the sole purpose of this bill was to remove the deed in question out of the way- of the execution, it was not necessary to make George Jacobs a party, since it does not appear that he had anything to do with the transfer. Complainant had a legal right to proceed and collect his judgment out of either one of the judgment debtors. It also appears from the evidence that Henry Juilfs, prior to the conveyance in question, held notes against Johnson Jacobs for about §2,500 without security, for money loaned to him, and after the deed in question was made to Henry Johnson, and the note and mortgage executed by Johnson back to Jacobs, and after this suit was brought and pending, that Juilfs surrendered his unsecured note to Jacobs, and received in exchange a like amount of notes which had been executed by Henry Johnson to Jacobs, as a part payment of the land, and that said notes are still unpaid and being secured by the mortgage. It is now contended by appellant that Henry Juilfs, being interested in the subject-matter of the suit, was also a necessary party defendant, and that it was error to proceed without him. We think there is no merit in this objection. Juilfs bought these notes after this suit was brought directly affecting the title to the land in which he now claims an interest to the extent of his security. It is a familiar rule of law that no person can buy into a lawsuit or buy an interest in the subject-matter of litigation while the suit is pending and thereby make himself a necessary party to the suit. We think, therefore, that neither George Jacobs nor Henry Juilfs were necessary parties.

On the merits of the case, counsel for appellant strongly insist that this transaction was not fraudulent and that a full and fair consideration was given for the land. All the defendants swear that no fraud was intended, and that, in fact, none existed. Henry Johnson swears that about $4,000 of these notes have been paid by him and surrendered by the application of credits for debts due him from Johnson Jacobs existing before and at the time of the conveyance, and that upon settlements had since the execution of the $6,800 notes it was ascertained that on account of various liabilities he had assumed for Jacobs, and on account of grocery bills due him from Jacobs, that about $4,000 of these notes were paid and should be given up.

We have studied this record attentively and carefully, and are forced to the conclusion that the Circuit Court found correctly, and that this sale was fraudulent and void as to the complainant, and we also think that both grantor and grantee were equally involved in the fraudulent purpose. It would make this opinion too long and serve no useful purpose for us to enter upon a general review of the evidence, and we shall curtail ourselves with a brief reference to some of the prominent and undisputed features of the case in support of our judgment. The record shows that Johnson Jacobs was an old man, deeply involved in debt, constantly borrowing money and becoming more involved with each succeeding year, and without any reasonable hope of paying his debts. His stepson, Henry Johnson, was familiar with his financial embarrassments, for he says he was upon many notes as his security, and' claims to have paid them or assumed them as his own debts. We think it clear that Johnson Jacobs was insolvent at the time this deed was made, and that Henry Johnson knew it On the other hand, the proof is equally clear that Henry Johnson was a man of very limited means and wholly unable to buy a $12,000 farm. He himself testified he had no money in bank, and that his property consisted of a stock of groceries and some book accounts and his claims against Johnson Jacobs for groceries, which turned out in the case to be worth less than §200. He was not a farmer and had no intention of becoming one. He never took possession nor asked for possession of this farm, and though being within seven miles of it, very seldom went near it. He never paid a dollar in cash directly on its purchase, and, as far as appears from the evidence, was never asked for a dollar by Jacobs. When he leased it back to Jacobs he never received a dollar directly in cash for rent from Jacobs, but Jacobs simply went on and paid the interest as usual on the §5,200 notes and mortgages, and the interest on Henry Johnson’s note was canceled, and by this circuitous route it is insisted that Jacobs was paying Johnson’s rent, when, in fact, Johnson gave nothing but a note and mortgage and received nothing back for rent off this valuable farm. Everything was done by indirection. Ho one received any money, no one paid any money, and we think it clear that none of the parties to the transaction ever intended to pay or secure any money as the result of the transfer. How unreasonable and extremely improbable that this old man, the owner of a §12,000 farm, involved in and harassed by debt, should sell his farm without receiving a dollar in cash and accept the entire consideration in notes, secured by a second mortgage running a long time, and to a man unable to pay the one-fourth of the purchase price, and without any adequate means of raising money to pay the debt. Such a transaction argues insanity or a fraudulent purpose. Again, the evidence is uncontradicted that the consideration named in the deed was fully §1,600 more than the land was worth. This fact alone furnishes strong evidence that Henry • Johnson did not regard it very important as to what consideration was named in the deed, or what amount he would secure bv his worthless promissory note, which he never expected to j>ay. Again, if indeed Johnson Jacobs owed Henry Johnson $3,000 or $4,000 or any other amount at the time this deed was made, which was in good faith to be applied as a payment on the land, why was not the amount then ascertained and a balance struck, and the note and mortgage given for the real and correct amount- due, instead of doubling, or nearly so, the amount- in fact due by fictitious notes? It is argued in excuse and explanation of this that the parties were all ignorant and some of them not able to speak English or even to read their own language (being all Germans). But we regard this excuse insufficient, certainly so far as Henry Johnson was concerned. He was a merchant, selling groceries, and knew the effect of giving promissory notes, and a'so certainly not ignorant of the importance of having himself allowed all just credits honestly and fairly due him. There was every reason of prudence and honesty to forbid so reckless a- transaction. The testimony of appellant as to the fairness of the transaction is directly impeached by the testimony of the deputy sheriff, George O. Keefer, who swears that appellant told him that he and Jacobs had now got things fixed so that appellee could not collect this debt, and that he and Jacobs would pay when they got things arranged.

George G. Keefer was a disinterested witness and is entitled to more credit than appellant, and his testimony goes a great way in corroboration of the circumstances tending to impeach the good faith of this transaction. The transaction is further tainted with the admitted fact that Johnson Jacobs accepted in part payment for his farm the sum of $2,000, which appellant claims to be due him from Jacobs, and which was never secured from th; estate of appellant’s father by Johnson Jacobs, and which was used in raising appellant.

The claim was very old and stale, and was outlawed under the statute of limitations, and could not have been enforced against Johnson Jacobs; and yet, in his embarrassment, he is induced, so appellant swears, to allow this $2,000 to be a charge against him in the sale of his farm. This transaction seems very unreasonable to us, and we think is a mere excuse and pretext to show a consideration for the sale to Johnson.

None of the foregoing .facts are contradicted in the evidence, and they seem to ns to lead irresistibly to but one conclusion, and that is that the purpose of both seller and buyer was to hinder and delay complainant in the collection of his just debt. While fraud is never presumed, and must always be proven by fair and satisfactory evidence, still it may and generally must be proven by circumstances and facts which are inconsistent with an honest purpose. Mere sworn declarations that a transaction was and is honest are but conclusions of the witness or party, and. can not prevail where the existing facts point satisfactorily to a contrary conclusion.

The legal propositions we have herein stated are so familiar that we have not regarded it necessary to cite authority in support of them. Finding no error in the record, the decree of the Circuit Court is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Upton, J.

license: Public Domain

text:
    Janet Seavey, Administratrix, v. Fletcher Seavey et al.

      Administration—Discovery—See. 81, Chap. 3, 2. S.—Gifts “Inter Vivos,” and “Mortis Causa ’’—Exceptions—Practice—Sec. 61, Chap. 110, 2. S.—Trial hy Jury—Sec. 5, Art. 2, Constitution—Frauds—Presumption of Regularity.

    1. This court will not consider the evidence in a case tried by the court below without a jury, where the record fails to show that an exception was taken to the final judgment.
    2. Upon proceedings brought by an administratrix for the recovery of notes claimed to belong to an estate, it is proper to refuse a trial by jury in the Circuit Court upon appeal from the County Court.
    3. Section 5, Art. 2, of the Constitution of 1870, was not intended to introduce jury trials in special summary jurisdictions, which were unknown to the common law, and which do not expressly provide for that mode of trial.
    4. The provisions of the Constitution touching trials by jury do not apply to courts exercising discretionary equity powers or jurisdiction.

      • 5. The delivery of indorsed notes to a third person, upon the understanding that .the donor shall receive the interest thereon during his natural life, the same upon his death to be divided equally between persons named, if unrevoked, amounts to a gift “ inter vivos," and also to a good gift “mortis causa."

    6. In actions of this character the County Court is not confined to the technical legal rights of the parties in interest, but may act upon their equities as well.
    7. The presumptions are in favor of the regularity of a judgment of a court of record of general jurisdiction.
    [Opinion filed May 25, 1889.]
    Appeal from the Circuit Court of Ogle County; the Hon. Egbert Jamieson, Judge, presiding.
    Messrs. Morton D. Swift and Joseph Sears, for appellant.
    The administratrix had a right to a jury trial. Sec. 5, Article 2, Con. of 1870; Roberts v. Draper, 18 Ill. App. 167.
    In a recent case in the Appellate Court of the first district, Roberts v. Draper, 18 Ill. App. 167, the law is held as follows :

      “ To constitute a gift inter vivos there must he a gift absolute and irrevocable, without any reference to its taking effect at some future period. The donor must deliver the property and part with all present and future dominion over it.” Citing Dale v. Lincoln, 31 Me. 422; Horthup v. Hale, 73 Me. 66 ; Robinson v. Ring, 72 Me. 140; Grover v. Grover, 24 Pick. 261.
    If such be the law, we claim the evidence is manifestly insufficient to establish a valid gift. ’ It is apparent that Asa A. Seavey did not part with his dominion over the property, but that he retained it fully after the supposed making of the gift.
    Again, this was a case of the delivery of property to a third person for the benefit of the donee.
    In 2 Redfield on Wills, at page 307, the law in such cases is stated as follows:
    “ There can be no question that a delivery to a third person for the benefit of the donee will be sufficient, provided the donor part with all control over the subject of the gift. But so long as the donor retains control over it, the holder is regarded as his agent, and the direction to keep it for the donee will not amount to any present delivery sufficient to create a donatio mortis causa.”

    We claim that although in this case the writer speaks of a donatio mortis causa, the same rule applies to gifts inter vivos. It is sufficiently shown by the evidence that Asa A. Seavey did not part with all control over the subject of the gift, and, in fact, he expressly reserved the control in words, for the purpose of collecting the interest, and the entire control was resumed shortly after the pretended gift, and it is clear that Fletcher Seavey acted as the agent of the said Asa A. Seavey and not as the agent of the supposed donees.
    Again, we claim that the said gift is void by the 6th paragraph of the Statute of Frauds, p. 1199 Starr & C. Ill. Stat., which is as follows:
    “ Every conveyance of goods and chattels on consideration not deemed valuable in law shall be taken to be fraudulent, unless the same be by will duly proved and recorded, or by deed in writing duly acknowledged or proved, and recorded as in the case of deeds of real estate, or unless possession shall really and bona fide remain with the donee.”
    Was there a gift mortis causa?

    The whole evidence of this transaction was the testimony of Fletcher Seavey, who stated, in substance, that on the 25th day of July, 1887, when he was visiting his father at his home, his father arose from his bed and went to a cupboard and took therefrom a key and gave it to him, with these words: “ Here is that key; now, 1 want yon to be sure that my wishes are carried out in regard to those notes.”
    This conversation or transaction was over three weeks before the death of Asa A. Seavey, and it does not appear satisfactorily from the evidence that Asa A. Seavey did not then expect to recover. It does not appear affirmatively that it was the key of the drawer where the notes were kept that was then delivered, or that Fletcher Seavey accepted the trust, and is inconsistent with the testimony of John S. Hiller, who testifies that in August, 1887, he had a conversation with Asa A. Seavey about borrowing money, which he detailed, from which it is apparent that Asa A. Seavey still had the key, and what we claim as fatal to the claim to a gift mortis causa, is, that no words of gift were used, and no sufficient delivery of the property was made.
    Messrs. Dixon & Bethea, for appellees.
    This was not a proper case for a jury. It was a citation against heirs in the County Court, on the probate side, in a special statutory court. Ho jury could be had at common law or under the statute. Sec. 81, Chap. 3, R. S; 1 Williams’ Ex., 331, 336; Higbee v. Bacon, 11 Pick. 423; In Re Wm. Steele, 65 Ill. 322 ; Wood v. Farrell, 97 Ill. 614 ; Heacock v. Hosmer, 109 Ill. 250 ; Sedgwick’s Const. Law, 489.
    The delivery of the notes in question by Asa A. Seavey to Fletcher Seavey in the summer of 1886, with his indorsement, and with the statement that he should hold the notes, give to Asa what interest, if any, he wanted, and at his death divide the notes equally between his two daughters, made a good irrevocable gift, inter vivos, in trust, to Fletcher, for the use of the daughters and the donor. 2 Schouler Pers. Prop., 120; Doty v. Wilson, 47 N. Y. 580 ; Martin v. Funk, 75 N. Y. 134; Minor v. Rogers, 40 Conn. 512; Smith v. Ossipeval, 9 Atl. Rep., 792; Gerrish v. New Bedford Inst., 128 Mass. 159; Love v. Francis, 29 N. W. Rep. (Mich.) 847; Eastman v. Woronoco Saving Bank, 136 Mass. 208; Tillinghast v. Wheaton, 8 R. I. 536 ; Camp’s Appeal, 36 Conn. 88 ; Hill v. Stevens, 63 Maine, 364; Grymes v. Hone, 49 N. Y. 17; Sims v. Sims, 8 Porter (Ala.) 449 ; Pope v. Burlington Saving Bank, 48 Am. Rep. 788, citing 73 Ala. 412; 1 Story’s Eq. Jur., Sec. 607; Dresser v. Dresser, 46 Maine, 48; Padfield v. Padfield, 68 Ill. 210 ; 1 Perry on Trusts, Sec. 86, 96, 102; Otis v. Beckwith, 49 Ill. 121; Brandon v. Brown, 106 Ill. 519.
    The final delivery of bey by Asa A. Seavey to Fletcher Seavey, on July 25, 1887, completed the gift, beyond controversy, and made it a valid gift inter vivos. 1 Pars. Cont. 234; 2 Schouler Personal Prop., 72, 172; Stephenson v. King, 50 Am. Rep. 172, note ; 19 Cent. Law Jour., 423; Dresser v. Dresser, 46 Me. 48.
    The facts in the case show a good gift mortis causa, if a gift inter vivos has not been proved. 2 Schouler P. P., 122, 128, 150, 164, 167 ; Virgin v. Gaither, Adm’r, 42 Ill. 39; Grymes v. Hone, 49 N. Y. 17; Dresser v. Dresser, 46 Me. 48.
    Declarations of deceased that such a gift has been made are sufficient to warrant the finding that there was a delivery. Grangdiac v. Arden, 10 Johns. 293; Doty v. Wilson, 47 N. Y. 580 ; Roberts v. Draper, 18 Ill. App. 167 ; Boudreau v. Boudreau, 45 Ill. 480; Minchin v. Merrill, 2 Edw. Ch. 333.
    A delivery of an unindorsed promissory note makes a valid gift of either kind. It is not necessary for us to prove indorsement. Wilson v. Keller, 9 Ill. App. 347; 1 Parsons on Con., 237; 2 Schouler’s Personal Prop., 72, 75, 67, 79, 80, 137, 157, 158; Brown v. Brown, 18 Conn. 410; Session v. Moseley, 4 Cush. 87; Grover v. Grover, 24 Pick. 261.
    A circumstance favorable to a gift is the relationship of parent and child. 2 Schouler’s Personal Prop., 88, 89.
    In the case of a gift the assent of the donee need not be proved; it is presumed. Forbes v. Jason, 6 Ill. App. 395.
    There is nothing in the statute to prevent the husband from disposing of personal property, free from the claim of the wife, by gift to his children in his lifetime. The husband has such right under the laws of our State. Padfield v. Padfield, 78 Ill. 16.
    Also, to same effect, Kerr on Fraud, 220, note; Holmes v. Holmes, 3 Paige, 363.
   Upton, J.

This was a special statutory summary proceeding, commenced in the County Court of Ogle county by the appellant, as the administratrix of the estate of Asa A. Seavey, deceased, under Sec. 81 of Chap. 3, R. S., against the appellees, for discovery and to obtain the possession. of certain promissory notes therein described, as belonging to the estate of decedent, Asa A. Seavey.

On the hearing in the County Court it was held that Ellen E. Moeller and Clara A. Hughes had in their possession or under their control certain of the notes in the said petition referred to, and that the same belonged to the appellant as administratrix, and the court ordered and directed the delivery thereof to the appellant, and discharged Fletcher and William A. Seavey, finding nothing in their hands to said estates belonging ; from which finding and order an appeal was taken to the Circuit Court of Ogle county. Upon a hearing had therein by the court, without a jury, the finding and judgment of the County Court was reversed and set aside, and the appellees were all discharged, the Circuit Court holding, by its judgment, that the notes so in the hands and possession of the said Clara A. Hughes and Ellen Moeller (of which possession there was no contention), were the notes, property and effects of the said Clara A. Hughes and Ellen E. Moeller, appellees; that they were the lawful owners thereof, by valid gift inter vivos or mortis causa, from the decedent in his lifetime to them, and that appellant, as such administratrix, had no claim thereto or interest therein ; from which finding and judgment of the said Ciucuit Court appellant took an appeal to this court, and it is now before us for review.

The facts appearing in the record before us are, in brief, that Asa A. Seavey, decedent, died intestate in the county of Ogle in August, 1887. Appellant was his widow and is administratrix of his estate. In the lifetime of decedent, prior to the gift to appellees here sought to be established, he was the owner, holder and payee of the notes in question, which are now held by Ellen E. Moeller and Clara A. Hughes, appellees. In the spring of 1886, decedent, desirous of making some necessary provision for the appellees, Ellen E. Moeller and Clara A. Hughes, who were his daughters by a former wife, being himself advanced in years and in poor health, called upon his son Fletcher Seavey, one of the appellees, stating to him that he (decedent) had certain promissory notes in a package which were at the house of one James Donaldson, and which he requested Fletcher Seavey to get and take care of for him. The notes in the package having been obtained as requested, decedent came to his son Fletcher’s house, and being informed that the package of notes had been obtained, stated to his son that he desired them to be divided between the girls, Ellen E. Moeller and Clara A. Hughes, after his (decedent’s) death.

This interview, and those subsequent thereto, were stated on the trial below by Fletcher Seavey, who was called as a witness by the appellees, to have been in substance as follows: “I then said to father, ‘ The mere fact of that package of notes being in my possession may not be sufficient evidence of your intentions as stated to me.’ Father replied, ‘I have taken counsel on that matter; you give me a pen and ink;’ which I did, and father wrote his name across the back of the notes, handed them back to me, and said, Those notes are mine no longer; I want you to be sure and deliver them to the girls (his daughters, appellees,) when I am dead, and the only consideration I ask is, that I have the interest on them, or what of it I may need, as long as I live.’ I told him 1 would like him to tell brother William Seavey of the arrangement he had made, and he said he would. Father spoke to me several times after that of the fact that he wanted the girls to be sure and have those notes. He said several times to me that I must be sure and deliver the notes to the girls, and what interest should accrue upon them that he did not use. I told him I would do so. He said he should trust me to collect the interest on the notes, and give to him what of it he should need to live on. The notes in question were the notes there in that package of notes, which were indorsed and delivered to me by father. Father stated at the time that so long as he was able to go around and attend to it he would collect the interest on the notes, and he done so on two occasions, and then returned the notes to me. These notes remained with me until February, 1887. During that winter, and prior to February, Mr. Sweet’s note became due, and father (who lived about twelve miles from my place) wrote me to bring the Sweet note up to his place. I did so. He said Sweet paid the interest. He gave me back the note; I took it home with me. In February, 1887, father wrote me stating that as I lived so far away from the parties which these notes were against, and the roads were then getting bad, and as brother William lived much more convenient, I had better let him take the notes to collect the interest, and save me the trouble of driving so far, as father was not able tó be around much that winter, as he wrote me. I sent the notes to him for that purpose. '

“Father spoke with me again about those notes, which was in his last sickness, and shortly before his death. I was informed of his sickness, and went up to see him at his request. He said to me that he had put those notes in the package in the bank at Polo. He said William had a key, and he had got a key for me of the box in the bank where the package of notes were put.

“ The next time I saw father he was quite sick, but he got off the bed and took from a wardrobe in the room a key and gave it to me and said, ' Here is that key; now, I want you to be sure and see that my wishes are carried out in regard to those notes, as I have stated to you.’ He said if anything happened to him he wanted those notes disposed of according to the agreement with me.

“ This was his last illness, and on the 26th of July, 1887, he died, a short time after that. I was with him much of the time until his death. He did not leave his house or room after giving me the key. I kept the bey he gave me until after his death. Then I and my biother William went to the bank at Polo and delivered up the key to the bank attendant, and the notes in controversy were delivered to me, and brother went with me and I delivered the notes to my sisters, according to my agreement with my father to do.”

William Seavey, a witness called by appellant, testified, in substance, that he had a conversation with the decedent, his father, about the notes here in question, in July or August, 1886. “Father stated to me that he had been down to brother Fletcher’s and signed the notes over to him; that the interest on the notes, if father needed it, was to be given to him, and at father’s death the notes were to be delivered to and divided between my sisters Mrs. Ellen Moeller and Mrs. Clara Hughes. I can not state the exact words, but this was in su b-stance what he said. I asked father if my brother, Fletcher Seavey, would be obliged to turn those notes over to the girls, my sisters. He said he relied upon Fletcher’s honor, and he thought he would do as he had asked him to do with them. The next time we talked on this subject was on the 9th of July, 1887, at father’s house. I asked him to state over to me again just how he wanted those notes divided, or what he wanted done with them. He then told me again, just as he had before, that at his death the notes should be delivered to my sisters and be divided equally between them. Some time in the winter of 1887 I met father in Polo. He told me that my brother, Fletcher Seavey, had sent those notes up to me, and he wished me to take charge of them and see that the interest was collected. I told father that I did not want to take them over home; I had no place to keep them, and I should not like to take them home. I told him I thought it better to have them at the bank in Polo, as I could get them there, and the parties would be likely to pay the interest at Polo, and asked him to go into the bank and see what arrangements he could make so that I could get them. He went in the bank, soon came out and said we could leave them there. The package of notes was handed the bank attendant, who placed it "in a box, locked it, brought out two keys, said they were the only ones that would open the box, handed one to father and the other to me. After that I went to the bánk, got the Grimes note, collected the interest, which was then indorsed upon it. I paid the money to father and returned the note to the box in the bank.

“ I knew the Oldwine note; it was taken up and a new one given, and a new mortgage to secure it, at Allaben’s office in Polo. The new note -was for $1,000.

“ The notes in the package that I saw were all indorsed by father, and the new note of Oldwine was indorsed by father when it was put back with the other notes in the bank. I got the Oldwine note and mortgage out of the bank at the time the new one was given, but can not tell the date. In August, 1887, father told me at hisjiouse that he had given the key to the box in the bank to my brother Fletcher. The notes were all indorsed in father’s handwriting when we took them from the bank after his death, except the one of Moeller’s, and I went with Fletcher Seavey to Dixon when he delivered those notes after father’s death, to the girls, my sisters, Ellen Moeller and Clara Hughes, as he had requested.”

Mrs. Donaldson, called by appellees, testifies in substance: “1 am a sister of decedent. In February, 1886, brother Asa Seavey brought some papers in a package to my house, handed them to me, and told me to kee]) them until called for. Shortly after this, brother Asa called at my house and wanted the package to get out some notes to collect the interest upon them, he said, and I got the package. The papers in it were notes; I saw them. The notes were against some of the same persons as those in question and the same notes. I gave this package of notes to Fletcher Seavey at the request of my brother, Asa Seavey.

“Asa Seavey stated to me, in 1886, that he had been down to Dixon, had seen Fletcher Seavey, his son, and that his son was coming up after these papers. I knew the package contained the notes in question; I saw them. He stated to me that he had turned the notes over to Fletcher Seavey; that he could have the interest on them, what of it he. wanted, while he lived, and at his death Fletcher was to give the notes to the girls, Mrs. Moeller and Mrs. Hughes. He said he took Fletcher in preference to William, because wlicvt he told Fletcher to do he would do just as sure as he could do it himself. This was after he had turned the notes over to Fletcher. He said at our house, in.the summer of 1887, that Fletcher had put the notes in the bank at Polo; that they had got a box in the bank; that William had one key and that he had the other, and when he got able to ride about Fletcher would lot him collect the interest, and when he was not able William would do it. He said that the key he had was to be sent Fletcher. He was at our house about four weeks before his death; he was then quite weak; bad consumption. He was talking about sending the key of the box in the bank down to Fletcher. He said Fletcher must have it. He stated that he had signed the notes all over to Fletcher for the girls, and ' lie was going to send down and have Fletcher come up and get the key. He was taken sick in a few days after this, and died in a short time.”

J. W. Allaben, called by appellee, stated, in substance: “I am an attorney at law, but not attorney for decedent. Did some business with him and one Oldwine in the spring of 1887. Oldwine had given Asa Seavey a note secured by mortgage, which had become due, and 1 was asked if the mortgage could be continued without making a new one. I said yes, but the mortgage would be due still. Oldwine wanted an extension; Asa Seavey said he could not make a new mortgage because he could not get the old mortgage then, and then the matter ended for the time. Some days after this, Oldwine and Asa Seavey came into my office with William Seavey. I made a release of the old mortgage, drew a new note for §1,000 and a mortgage to secure the same. After I had drafted the new note and mortgage, Asa Seavey asked in whose name I had drawn the new paper. 1 replied, in his name. He said it belonged to another party, and asked me how about that. I told him he could assign the note or the mortgage and that would be all right. He said the note belonged to some of his children, or one of his sons, or something of that kind.”

Dr. Snyder, a witness called by aj>pellee, stated, in substance: “lama physician; called on and attended Asa A. Seavey during his last sickness. Was first called July 26, 1887. He was then seriously ill; difficulty with lungs and stomach. He never recovered; it was his last sickness. When first called he asked if I thought I could get him up again. I told him possibly I could for a little time, but that he could not get well. I gave him to understand that he could not get well, that there was no hope for him.”

John S. Miller, called for appellant, stated, in substance: I gave decedent a note for §700, which is not paid. In November, 1886, I paid the interest on that note to Asa A. Seavey. He had the note then at my house. I indorsed the interest paid upon the note; did not see any indorsement of Asa A. Seavey’s name on the back of it. About the second week in August, 1887, I applied to Asa A. Seavey for the loan of $100. He had not the money with him; said it was in a hox at the bank in Polo, and he could not get it out; thought in a day or two he could. He was sick then. He said William Seavey could get it. I did not get the money. I am seventy years old.”

D. M. Smith, a witness called by apopellant, stated, in substance : ' “In April, 1886, I gave a note to decedent for about $132, for money loaned. March 5, 1887, called at decedent’s house to pay interest on the note. Asa A. Seavey said he could not take it, for the note was down at the .bank in Polo. I paid him as interest to apply on the note $10, took his receipt therefor, and he was to meet me some day and indorse it on the note. Afterward met him in Polo; asked him to make the indorsement. We went into the bank, he gave a key to the cashier and told him to hand to him his pocketbook. It was handed to him. We went into another room. I indorsed the payment on the note. I did not see Asa Seavey’s name on the note, and I don’t think it was there.”

Asa Grimes, a witness called by appellant, testified, in substance: “I knew decedent in the fore part of the year 1886. Seavey had my note. I paid the interest on it to William Seavey, a son of Asa A. Seavey; I paid $10. In 1886 Asa A. Seavey called upon me for the interest; he was going somewhere, and I gave him the interest on one note and $20 on the principal. In the spring of 1886 we made anew note, and the two notes are against me yet, unpaid. I don’t think my notes were indorsed by Asa A. Seavey, hut can’t tell. I made interest payments to Asa, except once to William.”

Frank Oldwine, called by appellant, in substance stated: “I knew decedent in his lifetime; had done business with him. Gave him my note for $1,500, secured by mortgage in 1887, in January. I had paid the interest and $400. before this, and I wanted to extend the payment; the old note was due then. He said I could have the money longer if I wanted it, he guessed. There was then due about $1,100, and some interest. Seavey said he did not have the note; that it was down with his son. If I would come the next week or so he would send, down and get it. On the 12th of February, 1887, I went again, and paid Seavy $100, and what interest was due, and he said I could keep it as long as I wanted to. I was not satisfied with that, and a new note and mortgage was made by lawyer Allaben, at Polo, for $1,000, and I took up the old note and I have it home now. It was indorsed by Asa A. Seavey.”

This, in substance, was all the evidence shown by the record bearing on the contention now before us.

The record does not show any exception to the final judgment rendered in this case. Sec. 61 of the practice act, Chap. 110, R. S., requires a bill of exceptions in trials by the court in questions of fact. In Fireman’s Ins. Co. v. Peck, 18 N. E. Rep. p. 752, the Supreme Court of this State held, that “ in cases tried by the court, without a jury, the bill of exceptions must show that an exception was taken to the final judgment of the court, and if that is not done, the appellate court will not look into the evidence, but will presume that it sustains the finding of the court below.”

Manifestly, then, the findings of the court below upon the facts ought not to be disturbed by this court, and the judgment of the Circuit Court should be affirmed, unless appellant’s contention on questions of law presented in this record, unaffected by questions of fact, call for the interposition of this court.

First. Appellant contends that the trial court erred in refusing appellant’s motion for the trial in the Circuit Court of this proceeding by a jury. It must be conceded that appellant obtained no right to a trial by a jury simply by the appeal to this Circuit Court. It was atrial de novo, and unless the proceeding in the County Court presented a proper case for a trial by jury in that court, such right could not be acquired by an appeal to the Circuit Court. This proceeding was for the discovery of and to obtain information concerning the possession of certain promissory notes in the petition particularly mentioned, and was not designed to aid in the collection of debts due to the estate. Williams v. Conley, 20 Ill. 643.

This is a proceeding in the County Court, sitting in probate, unknown to the common law. At common law, jurisdiction in cases of this character was vested in the ecclesiastical or chancery court, and such courts had no juries. Williams on Ex., Vol. 1, p. 336, and notes.

Sec. 5 of Art. 2 of the Constitution of 1870, which provides that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate,” was not intended to introduce jury trials in special summary jurisdictions which were unknown to the common law, and which do not provide expressly for that mode of trial. Ward v. Farwell, 97 Ill. 614-15, and cases there cited.

It was held by the Supreme Court in The People v. Abbott, 105 Ill. 392, which was a proceeding under the provisions of the same statute, and of the same nature as the case at bar, “That proceedings under this statute were summary proceedings, and in this class of cases, even if it is established that the property claimed is in the possession of another, and that it is the property of the estate, the court is not bound to order its delivery to the administrator. The court is vested with a discretion, and is not bound by any arbitrary rule of law to make any special order, but its discretion should be so exercised as best to preserve the estate and promote its honest, complete and prompt administration; and in this class of eases arising under the statute now in question, the County Court is not limited to the technical legal right of the parties, but should act upon their equities. The People v. Abbott, supra, and cases there cited, and 10 Ill. App. 62. In Peacock v. Mosmer, 109 Ill. 250, it was held that neither the provisions of the Constitution of 1848, or of 1870, in regard to trials by jury, was ever understood as applying to cases over which courts of equity have jurisdiction,” and it might have been added with propriety, it is believed, or to courts exercising discretionary equity powers or jurisdiction.' It was held in In Re William Steele, 65 Ill. 324, that “A citation to an administrator to account is not a suit at law, but.the exercise of a summary power confered by statute and likened to a bill of discovery in chancery to sift the conscience.” The same doctrine is held in Gilbert v. Guptill, 34 Ill. 112.

In Howard v. Slagle, 52 Ill. 337-340, which was an appeal from an order of the County Court approving settlements of estate, etc., the court say: “We take occasion to say the Probate Court should, on the trial of this case, proceed as though .a bill in chancery had been filed, and hear the evidence * * without the introduction of a jury, * * as in ordinary chancery cases,” etc.

Hot that the County Court was invested with chancery jurisdiction, but that in the exercise of discretionary power conferred upon that court in a summary statutory remedy, no jury is required. It is believed that the right of trial by jury in this class of proceedings was not “enjoyed” or seriously claimed by the people of this State prior to the adoption of the Constitution of 1870, and therefore is not within the scope or purview thereof. It is certain that in this class of cases the right is not conferred by any statutory enactment of the State, and hence we conclude that the Circuit Court was not in error in so holding.

It is true in the case of Robertson v. Draper, 18 Ill. App. 167, a jury was used in the Circuit Court upon the trial of that case, but the question was not raised or presented, or in any way passed upon in either the trial or appellate courts.

It is further contended by appellant that it was error in the presiding judge at the August term, 1888, to refuse to vacate the judgment entered by the trial judge in vacation on appellant’s motion. The record dncloses a full hearing before the trial court, a submission of the case to that court, on briefs of counsel to be thereafter filed, which were filed with the court, and after due consideration the opinion of the court was filed in writing in the case, which fully authorized the judgment entered thereon, and forasmuch as it does not affirmatively appear that the judgment and entry thereof was unauthorized by the terms of the submission and the agreement of parties, and inasmuch as this point is not presented by the bill of exceptions, we are precluded from its examination, and must presume in favor of the 1 ;ality of the judgment of the Circuit Court. Deitrich v. Waldron, 90 Ill. R. 116; Steinman v. Steinman, 105 Ill. R. 348; Fireman’s Ins. Co. v. Peck, 18 N. E. Rep. (not yet reported) 752, supra.

It is claimed that the delivery of the notes in question, as before stated, and the indorsement thereof, and declaration to Fletcher Seavey at the time of such indorsement and delivery, constituted a trust for the benefit of his daughters, Mrs. Moeller and Mrs. Hughes, of the notes, and valid as a gift “inter vivos,” as found by the trial court, or if not, still valid as a gift “mortis causa,• ” indeed, this is the turning point in the case, in law and fact. Conceding for the moment that we are at liberty to examine the facts as well as the law upon this contention, as fully as if presented by a bill of exceptions in the record before us, and further conceding that the evidence hereinbefore recited was all the evidence introduced on the hearing in the trial court, as appellant claims, let us briefly examine the question—did the trial court err in its finding on the hearing of this case, either as to the law or the facts, to the manifest prejudice of the appellant, as is claimed in the argument before us?

In Otis v. Beckwith, 49 Ill. 121, where a policy of insurance on the life of the assignor was voluntarily assigned by him to a trustee for the benefit of his three children, notice of which assignment and trust was given to the insurance company, and also to such trustee, who accepted the trust, but the policy and the assignment both remained in the possession of the assignor, and was found after his decease among his other papers, it was held, in a suit by the trustee against the administrator of the assignor to compel a surrender of the policy to him as such trustee, and that he be declared the owner thereof:

First. That an actual delivery of the policy and assignment thereof to the trustee was not necessary to complete the trust created.

Second. That the acts of the parties—the one notifying the other of the assignment and trust, and his acceptance thereof—constituted a sufficient delivery to complete the title in the trustee.

Third. That the object sought to be accomplished by the assignor in making the assignment, to make provision for his children, being established, equity will cany out such intention, though the transfer be voluntary and without consideration, the assignor never having manifested any desire to retract the act.

In such cases equity will look to the substance of the act done, and the intention with which it was done, and in the absence of fraud, carry out such intention and give it full effect. To the same effect are Radfield v. Radfield, 68 Ill. 210; Woodburn v. Woodburn, 11 West. R. 789. In Schouler on Personal Property, Vol. 2, p. 120, it is said: “ Certain reservations annexed to a gift by a donor have been deemed quite consistent with the purpose of gratuitous transfer. There maybe a gift, notwithstanding the donor reserves the right to obtain or receive some kind of personal profit or benefit out of the transfer, as in the instance of a gift of money, with the reservation by way of interest. Some of the latest cases carry the donor’s right of reservation very much farther, even to the extent of not requiring the donor to totally exclude the power or means of retaining possession of the gift.”

In Doley v. Wilson, 47 N. Y. 580, a father gave his son a certain .amount of money, reserving the interest thereof for life, and it was held a gift “inter vivos” and not a loan or advancement, the question turning on the intention of the father, the donor. In Stone v. Hackett, 12 Gray, 227, Kitteridge gave certain stocks to Stone to hold in trust, to pay the income during his life to Kitteridge, the donor, and at his death to divide the same between certain societies, naming them; Kitteridge, the donor, reserved the right to modify the use or to revoke the trust. The income was paid to the donor during his life. This was held a valid gift, “ inter vivos.” The court said : “We know of no principle of law which renders a transfer of property “inter vivos” invalid, because the donor never parted with his power or dominion over the property, or retained the right to make or annul the trust, etc. The entire jus disjyonendi was in the donor.”

In Grover v. Grover, 24 Pick. 261, the donor handed over to Blanchard a note, secured by mortgage, which was unrecorded, at the same time saying, I will make a present of these to you if you will accept them.” Before acting the donee handed the note and mortgage back to the donor, saying, “you may keep the papers until I call for them, or collect them for me.”

There was no assignment of the note or mortgage; afterward the donor put the mortgage on record, and after the donor’s death the note was found among his papers unindorsed by him. The court held that “the note passed without indorsement, and that it was a valid gift inter vivos, and was not revoked by their re-delivery to the donor.” Under many modern authorities an actual delivery of the thing donated is not absolutely essential to make a gift. A trust, has been held, may be declared by the donor for use of another by parol. In Martin v. Funk, 75 N. Y. 134, Mrs. Bloom deposited in bank §500, declaring that she wanted it held in trust for Lillie Willard. The account at the bank was so entered, and the pass book delivered to Mrs. Bloom, who remained in possession of it until her death. Miss Willard, the beneficiary, was entirely ignorant of the deposit. Mrs. Bloom drew out of the bank one year’s interest on the deposit. The remainder, with accruing interest, remained in the bank. It was held that this was a valid gift, “ inter vivos? After a careful examination of the authorities the court say: “ The circumstance that the donor did not intend that the object of her bounty should know of the gift until after her death, is not inconsistent with the gift; or if the donor may have believed that such deposit might be withdrawn during her life, and the money thus deposited converted to her own use (while it is not established that she entertained any such belief tut if she did), it would not change the legal effect of her act.”

To the same effect are Miner v. Rogers, 40 Conn. 512, and Smith v. Ossipee Savings Bank, 9 Atlantic Rep. (N. H.) 792, which last case was a deposit of money in bank in the n^me of another, subject to the right of the depositor to take the income during the life' of the donor. It was held to be a valid gift “ inter vvoos? In Ganish v. New Bedford Inst. 128 Mass. 150, “ A” deposited money for his grandchildren, kept the pass boob himself, received and used the dividend from the deposit during his life. It was held a valid gift, “ inter vivos.” To the same effect, on the question of actual delivery and trusteeship, are the following: Love v. Francis, 20 N. W. Rep. 847; Eastman v. Moronoco Sav’gs Bk., 136 Mass. 208 ; Tillinghast v. Wheaton, 8 R. I. 536; Camp’s Appeal, 36 Conn. 88; Hill v. Stevens, 63 Maine 364; Grymes v. Hone, 49 N. Y. 17; Sims v. Sims, 8 Porter (Ala.) 449.

In the case at bar, decedent, Asa A. Seavey, made declaration of trust as to the notes in question, accompanied with delivery thereof to Fletcher Seavey as trustee, who in effect-retained possession thereof until the donor’s death, for the benefit of his daughters, Mrs. Hughes and Mrs. Moeller. The decedent reserved the right to have the interest accruing upon such notes, or so much as he should need for support during his natural life, and at his death the notes were to be delivered to the beneficiaries and divided between them. The intent of the donor was manifest, the trust or gift was not revoked, but re-asserted again and again until within a few days of his death.

The deposit of the note in the bank at Polo was made with the knowledge and consent of the donor and trustee, and the trust accepted, and from the time of creating such trust until his death, Asa A. Seavey declared that the notes in question belonged to his daughters, the appellees.

We think, therefore, that the trial court did not err in holding such disposition as is here shown of the notes in question a valid gift “ inter vivos.” But, even if that were not so upon the facts here presented, and the law, as we understand it to be, we should be inclined to hold that it would constitute a good gift, “ mortis causa” of the notes in question, and so the appellant could not have been prejudiced by the ruling and judgment of the trial court.

In support of this view may be cited 2 Schouler on Personal Prop. 128, 148, 150. And if made to a third person in trust, it is not revoked by death of the donor before delivery. Schouler Personal Prop. 80, 165, 164 and 167; Dresser v. Dresser, 46 Maine, 17; Grymes v. Hone, 49 N. Y. 17; Virgin v. Gaither, 42 Ill. 39; Woodbnrn v. Woodburn, 11 West Rep. 189.

Appellees’ right to the notes in question could have been enforced in a court of equity against the trustee, and the County Court sitting in probate in this proceeding was not limited to the technical legal right of the parties, but was authorized to act upon their equities. The People etc., v. Abbott, 105 Ill. 593; Brandon v. Brown, 106 Ill. 519; Millard v. Haines, 119 Ill. 198, and cases cited therein.

Our attention has been called by appellant to the case of Roberts v. Draper, 18 Ill. App. 167, as announcing a different rule. We have examined that case with care, and find nothing there in conflict with the views hereinbefore expressed.

The general rule of the common law is, in the case last cited, stated with the concise brevity and accuracy of the distinguished jurist who wrote the opinion in that case, but the most cursory examination of the facts of that case will establish that it can have no application to the one at bar.

We think See. 6, Chap. 59, R. S., title “Frauds,” does not apply to the case at bar, because

1. The possession of the notes in question, really and bona fide, did remain in the agent or trustee of the donor.

2. The gift in question is not attacked by creditors of the donor, or required for payment of debts against his estate, and is founded upon a good consideration (love and affection), and hence can not be assailed by the donor, his heirs, administrators or executors. Campbell v. Whitson, 68 Ill. 240, and cases cited. We have also examined all the authorities cited by appellant, in his brief before us, with what of time and care we had at our command, and in our judgment the same are not sufficient to establish appellant’s contention in the Case, and finding no substantial error in the proceedings and judgment of the Circuit Court, for the reason before stated that judgment must be affirmed.

Judgment affirmed.


text:
    The Village of Braceville v. William Doherty.

      Municipal Corporations—Licenses—Regulations in Restraint of Trade —Monopolies—Discrimination between Residents and Non-Residents— Peddlers.

    1. An ordinance imposing a license fee upon non-resident peddlers only, is unreasonable, against public policy and in conflict with the Constitution and laws of this State, and, therefore, void.
    2. A subsequent act which is general, does not abrogate a former act which is particular.
    3. Where the right of a municipal corporation to pass a particular ordinance is questioned, the burden is upon it to show authority for so doing.
    [Opinion filed May 25, 1889.]
    Appeal from the Circuit Court of Grundy County; the Hon, Charles Blanchard, Judge, presiding.
    Messrs. S. C. Stough and T. F. Clover, for appellant.
    Can a judgment against appellant be sustained because the village, in the first section of one of its ordinances has given, in the opinion of the court^n unwarrantable definition of the word “peddler?” Even if this section of the ordinance entitled “Peddlers,” in its exposition of that term is unreasonable and void because of its attempted discrimination between resident and non-resident persons, still the balance of the ordinance ought not to be invalidated by its infirmity. An ordinance may be void in part and valid in part. Bishop on Statutory Crimes, Sec. 26; Kettering v. The City of Jacksonville, 50 Ill. 39; Harbaugh v. The City of Monmouth, 74 Ill. 367.
    Under this rule Sec. 2 of that ordinance, which provides that “ It shall be unlawful for any such peddler to exercise his calling within the village without first having obtained a license to do so,” is free from the objection alleged against Sec. 1, and no reason is perceived why it, in connection with Sec. 12 of the ordinance entitled “ Ordinances,” which declares that a penalty of not less than $3 nor more than $100 shall be adjudged against a person guilty of a breach of any ordinance to which no special fine or penalty is attached.
    The only result of holding Section 1 invalid would be to remit to the court the power and duty of determining for itself who “should be deemed a peddler,” and what should constitute peddling.
    But even if the ordinances so far noticed were insufficient to command a judgment of guilty against appellee, the by-law entitled, “ Licenses,” which was offered in evidence, is sufficiently broad and comprehensive to embrace the case at bar. Section 5 provides that, “It shall be unlawful for any person to exercise or carry on, directly or indirectly, within the limits of the village of Braceville, the trade, business, occupation or employment * * * ” of peddlers and hawkers “ without first procuring a license therefor.”
    Section 7 provides that “ Any person violating any of the provisions, sections or clauses of this chapter shall be liable to a penalty of not less than three dollars nor more than one hundred dollars.” This ordinance is a complete by-law against peddling within the village without a license, and subjects the violator of it to a penalty of not less than three dollars nor more than one hundred dollars. In the light of this ordinance the judgment of the court against appellant was manifestly erroneous, unless, indeed, it was permissible for the defendant to assail it with the objection of practical indiscrimination by proving, as was done against the objection of appellant, that there was a manufacturer within the village who hauled his pop about the town and sold it without paying any license. We can not perceive by what authority of law this ordinance can be rendered void by proof of an omission to enforce it in all cases. If the failure to enforce the law in one instance will excuse its enforcement in another, then every law upon the statute book is liable to abrogation. Proof of the non-prosecution of one offender ought not to warrant the acquittal and discharge of another. The admission of this testimony against the objection of appellant was, in our opinion, error. The case of the resident manufacturer is quite different from thé one at bar, and regarding this testimony irrelevant and incompetent as we did, and this manufacturer (and he is nothing more) not being on trial, appellant’s counsel refrained from going into that question, and produced no evidence respecting his business.
    In all respects, except only as to the offense charged, the case of Harbaugh v. The City of Monmouth, 74 Ill. supra, is similar to the one at bar. In that case the defendant was charged, in a complaint, with having sold liquor within the corporate limits of the city, contrary to the ordinances. The case was tried before a magistrate and the defendant adjudged guilty, from which judgment he appealed to the Circuit Court, where, upon the trial, the court was asked to give the following instructions:
    “The court instructs the jury that it is incumbent upon the plaintiff to prove the material facts as charged in the complaint, and if the jury believe that the complaint has not been proved as charged, they will find defendant not guilty.” The instruction was refused, and our Supreme Court, in speaking of it, say: “ On the trial of the cause .in the Circuit Court it was the duty of the court to have the cause tried on its merits without regard to the complaint. ■ It was a matter of no moment whether the complaint was technically correct or not; the real question before the jury was, whether there had been a sale by defendant, without regard to whether the evidence corresponded with the complaint or not. This was the real question for the jury, and no error was made in refusing the instruction,” These remarks are so pertinent to the case at bar that no comment can make them plainer.
    The central idea of revenue can not fairly and justly be applied to the resident and non-resident peddler. The difference in residence produces inequality in the tax. The resident peddler contributes to the expense of the municipal government, while the non-resident peddler pays nothing. The goods and factory of one bear their proportion of taxation, while the goods and factory of the other are entirely exempt. Where one aids in the establishment and maintenance of public schools, streets and markets, and assists generally in the building up and making of a city, is that ordinance which requires of a non-resident a license fee for the privilege of enjoying the market thus created unreasonable because the same fee is' not exacted of the resident citizen? Is it not rather a just, instead of an unjust, discrimination? Where one creates a market at his own expense for the sale of his goods, would it be fair or just to invite foreigners and nonresidents to enjoy its benefits upon an equal footing with him? The one who creates a market and pays for it should be permitted to sell his goods therein without taxation; but the person who has not assisted in establishing the market, in reason and justice, has no such claim. We understand there is no constitutional or statutory prohibition against an ordinance like this, but that its validity is to be determined upon a consideration of whether it is just and reasonable.
    Messrs. William Mooney and A. R. Jordan, for appellee.
   Upton, J.

This proceeding was commenced before a justice of the peace, upon complaint in writing made upon oath, on which a warrant was issued, appellee arrested and held to bail, and upon the hearing, found guilty. A fine was assessed of three dollars against him, with costs, from which an appeal was taken to the Circuit Court, where it was heard by the court—a jury being waived—and a judgment was then rendered in favor of appellee, and against appellant for costs, from which an appeal was taken to this court.

The complaint upon which the warrant for appellee’s arrest was based, was the alleged violation of section one of an ordinance of the village of Braceville, entitled “Peddlers,” which section reads as follows:

“ Sec. 1. That every non-resident person who shall sell, or offer to sell, any goods, wares, or merchandise or other articles of value, or barter or exchange, at any place in or along or through any of the streets, avenues, alleys, or other public places, or the private houses of the village, shall be deemed a peddler.”

The second section of the same ordinance further provided :

“ Sec. 2. It shall be unlawful for any such peddler to exercise his calling within the village without first having obtained a license so to do.” And by
“ Sec. 3. The president is hereby authorized to grant such peddler’s license, to any person in his. discretion, who may apply therefor, upon his paying to the village clerk such amount, for such time as may be agreed upon, according to the scale of fees set forth in the chapter on licenses.”

By Sec. 12 of chapter entitled “ Ordinances,” it was provided : Whenever, in any ordinance, the doing of any act, or the omission to do any act or duty, is declared to be a breach thereof, and there shall be no fine or penalty declared for such breach, any person who shall be convicted of any such breach, shall be adjudged to pay a fine of not less than §3 nor more than $100.”

The scale of fees which is to be paid by non-resident peddlers, as stated in the last clause of Sec. 2 of the above recited ordinance, entitled “ Peddlers,” will be found in Sec. 6. entitled “Licenses,” and is as follows:

“ Sec. 6. When a license shall be granted to any person for the purpose of promoting the doing of any of the things mentioned in this chapter, the fee to be paid into the village treasury shall be according to the following schedule of license fees: * * * Peddlers and hawkers, $2 per day, $7 per week.”

The appellee is a manufacturer of pop, ginger ale and soda water in Braidwood, Will county, Illinois, and a non-resident of the village of Braceville.

For some months prior to the commencement of these proceedings, appellee had frequently contravened the provisions of the above recited ordinance, by peddling his pop, ginger ale and soda water within the corporate limits of Brace-ville, without license, or the payment, or offer to pay, the license fees required of peddlers thereby. The appellant municipality of Braceville is a village in Grundy county, lilinois, and, as we understand from the record before us, was duly organized under and pursuant to the provisions of Chapter 24 of the Revised Statutes of this State, title “ Cities, Villages and Towns.”

It is conceded that the appellant municipality, under the Constitution and laws of this State, had the general power to license, tax and regulate, prohibit and suppress hawkers and peddlers, within its jurisdiction; but the contention of the appellee is, that the ordinance here in question is invalid and void, for the alleged reason that it is unreasonable, and against public policy and the Constitution and laws of this State; makes unjust discriminations against the citizens of the State, and against non-resident citizens of the village of Braceville.

This claimed legal result, while not in terms conceded by appellant’s counsel, is sought tobe avoided by “conceding for argument, that” Sec. 1, of the foregoing recited ordinance entitled “Peddlers,” is void for discrimination, etc., as claimed; still it is insisted the Circuit Court erred in giving judgment for the appellee, for the alleged reason-that Sec. 2 of the same ordinance, entitled “Peddlers,” together with Sec. 12 of ordinances entitled “Ordinance,” were valid and free from objection, and that, under the evidence in the case, entitled appellant to judgment, etc.

We can not yield our assent to that proposition. Sec. 1, relating to peddlers, defines and expressly declares who shall be deemed peddlers, under the ordinances and by-laws of the village of Braceville. Who are they ?

Every non-resident person, who shall sell, or offer to sell, any goods, wares, merchandise, or other article of value, within the corporate limits of that village, is the certain and unmistakable answer in the language of the section quoted. Without Sec. 1 (or if void, and without full force and effect being given to the discriminating clause thereof) Sec. 2 could have no force and effect. It provides: “ It shall be unlawful for any such peddler ” to exercise his calling within the village, without having obtained a license, etc. What peddlers are here referred to ? Manifestly those and those only, who had been before mentioned in Sec. 1, and defined as non-residents of the appellant village.

It is further suggested, in argument, that even if the entire ordinance relating to and entitled “Peddlers” should be held unavailing, still Sec. o of the ordinance of the village, entitled “ Licenses,” is sufficiently comprehensive to embrace the case at bar and entitle appellant to judgment.

The record before us discloses that the several ordinances above referred to under the titles “Licenses,” “Peddlers” and “Ordinances” were but parts of aseries of “by-laws,” passed and in force at the same time, for the general government and especial regulation of the village, and as such should be construed together as in pari materia. In that view the special ordinance relating to “peddlers” might be regarded as a special enactment, controlling the general ordinance relating to “licenses” so far as the same relate to the same subject, and therefore the term “ peddlers,” as used in the fifth section of the chapter, title “ Licenses,” would be held to refer only to such persons as were defined “peddlers” in the special ordinance upon that subject, viz., non-residents of the village. This by-law under consideration must, as all will concede, be governed by the same canon of construction as are all other legislative enactments, viz., the legislative intent.

It is a fundamental principle that a general enactment does not operate as a repeal of a special law on the same subject, although enacted at the same session. So a subsequent statute which is general does not abrogate a former statute which is particular. Ottawa v. County of La Salle, 12 Ill. 340, and cases cited.

It is wholly immaterial, therefore, which of the ordinances in question had priority in point of time, as both were in full force at the time of the grievance complained of; and it is these ordinances as a whole which we are called upon to construe.

Further, to determine legislative intent, it may be observed that the last clause of the fifth section of the ordinance entitled “Licenses” clearly implies that the term “peddlers,” as used therein, should be understood with reference to Sec. 1 of the ordinance, title “Peddlers,” for it will be seen that in said Sec. 5 the same discrimination against non-resident pcisons is kept in full effect by especially declaring, at the close of said section, that “ This chapter (‘ Licenses ’) shall not be construed to include any entertainment made or had by any citizen of this [appellant] village.”-

But more, even, than this, if possible, is the fact (as the evidence in this case shows), the construction placed upon the by-laws by the village of Braceville, in whole and in part, and the authorities and officers thereof, unmistakably establishes" that the true construction, intent and purpose thereof was and is to exclude non-residents of the said village from the enjoyment or exercise of the business of a peddler without the payment of a license fee therefor. It is in evidence that, during the same time that appellee was committing the alleged violation of its ordinances in that regard, a resident of the said village was, unmolested and unrestrained, in pursuit of the same business in the same village.

We are satisfied, therefore, that appellant’s construction in this regard can not be sustained.

It follows, therefore, that under the before recited provisions of the ordinances of the appellant municipality this prosecution was commenced, and upon their legality appellee’s liability in this proceeding must depend.

The principle involved in the case at bar is of general interest, and is deemed of sufficient importance practically to warrant a brief review of the law governing this contention, as we understand it to be.

Judge Dillon, in his valuable and exhaustive treatise on Municipal Corporations, Vol. 1, Sec. 253, after stating the rule in England, says:

“ In this country, also, the courts have often affirmed the general incidental power of municipal corporations to make ordinances, but have always declared that ordinances passed in virtue of that power, must be reasonably consonant with the general ¡lowers and purposes of the corporation, and not inconsistent with the laws or policy of the State.” Such ordinances must be reasonable and not oppressive, or repugnant to fundamental rights, or courts will declare" them void. Ordinances must be, impartial, fail' and general. It would be unreasonable and unjust to make, under similar circumstances, an act done by one person penal, and if done by another not so. Ordinances which have this effect can not be sustained. Special and unwarranted discrimination, or unjust or oppressive interference in particular cases is not to be allowed. The powers vested in municipal corporations, should, so far as practicable, be exercised by ordinances general in their nature and impartial in their operation.

Ordinances of municipal corporations may regulate, but can not restrain trade, or contravene a common right. Dillon on Mun. Cor., Vol. 1, Secs. 253 to 260 and notes and cases cited.

In the valuable treatise of Horr and Bemis on Municipal Ordinances, 137, it is said, after collating a great number of cases: “ Municipalities are not in a legal sense corporations; they are not vested with power of local legislation in order that they may arrogate to their own inhabitants additional rights and privileges to those enjoyed by other citizens of the State or Nation; neither can rights be denied to its citizens, and still be allowed to be exercised by non-residents who may come within the corporate limits. Discrimination against residents is equally odious to discrimination in their favor.

“ A grant of exceptional immunities to non-residents might, it is true, be of some advantage to the municipality by attracting trade thereto, but the furtherance of the financial interests of its people is not one of the legitimate objects of municipal corporate organization. So non-resident peddlers and sales agents can not be restricted to any further extent than residents.”

Judge Cooley, in his exhaustive treatise on Constitutional Limitations, says, Sec. 390: “ A statute would not be constitutional which should proscribe a class, or party, for opinion’s sake, or which should select particular individuals from a class or locality, and subject then to particular rules, or impose upon them special burdens or obligations from which others are exempt.”

In Braum v. City of Chicago, 110 Ill. 187, it was held, that “ a license fee imposed by a city or village in pursuance of power conferred for that purpose, upon certain trades, business, or occupation carried on or conducted within its corporate limits, is not a tax, within the constitutional sense of that term, but if it were to be so regarded, such license would not violate any provision of law, so long as such license fees were uniform, as to all persons of the same class, within the limits of the city enacting such ordinance. * * * The 9th section of article 9 of the. Constitution of the State provides that the Legislature may authorize the corporate authorities of municipalities to levy taxes for corporate purposes, and this is the source of their power to impose such taxes.”

“ But the power of the Legislature under the Constitution, and the corporate body, is limited to uniformity, as to persons and property within the corporate limits of such bodies; any attempt by either to depart from uniformity as to persons or property is prohibited, and such effort would be void.”

In East St. Louis v. Wehrung, 46 1Ill. 392, which was a prosecution under an ordinance for keeping a dram shop and selling intoxicating liquors without a license, it was said:

“It is urged for the defendant, that the ordinance sought to be enforced, is void, because the Constitution requires taxes imposed by municipal corporations to be uniform, in respect to persons and property, within their jurisdiction, and the ordinance in question imposes a differential license according to the street on which the dram shop is located.
“ The sufficient answer to this is, a license is not a tax, in the constitutional sense of that term.
“ The second section of the ninth article of the Constitution (1848), after providing for uniformity of taxation proceeds : ‘ but the General Assembly shall have the power to tax peddlers,’ etc., etc., ‘in such manner as they shall from time to time direct.’ The same provision is incorporate into the Constitution of 1870.
“ This power the Legislature can delegate to municipal authorities. If the latter were to attempt to use the discretion thus confided to them in a way of favoritism between individuals, by imposing a higher license on one person than upon another exercising the same calling, under the same circumstances and with equal facilities for profit, it might be urged with great force that such action was an abuse of their discretion and could not be sustained. But an ordinance which merely discriminates between different localities in a city, according to the advantages they may present for the business for which such license is sought, leaving all persons at equal liberty, * * * and making no distinction between persons but between places only, is open to no objection.”

It will be observed that the above adjudication was in 1868, and, hence, was in view of the Constitution of 1848; but it is believed that, so far as the question of uniformity is involved, the only material difference between the Constitution of 1848 and that of 1870 is in regard to local improvements made or to be made in cities and villages, which is found in Sec. 9 of Art. 9 of Constitution of 1870, and is as follows: “Sec. 9. * * * The General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessments, or by special tax ation of contiguous property, 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.”

In White v. The People, 94 Ill. 604, in construing the clause in question contained in the Constitution of 1870, it is said: “ It was held in those cases—referring to the City of Chicago v. Larned, 34 Ill. 203, and the City of Ottawa v. Spencer, 40 Ill. 211—that under the provisions of 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 uniformity. That it was manifest that the Constitution (of 1848) established equality and uniformity to be the principle of taxation throughout 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 portion of the expenses, 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.”

But this was changed by the ’Constitution of 1870, in the particular method of making local improvements in cities, towns or villages, by Sec. 9, Art. 9, Constitution 1870, as before stated, in which special class of cases uniformity and equality is not required, as was held in White v. The People, supra, by a divided court. The case of Zanone v. Mound City, 103 Ill. 552, was an original application against the authorities of Mound City to compel them to grant a lióense to keep a dram-shop within the corporate limits of that city, which was incorporated under the general act of 1872, Chap. 24, R. S. 1874, title, “Cities, Villages and Towns.”

Prior to the prosecution in the case cited the city council had passed a general ordinance providing for issue of license to keep dram-shops within that city upon certain conditions set out in the ordinance. The petitioner applied for a license to keep a dram-shop, having complied with the conditions of the ordinance, which application was refused, although it appeared in evidence that license, under the ordinance, had been granted to others for that purpose. It was claimed by the petitioner that such refusal, under such circumstances, was an unlawful and arbitrary discrimination on the part of the authorities of said city against the petitioner. The court said:

“It is claimed by counsel for the city that the city council, as a matter of law, had the right to exercise this arbitrary discrimination in the matter of granting licenses. Bo authority has been cited which sustains this position, and we have found none.
“ To so hold would be a departure from some important fundamental principles which underlie municipal government, as framed under the Constitution and laws. Municipal corporations are mere creations of the legislative will, and can exercise no powers except those by the State conferred upon them. All the powers they possess are held by them in trust for the people of the municipality and for the public generally. Their governmental and administrative powers * * * can only be exercised by appropriate ordinances. Such ordinances must be general in their character, and operate equally upon all persons within the municipality of that class to which the ordinance relates. Such ordinances must not be in violation of law, contrary to public policy or unnecessarily oppressive, and must not arbitrarily discriminate between citizens of the same class.”

In City of Chicago v. Rumpff, which was an action for an alleged violation of an ordinance concerning slaughtering within the corporate limits of the city, in speaking of the question now before us, the court say : “ It is believed that the result of the authorities warrants the assertion that corporate franchises, whether municipal or private, are conferred in trust for the benefit of the entire body of corporators, and must, like all other trusts, be, exercised with prudence and discretion. Hence their by-laws must be reasonable, and such as are vexatious, unequal or oppressive, or are manifestly injurious to the interests of the corporation, are void. And of the same character are all by-laws in restraint of trade, or which necessarily tend to create a monopoly. All by-laws should be general in their operation, and bear equally upon all of the inhabitants of the municipality. When privileges are granted by an ordinance, they should be open to the enjoyment of all, upon the same terms and conditions.” (45 Ill. 97.)

In Ex parte Frank, 52 Cal. 606, which was a prosecution under the ordinance of the city of San Francisco against the relator for a violation of an ordinance of the city known as the “sampleordinance,” which provided, in effect, that any person who, in the city of San Francisco, shall sell, contract to sell, or cause to be sold, or solicit for sale or ■ purchase any goods, wares, merchandise, distilled liquors, drugs or medicines, jewelry, or wares of precious metals, or stones, or any other property, except wool and domestic products, without at the time having the goods at or in the said city or county, or in transitu to the city or county, shall pay a license, etc.,1 etc. After referring to the grant of power to the municipality to pass ordinances regulating trade, etc., the court proceeds :

“ But conceding that the city is authorized to license callings or business for the purpose of revenue, the rule is, that an ordinance passed under general power (as the public good may ■require), must be,first,reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the State; second, it must not be oppressive; third, it must be impartial, fair and general in its application; fourth, it may regulate, but it must not iestrain, trade.”

In Tennessee, in the case of The Mayor v. Althorp, 5 Cald. 554, in which case the defendant was arrested for the violation of an ordinance of the city of Nashville, which precluded non-residents of the State from selling goods, wares and merchandise in said city without procuring a license, etc., the court, after stating the constitutional provisions, the charter of the city, the ordinance under which proceedings were instituted, say: “ Conceding the authority of the city reasonably to tax commercial privileges within its corporate limits, * * * still, the authority can not enable the city to create privileges, for the purpose of taxing them, or to discriminate between persons exercising the same privileges by imposing a tax upon one class at a higher rate or in a different mode or upon other principles than are applied to the exercise of the same privileges by others. The power to tax privileges goes no farther than the delegation in its charter, and any attempt to impose other or heavier burdens upon a portion of those exercising the same privileges than are imposed upon the others would be void, as an exercise of partial legislation, etc., etc.

“The defendant (non-resident) is liable to be taxed as all others are taxed for the exercise of the same privileges, and no more; and any attempt to discriminate between different classes of merchants in the mode of taxation is beyond the power of the city and void. The objection to the second section of the ordinance is more obvious and insurmountable, if possible, than those already spoken of. This section discriminates, in express terms, between manufacturers and dealers residing without the limits of the city of Nashville and members of the same class residing within the city, and assumes to lay down a rule for the former class.

“This certainly can not be done, and would be equally beyond the authority of the State or the municipality to enact.”

So in Missouri, in the case of The City of St. Louis v. Weber, 44 Mo. 547, which was a prosecution under an ordinance of the city regulating the sale of meat, it was held that corporations have none of the elements of sovereignty, and can not go beyond the powers granted them, and that they must exercise such .granted powers in a reasonable manner; that the court must judge in each case, whether the exercise of the power be reasonable.

That if the ordinance was oppressive, unequal and unjust, if it was not a legitimate regulation of the vending of meat, but rather a restraint upon the sale thereof, partial and unfair, creating monopolies, or subjecting either the seller or the purchaser to unnecessary inconvenience or expense, it certainly could not be upheld.”

So in Minnesota, in The City of St. Paul v. Saidler, 2 Minn. 190, which was a prosecution under an ordinance of tli e city of St. Paul regulating the sale of fresh meats in said city, which prohibited such sale without a license outside the public market established in said city, the ordinance was held to be in restraint of trade, unjust, oppressive and void.

In that case the court say: “ The municipality is a body of special and limited jurisdiction; its powers can not be extended by implication or intendment. In the exercise of its legitimate authority, or power of creating ordinances or by-laws for the government of the city, the power or authority must be exercised reasonably and with sound discretion, and strictly within the limits of its charter, and in subordination to the Constitution and general laws o-f the land and the rights of others dependent thereon. 2 Kent’s Com. 290.

“But if this ordinance embraces within its scope attainments of objects not consistent with the manifest intent of the Legislature in making the grant of power, and which restrains and limits the right which citizens before enjoyed, neither upon reason or upon authority can it be sustained, but must be held void.” That court further say: “By this ordinance no general rule has been prescribed which shall apply equally to all; by it the common council assume the right to restrain such persons as they may choose to designate from engaging-in a trade or calling which, by common law, was free to all.”

In New York, in the case of The Village of Buffalo v. Webster, 10 Wend. 100, the court, by Savage, C. J., said: “ At common law, corporations have the power to make bylaws for the general good of the corporation. They must be reasonable and for the common benefit; they must not be in restraint of trade, nor impose a burden without an apparent benefit. A by-law for the regulation of trade, imposing particular restraints as to time and place, is good, but general restraints are bad.”

To the same purport is the case of Clark v. LeCrum, 9 Barn. & C. 5219.

The doctrine of the common law was that any p>erson might carry on any lawful trade or calling in any place in the realm, unless there should be a custom to the contrary. If there existed no such custom, a by-law or ordinance of a municipality contravening or affecting such right was held to be in restraint of trade and against public policy, and therefore void. Clark v. LeCrum, supra; Harrison v. Goodman, 1 Burr. 12; Clark v. Crompton, 7 D. & R. 597; Rex v. Harrison, 3 Burr. 1322.

In these cases, and, indeed, in all the common law cases which we have been able to find, by-laws of the character named seem to have been held bad, except where supported by special custom—not upon the ground that it was an absolute prohibition from engaging in trade, but because of imposing restrictions upon the exercise and enjoyment of a right which, by the common law, was free to every one, without restraint.

One of the important restrictions to which special allusion is made in the cases at common law, was the additional expense involved in the exercise of the trade affected by the by-law. In the case of Rex v. Harrison, supra, this point was specially made in the argument of counsel and emphasized in the opinion of the court.

In the case at bar, not only is there additional expense imposed upon those who would exercise the trade of a peddler, residing outside the appellant municipality, in compelling them to pay a license fee, but it tends directly to create a monopoly of a trade or calling in persons resident of the corporation, and discriminates unjustly against persons nonresidents thereof; and, if possible, to make the injustice more manifest, the price of such license is entirely in the discretion of the president and board of trustees of this municipality, without power of revision by any court, however arbitrarily or unreasonably such discretion may have been exercised.

It is difficult to perceive how such an ordinance, aimed at any branch of business, industry or calling, can, by any possibility, operate for the common benefit, or for the benefit of any one, save the municipality and the favored few residents thereof, in whose behalf the monopoly is sought to be created. Its effect must be to increase the price of the commodity sold, in proportion to the restriction imposed upon those engaged in the trade.

It must operate prejudicially—certainly to the prejudice of those desiring to engage in that branch of business, whatever it may be, as well as to the citizens at large, for the greater the competition the less the price to the consumer, is the law of demand and supply; and if the by-law or ordinance in question can be sustained in this case, the same principle must apply, when invoked, to all trades and business pursuits, necessitous or otherwise, however capriciously or unreasonably exercised, by any or all the municipalities in the State. Ducat v. Chicago, 10 Wall. 410.

In Ward v. Maryland, 12 Wall. 418, it was held that a statute of Maryland which required all residents within the State to take out a license, and pay therefor certain prices fixed by a sliding scale as provided by such statute, and making it a penal offense for any person not a permanent resident of the State to offer for sale any goods, wares or merchandise whatever, other than agricultural products and articles manufactured in Maryland, within certain limits fixed by the statute, by card or sample trade list, or catalogue, without first procuring a license therefor, for which the price of $300 was established, imposed a discriminating tax and burden upon non-resident traders, doing or desirous of doing business within the limits mentioned, and was therefore void.

We have given to this question careful consideration, and we have been unable to find adjudicated case, or elemental principle, contravening the views before set forth; certainly none has been cited or alluded to in the argument before us.

While the right is conceded to the appellant municipality to adopt such general regulations as may be necessary and reasonable to protect the life, health, property or morals of its citizens, in common with that of others, to the fullest extent, we think the exercise of this right should he carefully guarded and limited within the clear grant of power for such purpose delegated, and when a serious question arises as to any particular by-law, ordinance or regulation of such municipality, wherein it is claimed to interfere with the rights of citizens of the State, although non-residents of such municipality, as before enjoyed under the common law or by statute, the burden of proof should be upon the corporation to establish that it had authority to enact such ordinance.

Upon the whole, therefore, we are satisfied that the ordinance in question is not merely a regulation, but it is in restraint of trade; that it is unreasonable, unnecessary and in equitable, unequal and unjust in spirit and effect, in direct contravention of the spirit and policy of the Constitution and laws of this State, in that it tends to create monopolies, makes unjust and unwarrantable discrimination between resident and non-resident citizens of the appellant municipality exercising the same calling and business, which, before the enactment of such by-law, was, by the laws of the State, free to all—unequal and oppressive, and, therefore, against public policy and void.

Finding no error in the judgment of the Circuit Court, its judgment is affirmed. Judgment affirmed.