text:
    Findlay McGregor v. Nathan T. Eakin.
    1. Slander—Words actionable per se.—The words “You are a God damned liar and a thief, and I can prove it," are actionable in themselves, and if proved to have been spoken, entitle the plaintiff, under a plea of not guilty, to a verdict.
    2. Instructions.—An instruction that strict proof of the words charged as slanderous is required, is incorrect. The rule is that they shall be substantially proven.
    Error to the Circuit Court of Jackson county; the Hon. Monroe C. Crawford, Judge, presiding.
    Messrs. Smith & Stevens and Mr. C. H. Layman, for plaintiff in error;
    that proof of a repetition of the slander is admissible in aggravation of damages, cited 2 Greenleaf’s Ev. § 418; Hatch v. Potter, 2 Gilm. 725.
    As to what constitutes a repetition of the slander: Nelson et al. v. Borchenious, 52 Ill. 236.
    Malice is implied in the utterance of slanderous words: Bouv. Law Dic. title “ Malice;” Gilmer v. Eubank, 13 Ill. 271; Hooley v. Brooks et al. 20 Ill. 116.
    Heat and passion cannot be considered in mitigation of damages: Miller v. Johnson, 79 Ill. 58.

      Instructions, .when taken together, should he consistent: C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499.
    An instruction that if the jury believe there is a “ substantial variance ” etc., they should find for the defendant, is erroneous; Aurora Fire Ins. Co. v. Eddy, 55 Ill. 213.
    In torts the allegations in a declaration are divisible, and a recovery may be had where a part only are proven: 1 Chitty’s Pl. *387; Hite v. Blandford, 45 Ill. 9.
    An averment of words spoken concerning the plaintiff would support a verdict for plaintiff, without indicating the person in which they were spoken: Barnes v. Hamon, 71 Ill. 609.
    Hr. A. B. Pugh and Hr. Wm. J. Allen, for defendant in error;
    that an averment of words spoken in the third person is not supported by proof of words spoken in the first, cited Norton v. Gordon, 16 Ill. 38; Sandford v. Gaddis, 15 Ill. 229; Wilborn v. Odell, 29 Ill. 456; 2 Greenleaf’s Ev. § 414.
    The second instruction given for defendant was correct: Flagg v. Roberts, 67 Ill. 485.
    Halice is the gist of the action: Sandford v. Gaddis, 15 Ill. 229; Zuckerman v. Sonnenschein, 62 Ill. 115; Cummerford v. McAvoy, 15 Ill. 313.
    Presumption of malice may be rebutted: Bouv. Law Die. title “Slander;” McKee v. Ingalls, 4 Scam. 30.
    Circumstances tending to disprove malice may be shown: Thomas v. Dunnaway, 30 Ill. 373; Townshend on Slander § 473; Ayres v. Grider, 15 Ill. 37; The People v. Greer, 43 Ill. 213.
    Anger may be considered by the jury in mitigation of damages: Thomas v. Fischer, 71 Ill. 576.
    Testimony of witnesses as to what they understood defendant to mean was properly refused: Linn v. Sigbee, 67 Ill. 75; Bishop v. Gorgeson, 60 Ill. 484.
   Allen, J.

Plaintiff in error brought his suit for slander in the Jackson Circuit Court, against defendant.' The declaration contained three counts; the 2nd and 3d counts laid the words to have been spoken in the third person, and there being no proof in the record to sustain any such words, it is unnecessary to notice them. To the declaration the defendant entered a plea of “ not guilty.”

The first count alleges that defendant spoke of and concerning plaintiff these words: “ You are a God damned liar and a thief, and I can prove it;” “ you are a damned thief,” etc., with several other sets of words amounting in substance to the same charge of being a thief. These words are actionable in themselves, and if proven entitled the plaintiff under a plea of not guilty to a verdict. Were they proven?

W. H. McLaughlin testified that in a dispute between the parties, defendant said to plaintiff: “ You are a God damned liar and a thief, and I can prove it.” Charles Plater testified that defendant said to plaintiff: “You are a God damned liar and a thief, and I can prove it.” John Conners testified that defendant said to plaintiff: “ You are a God damned scoundrel and a thief, and 1 can prove it.” The plaintiff testified that defendant said to him: “ You are a God damned liar, and a thief and a scoundrel, and I can prove it.” The defendant, in his testimony, while denying that the words as laid in the declaration were the words he used, says that he was “ angry, and don’t recollect what he did say.” We have no hesitation in saying that the slanderous words as laid were proven, and that under the plea of “not guilty” the verdict should have been for the plaintiff. The court gave for defendant the following instructions, numbered 1 and 5:

1. “ The court instructs the jury, that the allegations in the declaration, that slanderous words were spoken of and con-' cerning a person, will not be sustained by words spoken to a person. The words must. be substantially proven as laid in the declara! ion, and if you find from the evidence that there is a substantial variance between the words charged and the words proven, you will find for the defendant.”

5. “ The court instructs the jury, that in this class of cases strict proof of the words charged as slanderous, are required, and a substantial variance between the words charged in the declaration and the words uttered, would defeat the action. And if you believe from the evidence, that there' was a substantial variance between the words proven and the words charged in the declaration, you should find for the defendant.”

We believe that the first propositions contained in each of these instructions is incorrect. The proposition in the first would be correct if applied to the second count, where the words were charged to have been spoken in the third person; but when applied to words as laid in the first count it is inapplicable, and was calculated to mislead the jury. If the law was as stated in the first proposition (and some authorities seem to favor that view), we think the rule as now recognized is otherwise. Thomas v. Fischer, 71 Ill. 576.

In the 5th instruction, the jury are told “ that in this class of cases strict proof of the words charged as slanderous are (is) required.” How the rule, as we understand it, does not require strict proof of the words as laid, but only requires that they be substantially proven. Thomas v. Fischer, supra. It is true that the last proposition in both these instructions lays down the rule correctly; but how is a jury to determine by which proposition they are to be governed—the first proposition in each being inconsistent with what follows, both instructions would tend to confuse if not mislead a jury. The verdict was for the defendant; a motion for new trial by plaintiff was overruled by the court, and judgment was rendered for defendant for costs. For these reasons we think the court erred in overruling the motion for a new trial, and in rendering a judgment for defendant, and this cause is reversed and remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Allen, J.

license: Public Domain

text:
    David Ogle et al. v. D. Hilleary Murray.
    Lieu for materials—Decree.—In proceedings to enforce a lien fot materials furnished, if there are other creditors or incumbrancers the court should find the amount due each creditor, and direct the application of the proceeds of the sale to be made to each in proportion to their several amounts.

      Ebbob to the Circuit Court of St. Clair county; the Hon. William H. Snydeb, Judge, presiding.
    Hr. William Winkblman, for plaintiff in error;
    that the decree should have shown the amount due each creditor and directed the proceeds of sale to be applied to each in proportion to their amounts, cited Rev. Stat. Chap. 82, § 17; Lunt v. Stephens, 75 Ill. 507; Tracey v. Rogers, 69 Ill. 662; Croskey v. N. W. M’f’g Co. 48 Ill. 481; Croskey et al. v. Corey et al. 48 Ill. 442.
    The interest of plaintiff in error was fully set out in the petition, and should have been protected the same as if he had appeared and answered the petition: Judson v. Stephens et al. 75 Ill. 255.
    Mr. L. B. ¡Kbafft and Mr. ¡R. A. Halbeet, for defendant in error;
    as to the finding of the court, cited Topping et al. v. Brown, 63 Ill. 348.
   Allen, J.

Defendant in error filed his petition for material lien, charging that Taylor contracted with him for lumber, to be used on buildings situated on lot 5, block 2, in the city of Belleville, of which Taylor was owner. The petition further charges that lumber was furnished between May 6th, and July 1st, 1875. Petition charges that Taylor and wife, on the 28th of April, 1875, executed a deed of trust on said lot ¡No. 5, to Charles W. Thomas as trustee of David Ogle, to secure a note for $1,500, given by Taylor to Ogle. Petition makes David Ogle defendant with others. Upon a hearing the court found due defendant in error the sum of $153.63. The court further found that David Ogle held a trust deed, as stated in petition, to secure $1,500 and interest thereon. The court further found that the increased value of the lot by reason of material furnished was $250, and that the total value of the premises was $2,500. The court also found that the People’s Bank of Belle-ville and Jane T. Hinkley had liens paramount to the trust deed of Ogle, and upon these findings decreed that the said Taylor pay defendant in error in thirty days the $150.63 found due him, and that in default the Master’ in Chancery advertise and sell the lot aforesaid, and that out of the proceeds he pay first, the cost; then to defendant in error $150.63, and that he bring the surplus, if any, into court. The record shows a sale by Master under decree to defendant in error for $193.60—$10.65 of which was applied to payment of costs, and balance to the payment of defendant’s decree. In this decree there is manifest error. Chapter 82, §15, provides: “ That the court shall ascertain the amount due each creditor, and shall direct the application of the proceeds of sales to be made to each in proportion to their several amounts.” In this decree the court fails to find the amount due Ogle on his note secured by trust deed, and failed to direct the application of the moneys arising from the sale by the Master to the payment of Ogle’s debt, or any part of it.

From the finding of the court as to the original amount of the Ogle debt, we are led to believe the clerk or some one else has omitted to insert some portion of the finding of the court, and of that portion of the decree which directs the Master as to the disposition of the funds arising from the sale.

For these errors the decree of the Circuit Court must be reversed and the.cause remanded.

Reversed and remanded.


author: Wall, J.

text:
    Amelia Foster et al. v. A. X. Illinski.
    1. Attachment—Time op making affidavit.—The ground for an attachment should exist at the time the proceeding is commenced, and for this reason the time intervening between the making of the affidavit and the commencement of attachment proceedings, should not be unreasonable. The two acts need not be simultaneous, but done within a reasonable time; and what is a reasonable time is to be judged of by the situation of the parties. In this case, eleven days was held to be an unreasonable time.
    2. Levy—Return should show property was dependant’s.—The return upon the attachment writ should show that the property was levied upon as belonging to the defendant.

      Error to the Circuit Court of St. Clair county; the Iloa. Amos Watts, Judge, presiding.
    Mr. William Winkleman, for plaintiffs in error;
    that the affidavit should be made and filed at the time the writ issued, cited Bev. Stat. 1874, 152, § 2; Wilson v. Arnold, 5 Mich. 98; Fessenden v. Hill, 6 Mich. 242; Campbell v. McCahan, 41 Ill. 46.
    The return should state that the property was levied upon as belonging to the defendant: Cost v. Rose, 17 Ill. 276; Boyland v. Boyland, 18 Ill. 551;. Pardon v. Dwire, 23 Ill. 572; Clay v. Neilson, 5 Band. 596; Tiffany v. Glover, 3 G. Green, 387; Mason v. Anderson, 3 Mon. 293; Anderson v. Scott, 2 Mo. 15; Johnson v. Johnson, 26 Ind. 142; Meaby v. Zigler, 23 Tex. 88; Refina v. McPherson, 2 Kan. 340; Pelton v. Planter, 13 Ohio, 209; Reitz v. The People, 77 Ill. 518.
    Plaintiffs in error being non-residents, and having no notice of the suit, have waived nothing, and may urge these defects in the appellate court: Willetts v. Ridway, 9 Ind. 367; Thormyer v. Sisson, 83 Ill. 188.
    Mr. Wm. G. Launtz and Mr. M. Millard, for defendant in error;
    that the affidavit was made within a reasonable time, cited Drake on Attachment, § 111; Creagh v. Delane, 1 Nott. & McCord 189; Wright v. Reagland, 18 Tex. 289; Graham v. Bradbury, 7 Mo. 281.
    A return P sufficient without stating that the property levied upon was the defendant’s: Johnson v. Moss, 20 Wend. 145; Bickerstaff v. Patterson, 8 Porter, 245; Kirksey v. Bates, 1 Ala. 303; Miller v. McMillen, 4 Ala. 527; Thornton v. Winter, 9 Ala. 613; Saunders v. Columbus & Co. 43 Miss. 583; Rowan v. Lamb, 4 G. Greene, 468.
   Wall, J.

This was an attachment proceeding brought by Illinski against Foster. The affidavit alleged that the plaintiff was a resident of Cahokia, in St. Clair county, and that defendants were not residents of the State. It was sworn to before a notary public of said county, on the 2nd day of August, 1877, and filed in the office of the clerk of the Circuit Court on the 13th day of August, on which latter day the writ was issued. The attachment having come into the hands of the sheriff, he made the following return: “By virtue of the within writ, I have this 13tli August, 1877, levied upon the following described real estate, to wit: Lots 31 and 34 of the commons of Prairie du Pont, St.Clair county, 111., as laid out on the plat of said commons, book A, page 77, St. Clair county, Ills. Defendants not found in my county.” At the January term, 1878, default was entered against the defendants, it appearing that notice of the pendency of the suit had been given by publication. It is assigned as error that the writ was improperly issued upon this affidavit, the latter having been sworn to eleven days before it was filed in the clerk’s office. The affidavit is the foundation and the commencement of the suit. The statute does not provide in terms when it should be made, but it is necessary, of course, that the ground of attachment should exist at the time the proceeding is commenced. The doctrine of presumption, as known in the law of evidence, that a certain fact or condition having been proven to exist, its continued existence will be presumed until the contrary is shown, does not apply. The proceeding is purely statutory, and a substantial compliance with the provision of the statute is essential to the validity of the judgment. In the case of Campbell v. McCahn, 41 Ill. 47, a similar question was considered by the Supreme Court. There the proceedings were in chancery; the defend*ant not being personally served, notice was given by publication. Twenty days intervened between the making of the affidavit and the filing of the bill. It was there said that the law being remedial, it ought to be liberally construed, so as to promote the remedy, and. therefore it was not deemed essential that the affidavit should be sworn to simultaneously with the filing of the bill. It would be sufficient if filed within a reasonable time, and what was a reasonable time must depend upon the circumstances of each case. Where the person making the affidavit resides in the county in which the suit is brought, less time would be reasonable than where he resided in a different county; and in the latter case less than where he resided in a different State. In such case a reasonable time should be allowed within which to transmit the affidavit to the place where it is to be used. It was held that twenty days was obviously an unreasonable time to transmit the affidavit from an adjoining county. Allowing for the irregularity of the post or the delay "of messenger, it was manifest no such time was necessary; and the conclusion was reached that the publication was unwarranted, and failed to give the court jurisdiction.

Testing this case by the reasoning of that case, it would seem clear that the writ was improperly issued. The plaintiff was a resident of the same county and within easy communication by railroad of the county seat. One day would have been ample time within which to make the visit and return, or to send the affidavit by mail, and if the question what is a reasonable time is to be solved by ascertaining how long would in the exercise of ordinary diligence be required to make the affidavit and lodge it in the office of the clerk, there can be no doubt that the time employed in this case was too long. It is also urged that the return of the officer does not show a levy upon the property of the defendant. We have examined the various authorities cited as to the effect of this omission. They are not harmonious, but we think the better rule is that the return should show that the property was levied upon as belonging to the defendant, and such seems to have been the view entertained by the Supreme Court in the case of Reitz et al. v. The People, etc. 77 Ill. 518. The judgment will be reversed and the cause remanded with leave to amend the affidavit and return.

Beversed and remanded.


author: Tanner, P. J.

text:
    School Directors, etc. v. First National Bank of Greenville.
    Payment of teachers—Schedules—Authority of directors to draw orders.—The school law provides that until a schedule is filed with the township treasurer, properly certified by the school directors, it shall not be lawful for such treasurer to pay any teacher, or any two members of the board of directors to draw an order in favor of such teacher. An order drawn by the board of directors before the filing of a schedule, is illegal and void in whosesoever hands it may be, and no recovery can be had thereon against the district.
    Appeal from tlie Circuit Court of Bond county; the Hon. William H. Snyder, Judge, presiding.
    Mr. William H. Bawdy and Mr. Edward Y. Bice, for appellant;
    as to the power of school directors to draw orders on the treasurer, cited Bev. Stat. 1874, 965, § 53; Newell v. School Directors, 68 Ill. 514; Glidden et al. v. Hopkins, 47 Ill. 525.
    If the order is to be regarded as an inland bill, it should have been presented within a reasonable time: 1 Parsons on Contracts, 265; Cayuga Bank v. Hunt, 2 Hill, 635; Wiseman v. Chiapella, 23 How. 368.
    As to effect of failure to give notice of non-payment: 1 Parsons on Contracts, 277; Goldenau v. Davis, 23 Cal. 256.
    Judgment should be reversed because it awarded execution against the school district. Rev. Stat. 1874, 963, § 49; Botkin v. Osborne, 39 Ill. 101
    Messrs. Phelps & Phelps and Mr. D. H. Kingsbury, for appellee;
    that the order was drawn and issued in accordanae with the statute, cited Bev. Stat 1874, 966, §§ 54, 67.
    The treasurer became personally liable to t >e district for paying out money without an order therefor: Bev. Stat. 1874, 970, § 67.
    Delay in presenting the order will not prejudice the holder, there being no intervening loss of funds by bankruptcy or otherwise: Howes v. Austin, 35 Ill. 396; Willetts v. Paine 43 Ill. 432; Murray v. Judah, 6 Cow. 484.
    The consideration of a school order may be inquired into, even after assignment: Newell v. School Directors, 68 Ill. 514.
   Tanner, P. J.

This cause was tried in the Circuit Court of Bond County, on appeal from a justice of the peace, and was brought upon an order drawn by the school director's of District 6, T. 7, E. 3, under the provisions of section 54, chapter 122, E. S. 1874. The order was drawn in the form prescribed in section 67 of same chapter. The cause was heard by the court without a jury, and verdict was found for tue plaintiff. The defendants asked, but were denied a new Dial, and the court rendered judgment for the amount of the order with costs. The appellants bring the cause to this court, and allege as error, the refusal of the court to grant a new trial, and the rendition of judgment for appellee. The facts briefly stated are, that a female teacher taught school in said district for one month; sent her schedule by her husband to t .e directors of the district, for examination and a certificate, as required by law. One director was found, who having examined and finding it correct, signs it and returns it to the husband to carry to the other directors. He also signed an order for the amount due the teacher, as per schedule, and also handed the order to the husband to carry to the other directors. The same papers are, on the same day, presented to another director, who-aho examines, signs, and returns th:m to the husband, and instructs him to give the schedule to the township treasurer, and the order to the teacher. The order was three days afterwards purchased by and assigned to the appellee for full value; and, not being paid, suit is brought against the directors. The order was drawn and the schedule certified on the 23d of November, 1875, and about the 20.h of December following, the husband of the teacher presented the schedule to the treasurer of said town, who examined and found the certificate upon the schedule in proper form. He inquired whether an order had been drawn on him 'or the amount due, and was told by the husband that the directors had drawn no order for the amount, but he wanted the money; the treasurer informed him that there was no money in the treasury belonging to town 6. On the 17th day of April following, the husband of the .teacher returned to the treasurer, and upon stating that no order had ever been given by the directors for the amount due on the schedule, the treasurer paid the money, and took receipt for the same. The treasurer had been authorized by.the teacher to make payment to her husband. . Some three weeks after the payment of the money, the cashier of the appellee presented to the treasurer the order in suit, and demanded payment. Up to this date, the treasurer had received no notice that the order was in existence. The foregoing are substantially all the facts developed by the record, which can be invoked to sustain the judgment of the court. In Glidden v. Hopkins, 47 Ill. 525, the court, in speaking of the powers and duties of school directors, uses this language:

“ The board of school directors, though a corporation, are possessed of certain specifically defined powers, and can exercise no others, except such as result by fair implication from the powers granted. As a corporation, they are but the agents of the tax-payers and inhabitants of the district. Every official act which they perform is for their constituents the inhabitants and tax-payers—and for the doing of the act, when ques-, tioned, they must show their authority.” And this rule is re-stated in the case of Newell v. School Directors, 68 Ill. 514. Does the act of the directors in drawing the order in the case before us, when tested by the foregoing rule, create a liability for its payment? We think not. The latter clause of the 53d section of the school act provides. “ schedules certified as aforesaid, by at least two directors, shall be filed by said directors with the township treasurer; and until such schedule and report as aforesaid shall have been filed as aforesaid, it shall not he lawful for said treasurer to pay said teacher, or any two members thereof to draw an order in favor of said teacher.” The order in this case was made about one month before the schedule was filed with the treasurer, and was therefore unlawfully drawn. If drawn unlawfully it was void; and if void, in the hands of the drawee, no rule of commercial law could impart vitality to it. It is said, however, by counsel for the appellee, that the schedule was filed with the treasurer within a short time after the order was drawn. Be it so; this fact will in no wise help the appellee. If it was unlawful to draw the order before the schedule was filed, the shortness of the time that intervenes could not make the act lawful. The directors when they drew the order were not with the treasurer; and the testimony shows that he never knew that the order had been drawn until notified by the appellee, some six months thereafter. They certified to the correctness of the schedule, and drew the order for the money, and delivered both to the teacher, through her agent. Laches cannot be imputed to the tax-payers and inhabitants of school districts; and the only safe rule that the courts can establish for their security—in the payment and distribution of the moneys set apart to and contributed by them, through the various forms of taxation, for the education of their children,—is to hold all school officers to a strict compliance with all the provisions of law in reference to their conduct as such: and to charge all persons dealing in orders drawn upon the school funds, with notice of the want of power for so doing.

Directors of schools in drawing orders on the treasurer of the township for the payment of moneys, stand on a very different footing than private individuals; they are the agents constituted by law for the proper disbursement of the funds belonging to the inhabitants of the school districts; and therefore, when sued upon orders issued by them unlawfully, they are not deprived of presenting a successful defense by any rule of law in reference to the execution, and putting into circulation of negotiable paper by individuals or private corporations.

In the case óf Newell v. School directors, supra, the court says: “We are inclined to hold that, as the orders are payable to the individuals to whom they are issued, or bearer, they may pass by indorsement so as to vest title in the assignee, and authorize him to institute suit in his own name; but we think there is a wide and marked difference between the rights of the assignee of such orders, and the rights of the assignee of promissory notes or bills of exchange before maturity.” True, in that case the court-held the order void in the hands of the assignee, because it was apparent from its face that it was not drawn in conformity to the requirement of the statute, and was therefore notice to all who should deal with the same; we now, however, have under consideration the character of an order, regular on its face,' and were we inclined to regard the conduct of the directors, in drawing it before the schedule had been filed with the treasurer, as a mere irregularity, the authority cited would not perhaps, be conclusive upon the rights of the appellee. But we must hold, inasmuch as the statute declares “it shall not be lawful to issue such orders until the schedule has been filed with the treasurer,” that it was void when drawn, and .ao one can claim to he an innocent holder. We think the judgment of the Circuit Court erroneous, and as no recovery can be had on the order, in accordance with the views we entertain, we reverse the judgment of the Circuit Court, hut decline to remand the cause.

Reversed.


text:
    Ferdinand Hannebutt v. Robert H. Cunningham.
    Replevin—Property in custody oe United States Marshal.—A plea that the property replevied was held by the United States Marshal by virtue of a writ of execution issuing out of the Circuit Court of the United States, presents a complete defense as to the jurisdiction of the State court over the subject-matter in the replevin suit.
    Error to tlie Circuit Court of Randolph county; the Hon. Amos Watts, Judge, presiding.
    Mr. W. C. Kueffner, for plaintiff in error;
    that the State courts cannot interfere with the process of the Federal courts, cited Munson v. Harroun, 34 Ill. 422.

      Property once levied upon is in the custody of the law, and cannot be taken by another execution: Hogan v. Lucas, 10 Pet. 403: Taylor v. Caryl, 20 How. 583; Freeman v. Howe et al. 24 How. 453.
    Courts will, at any stage of the case, take notice of want of jurisdiction over the subject-matter: Foley v. The People, Breese, 57; Leigh v. Mason, 1 Scam. 249; Ginn v. Rogers, 4 Gilm. 131.
    A chattel mortgage, to be valid, must be acknowledged before a justice of the peace of the precinct where the mortgagor resides: Rev. Stat. 711, §2.
    The sheriff or marshal has power to appoint a special deputy to serve process: Guyman v. Burlingame, 36 Ill. 201; Dungan v. Hall, 64 Ill. 254.
    Messrs; Green & Gilbert, for defendant in error;
    that the plea was a plea to the jurisdiction of the person, and came too late after plea in bar, cited 1 Chitty’s PI. 477; 3 Johns. 105.
    Where property of B. is held by a United States Marshal by an ordinary execution, B. can maintain replevin therefor in the State courts: 1 Kent’s Com. 452; 14 Gray, 566; 6 N. J. Law, 370; 3 Martin (La.) 602; 2 Curtis, 465; 1 Curtis, 311.
    Pleadings are construed most strongly against the pleader: Dana v. Bryant, 1 Gilm. 104; People v. Gray, 72 Ill. 343.
    General ownership of property is not necessarily determined in replevin,but the right of possession is: 18 Ill. 83; 1 Chitty’s Pl. 187.
   Tanner, P. J.

This was an action of replevin instituted in the Randolph Circuit Court, by the defendant in error, and the writ was levied upon certain property in the possession of the plaintiff in error. The plaintiff in error filed four pleas, the first and second being non oepit and non detinet, and upon which issue was joined. To the third and fourth pleas the defendant in error interposed a general demurrer, which the court overruled as to the third plea, and sustained as to the fourth plea. The plaintiff in error excepted to the ruling of the court in sustaining the demurrer to the fourth plea, and elected to stand by the plea. The substantial portion of his plea sets forth, that on the 6th day of June, 1877, August Bode and Gerhard H. Barth, as surviving partners of the firm of A. Bode & Co., recovered in the Circuit Court of the United States for the Southern District of Illinois, a judgment for §2,464.76 and costs, against Matthew and Thomas Donohoo; that an execution was duly issued on this judgment, directed to the United States Marshal of said District; that the defendant, Hannebutt, as the legally appointed special deputy of said marshal, levied said execution on the property in controversy on the 10th day of July, 1877, and, that at the time of the commencement of this suit, and the levy of the writ of replevin therein, the said goods were in the custody of said marshal, holding custody by the defendant, Hannebutt, and and that by virtue of said levy, the said marshal acquired such a special property in said goods, etc., as cannot be questioned in this court. It is only necessary to notice the first error assigned, which is, that the court erred in sustaining the demurrer to the fourth plea.

It is insisted in support of the ruling of the court in this respect, that the plea was to the jurisdiction of the court over the person of the plaintiff, and therefore its advantage as such was lost, by the order in which it was presented. This view is unsound. The action is replevin and the controversy arose upon the right to the possession of the property taken under the writ. The plea, therefore, raises the question of jurisdiction over the subject-matter of the action, rather than to the person. The rule is that at any stage of the proceedings a discovery of a want of jurisdiction over the subject-matter, requires the court to dismiss the suit. The sufficiency of the plea is also questioned by the defendant in error; but we are disposed to regard the plea as clearly showing that the property at the time it was taken under the writ of replevin, was in the possession of the marshal of the United States, under and by virtue of an execution, issued from the Circuit Court of the United States for the Southern District of Illinois, and, therefore, presented a complete defense as to the jurisdiction of the court. This is not an open question; it was settled by the Supreme Court of our State, in the case of Munson v. Harroun, 34 Ill. 422. That case was in all respects, the same as the one now before us, and the right of the State courts to obstruct the officers of the United States in the execution of final process from its courts was raised by plea, in the same manner as in this. Therefore, in accordance with the decision cited, we hold that the court erred in sustaining the demurrer to the fourth plea, and for this reason the judgment is reversed and the cause remanded.

Beversed and remanded.


text:
    George Parker et al. v. Jackson Smith et al.
    1. Bonds in aid of railroads—Conditions of subscription—Nonperformance by railroad—Enjoining tax.—Where the conditions upon which a town was authorized to subscribe for a railroad, were that such road should be built through the township within one-half mile of the court house, and should terminate at or near the city of V., the building of a road across one corner of such township and terminating at a small village nine miles from V. is not a substantial compliance with the conditions of the vote for subscription, and bonds issued in pursuance of such vote are invalid and no tax can be collected to pay interest thereon though they may be in the hands of innocent holders.

      2. Recitals—Estoppel.-—A bond reciting that it is issued by virtue of an Act to incorporate the P. & D. R. R. Co. and in accordance with the vote of the electors of said town, although it may preclude an inquiry as to whether an election was held and a vote authorizing the bonds to issue, yet it could not conclude an inquiry into the performance of a condition that was to be performed after the bonds issued. Such a conclusion would be in direct conflict with the statute of 1869.
    8. Conditions imposed by town.—The statute of 1869, giving to towns the right to prescribe conditions upon which subscriptions should be made or bonds issued, and declaring that such bonds or subscription shall not be valid and binding until the conditions shall have been complied with, applies to the bonds under all circumstances, in whosesoever hands they may be.
    Appeal from the Circuit Court of Crawford county; the Hon, John H. Halley, Judge, presiding.

      Messrs. Parker & Oinvirr and Mr. J. C. Maxwell, for appellants;
    contending for the right of a township to impose conditions to its subscription, cited People v. Dutcher, 56 Ill. 144; People v. Glann et al. 70 Ill. 232; Alley et al. v. Adams County, 76 Ill. 101; S. & I. S. E. R’y Co. v. Cold Spring, 72 Ill. 603; Laws 1869, 319; Ill. Cent. R. R. Co. v. Town of Barnet, 85 Ill. 313.
    Bonds issued without a compliance with the conditions, would not be valid: Town of Eagle v. Kohn et al. 84 Ill. 295; Laws 1869, 319, § 7.
    The supervisor and town clerk are not the authorities to determine when conditions precedent have been performed: Middleport v. Ætna Life Ins. Co. 82 Ill. 562; Rev. Stat. 1877, Chap. 139, §118.
    They could not subscribe the stock and issue bonds except at a regular town meeting or by order of the town board: Bouton et al. Board of Supervisors, 84 Ill. 384.
    If the vote was for a division of the road, bonds could not be issued to the entire line: McWhorter v. People, 65 Ill. 290.
    A change in the termini of the road defeats the subscription: Banet v. A. & S. R. R. Co. 13 Ill. 513; 1 Redfield on Railways, 411; Cooley on Constitutional Limitations, 215.
    The burden of proof is upon the railroad to show that the subscription was authorized by a vote of the people prior to the adoption of the Constitution: Jackson County v. Brush et al. 77 Ill. 59; Madison County v. The People, 58 Ill. 456.
    The township is not liable for the unauthorized acts of its officers: Board of Trustees v. Schroeder, 58 Ill. 353.
    When a condition precedent in an election notice has not been complied with, the election is void: McWhorter v. The People, 65 Ill. 290; People v. Chapman, 66 Ill. 137.
    The supervisor did not act as moderator of the election, and the polls were not open until 11 o’clock a. m.: The People v. Town of Santa Anna, 67 Ill. 57.
    Town officers cannot delegate their powers: East St. Louis v. Wehrung, 46 Ill. 392; Clark v. Hancock Co. 27 Ill. 305: Jackson Co. v. Brush et al. 77 Ill. 59; County of Richland v. The People, 11 Chicago Legal News, 43, [ante. 210.]

      A purchaser of municipal bonds issued without authority is not an innocent purchaser. It is his duty to look to the authority under which the officers issuing them acted: Town of Pana v. Lippincott et al. 2 Bradwell, 466; The Floyd Acceptances, 7 Wall. 666; Marsh v. Fulton County, 10 Wall. 676; Loan Association v. Topeka, 20 Wall. 660; Elmwood v. Marcy, 2 Otto, 289; Town of Concord v. Savings Bank, 2 Otto, 625; Harkman v. Bates County, 2 Otto, 572; Baltimore v. Reynolds, 20 Md. 1; Hodges v. Buffalo, 3 Com. 430; Livingston v. Weider, 64 Ill. 427; Dillon on Mun. Cor. §372; Hartman v. Bates Co. 8 Chicago Legal News, 305; McCoy v. Briant, 11 Chicago Legal News, 84; School Directors v. Fogleman, 76 Ill. 189; Bissell v. v. Kankakee, 64 Ill. 249.
    The road should be equipped as well as built to its terminus, to comply with the conditions: P. & D. R. R. Co. v. Henderson et al. Sup. Ct. Ill. 1878.
    The road not being built according to conditions, the bonds were not entitled to registration: Gross’ Stat. 1869, Chap. 86, § 96; McWhorter v. The People, 65 Ill. 290; Flack v. Hughes, 67 Ill. 384.
    • Statutes increasing the burden of taxation must be strictly construed, 68 Ill. 132.
    Fraud vitiates all contracts: Sims v. Klien, Breese, 302.
    Mr. E. Callahan, Mr. F. Robb and Mr. P. G. Bradberry, for appellees;
    that a bill cannot be filed by one tax-payer for himself and all other tax-payers, cited High on Injunctions, §757; 2 Dillon on Mun. Cor. § 735; DuPage County v. Jenks, 65 Ill. 275.
    If the town had authority to issue the bonds, the tax cannot be enjoined: Dillon on Mun. Bonds, 16; 1 Dillon on Mun. Cor. 415.
    Irregularities in the execution of the power constitute no defense to the bonds: Burr v. City of Carbondale, 76 Ill. 455; Maxcy v. Williamson Co. 72 Ill. 307.
    The supervisor, assessors and collector were judges of the election: Rev. Stat. 1869, 77S, § 1; Rev. Stat. 1874, 457, § 40.
    The supervisor and town clerk were the proper authorities to determine if the conditions precedent had been performed: Dillon on Mun. Bonds, 22; Jackson Co. v. Brush, 77 Ill. 59.
    The law provides for registration of the bonds, and this having been done, the tax must be levied: Dunnovan v. Green, 57 Ill. 63.
    The recital in the bond, by the proper officer, that an election was held, is conclusive: Knox Co. v. Aspinwall, 21 How. 539; Dillon on Mun. Bonds, 24.
    If the vote was for the subscrij>tion, the law made it the duty of the supervisor to issue the bonds: Ill. Mid. R’y Co. v. Town of Barnet, 85 Ill. 321; People v. Logan Co. 63 Ill. 374; Naper Valley R. R. Co. v. Naper Co. 30 Cal. 437.
    The issue of the bonds was a waiver of irregularity in performing the condition: Chiniquy v. The People, 78 Ill. 570.
    So long as the road subserves all interests, a change of route does not release a subscription: Barnet v. A. & S. R. R. Co. 13 Ill. 513; Sprague v. I. R. R. Co. 19 Ill. 174; Ill. R. R. R. Co. v. Zimmeer, 20 Ill. 654; Ill. R. R. R. Co. v. Beers, 27 Ill. 185; Rice v. R. I. & A. R. R. Co. 21 Ill. 93; Redfield on Railways, 211.
    After the road has been built on the faith of the vote, the municipality should be estopped from impeaching the election and enjoining the issue of the bonds: Prettyman v. Tazewell Co. 19 Ill. 406; Butler v. Dunham et al. 27 Ill. 474; Robertson v. City of Rockford, 21 Ill. 457; Johnson v. Stark Co 24 Ill. 85; Perkins v. Lewis, 24 Ill. 208.
    In all cases where the right to add conditions to subscriptions has been sustained, the conditions appeared in the petition and notices: People v. Dutcher, 56 Ill. 148; People v. Glann, 70 Ill. 232.
    Delay in opening the polls will not affect the validity of the election: Platt v. The People, 29 Ill. 72.
    Where a terminus is to be fixed at or near a particular point, a large discretion is given to the company: Redfield on Railways, 413; Dillon on Mun. Cor. § 422; Van Hostrip v. Madison City, 1 Wall. 291
   Allen, J.

A bill was filed by plaintiffs against defendants to the March term of the Circuit Court, A. D. 1877, to enjoin Smith as collector of Honey Creek township, and Updyke, county treasurer, from proceeding to collect certain taxes extended against them on the books, to pay interest on $15,000 in bonds issued by said township to the Paris & Danville Railroad Co. The bill charges that the Railroad Co. failed to keep and observe on its part the conditions upon, which the subscription was made to the company’s capital stock, to pay which, the bonds were issued. And that until such conditions are performed by the company, the township nor the tax-payers are liable for either the principal or interest on the bonds. The bill prays that defendants may be enjoined from collecting or proceeding to collect such tax. Upon this bill a temporary restraining order was issued by the judge of the Circuit Court. Upon filing an answer by defendants, the Circuit Court on bill, answer, affidavits and exhibits submitted, dissolved the injunction and entered a decree for cost against complainants. Prom this decree an appeal was prayed and allowed to this court. Several errors are assigned on the record, but we shall notice only such as seem to us to go to the merits of tlié controversy; and first, have the P. & D. R. R. Co. complied with the conditions upon which the subscription to its capital stock was made, and to pay which the bonds were issued by the township? If the R. R. Co. have complied, then the decree of the court was proper. If they have failed in a substantial compliance with the conditions of the subscription, then we regard the judgment of the court as error. The Paris & Danville Railroad Co. was organized under a charter granted by the General Assembly, approved March 26th, 1869, Private Laws 1867, Vol. 3, p. 144. They were authorized to construct a road from Paris, in Edgar county, to Danville in Vermillion county, and by a provision of the same charter, to extend, construct and equip their road “to a point at or near Vincennes, in the State of Indiana.” By the 9th section of the charter, the company was authorized to receive subscriptions to their capital stock from counties, townships, etc.

Upon a petition of twenty-five legal voters of a township, an election to be called to vote for and against subscription to the

capital stock of the company. Such a petition was presented by the requisite number of voters to the township authorities of the township of Honey Creek; an election was called, and a subscription of $45,000 was voted on the capital stock of the company. In the petition for an election, in the notice of an election, and also on the ballots voted, were the following conditions: Ho portion of said subscription to be payable, nor any interest to accrue on the bonds issued in payment thereof, until the said railroad company, its agents or assigns shall build and equip said railroad through within one-half of a mile of the court house in Eobinson, in said county, and from thence to a point at or near the city of Vincennes, in the State of Indiana. Under this notice the election was held, subscription made, and bonds issued, and a return of this election was made to the county clerk, and the petition and returns filed with the clerk, and became public records in his office. The evidence in this record shows that the railroad company failed to construct the road through said township, but crossed the .line out of the township near the center of the east line running north and south. The evidence further shows, and it is confessed by appellees, that instead of terminating the road at a point at or near the city of Vincennes, they fixed the terminus at Lawrencevilie, nine miles from the city of Vincennes. Was this terminus at or near Vincennes in the sense in which these words are used in the charter, or as they were understood by the parties when the subscription was made. A brief review of the evidence as to the situation of the people of the township will throw some light on this question. Vincennes was the market and principal trading point for the inhabitants of Honey Creek township; they were farmers; they had no towns, villages—important villages—in their vicinity to b: nefit by the road. They desired a ready and cheap method of reaching the Vincennes market, where there was much competition in trade, and where there were, competing railroads. It was a point to them of great advantage, if it could be reached by this railroad. Again, if they could have six miles of railroad built through their township, the tax upon the railroad property would form a large item in their municipal revenues, and to secure these advantages they consented to aid the railroad company to the extent of §15,000. In their municipal bond these were the inducements that procured their assent to the subscriptions. Upon the other hand, the railroad company agreed to build and equip their road through the township and to a point at or near the city of Vincennes (the city being across the line in another State, the road could not enter without authority from the other State); this was the undertaking by the railroad company; this was what they agreed to do in consideration of the aid they were to receive from the township.

Appellees insist that they have kept these conditions; 1st, by running across the corner of the township, they have brought the road within easy access to the inhabitants of the township; that they have fixed the terminus of the road at Lawrenceville, and that that is a point near Vincennes; that their charter speaks from Springfield,” and that as compared with Springfield, Lawrenceville is near the city of Vincennes; while the charter may speak from Springfield, the contract speaks from Honey Creek township, and that is almost as near Vincennes as is Lawrenceville. • Appellees say that upon a careful survey of the route to Lawrenceville, it was found a shorter and cheaper line than the line to Vincennes; the estimates of their engineer are given in proof of this, accompanied by his argument in favor of this terminus, in which he argues that this route down Bushy Flat and across the Embarrass river can be built much cheaper than to Vincennes, and will be more to the interest of the railroad company. .Can it be said this consideration would release the railroad company from their obligation under this contract? If so, they might have terminated their road in Brush Creek Flat, or at the Embarrass river just as well, and from the evidence the people of Honey Creek township would have been but little less accommodated by stopping at the one place as the other, for the evidence shows that no arrangement has ever been made by the P. & D. B. B. Co. by which they could run a freight car over the O. & M. road. That it costs more to transfer their produce from one road to the other and pay the charges to the O. & M. road than to take their freight in wagons to Vincennes, as they did before the road was built. But appellees say they do run trains over the O. & M. road to the Union Depot at Vincennes. And the evidence shows that one passenger train is run each way, once in 24 hours, and that by their running arrangement the people of Honey Creek township are accommodated. They can reach Vincennes at 9 o’clock i\ m. and leave on return trip at 4 a. il, next morning, so that there is speedy communication between the two points by rail; but if one has business to look after that requires daylight, he cannot go and return the 18 or 20 miles by rail in less than two nights and one day.

In any light in which this question can be viewed, we cannot find a compliance with the terms of the subscription, either .in letter or spirit. The evidence shows that Lawrence-ville is a village of but little trade, no competition among buyers and sellers of produce, and no competition in transportation lines, which always affect to a greater or less extent the value of farm products, so that so far as affording to the inhabitants of Honey Creek Township easy and cheap access to a market in that direction, the condition upon the part of the company has wholly failed. Upon the question as to the terminus of this road being within the limit prescribed by the charter and the. vote, we are referred to the decision of the court in Van Hostrip v. City of Madison, 1 Wall. 291. In that case the subscription was made by the city to a railroad company that did not propose to build a road to the city, of Madison, but a branch from Shelbyville to a connection with the Indianapolis and Madison road, which .should terminate at Madison. The junction of the branch with the main line was to be at Columbus, and the court held that, inasmuch as the object of the acts under which the city could take stock in a railroad was to open lines that would bring trade to the city, that this subscription came within the spirit of the law, and the city was held liable. The facts, as well as the reasons, in that case are wholly different from this one, and we do not regard the decision of the court as in point. But it is insisted by the appellee, that the issue of the bonds by the proper township authorities was a waiver of any and all conditions precedent, and that the rights of the innocent holders of the bonds, for value, cannot be affected by any failure to comply with such conditions; and reference is made to Chiniquy v. The People, 78 Ill. 570, and to County of Knox v. Aspinwall, 21 How. 539. In the case reported in 78 Ill. supra, the court say that, “ Even if there was a condition which was not performed by the railroad company, it is not shown in the record ■what it was; * * we must presume the condition was waived.”

In the case that we are considering, the non-performance of the conditions is shown in the record. So that the authority in that case is not applicable to this. In the case, County of Knox v. Aspinwall et al. supra, the court say: “ That the bond upon its face imported a compliance with the law under which it was issued, and that the purchaser was not bound to look farther for a compliance with a condition to the grant of power.” To understand the force and application of the language in this opinion, it is well to consider the exact question that the court had before it. The county of Knox, by her commissioners, had been authorized by an act of the legislature of Indiana to make a subscription to the capital stock of the Ohio & Mississippi R. R. Co., “provided a majority of the qualified voters of said county, at an annual election, should vote for the same.” A voté was had and the subscription made, and bonds issued in payment of the same. Suit was brought by Aspinwall on interest coupons that had been attached to the bonds. A defense to the suit was-sought to be made on the ground that sufficient notice of the election had not been given, as the law required. The court ruled that the question was one that the law left with the commissioners to determine before making'the subscription and issuing the bonds; and that having acted under the authority conferred by .the law, it was to be presumed that the precedent conditions had been performed, and that such a defense as an insufficient notice could not be set up by the defendant in a suit by an innocent holder of coupons; and it was upon this question that the court laid down the rule above quoted. This same rule has been generally adopted by the Federal as well as the State courts, yet some eminent law writers have questioned its propriety; and the Federal courts have in some noted instances departed from it. Our own State courts have sanctioned and have recognized it as the rule. Admitting the rule in its application to all the cases to which we have been referred, and giving to the language used by the court its full scope and meaning, does the case that we are considering come within that rule? What conditions precedent did the court regard as conferring authority to make subscriptions and issue bonds? Were not the giving proper notice of a vote and a vote at a regular annual election, and a majority of legal voters at such election for subscription, the precedent steps to betaken before the commissioners were empowered to make the subscriptions and issue the bonds? We understand such to have been the precedent conditions which were required, and that when the bonds were issued and passed into the hands of innocent purchasers for value, the holder would be protected; and that no irregularity in giving notice or in the vote, or in any other act necessary to give the commissioners power, could be set up in defense of their payment. But how do these decisions affect the other conditions, aside from the petition, the notice of the election, and the vote? They are not conditions to be performed before subscription or before the bonds are issued in payment therefor. The building and equipping of the road through the township, and the building and equipping of the road to a point at or near • the city of Vincennes, Indiana, were conditions that were not to precede, but to follow the subscription and the issue, and were not essential to the exercise of the power to subscribe; and could only affect the liability on the subscription if not performed. It is a matter of history that railroad companies have often induced municipalities to issue their bonds before the conditions upon which they were to become payable, were performed. It was done in the faith that the railroad company had the ability and the disposition to comply with their undertakings, and keep the conditions. Bailroad companies have often failed to keep the conditions. The bonds have passed into the hands of innocent holders for value, and the municipalities have been burthened and sorely oppressed by taxation to pay them, without any compensation or relief. But the act of the General Assembly, in force April 16, session Laws of 1869, page 316, § 17, provides, among other things? that in making subscriptions to railroad companies, “ The municipality may impose conditions,” and that subscriptions and bonds so made, shall not be valid or binding until such conditions are complied with.” It is not unreasonable to suppose. that this law was intended to protect municipalities in that class of cases to which we have just referred.. To this act our Supreme Court have recently given an interpretation in the case of Town of Eagle v. Kohn et al. 84 Ill. 292. In that case suit was brought by Kohn et al. against The Town of Eagle, on interest coupons which had been attached to certain bonds issued by said town to the Plymouth, Kankakee & Pacific E. E. Co. In the vote for subscription were some conditions “ that the road should be built through the town,” “ that a depot should be erected by the railroad company,” and that bonds should be delivered as the work progressed. To this suit pleas were interposed, denying that the railroad company had kept and performed these conditions upon which the subscription had been voted, etc.

The court, after stating that the conditions were not prerequisite to making the subscriptions or issuing the bonds, “but only that the subscription and bonds were subject to the conditions,” say: “The question, then, we conceive depends upon the above provision of the statute (April 16, 1869), giving the right to prescribe conditions upon which such bonds or subscription shoiild be made, and declaring that such bonds or subscriptions shall not be valid and binding until such condition precedent shall have been complied with. What scope is to be given thereto? Whether is it to be confined in its operation to the railroad company to which the bopds shall issue, or extend to innocent holders for value. The words of the statute, by their natural force, apply to bonds under all circumstances, in whatever hands they may be. Courts are wont to allow to such peremptory language of a statute full force and effect, and when a statute expressly declares that a negotiable security, given under certain circumstances, shall be void, to hold them void, even in the hands of a bona fide endorser.”

We have quoted at some length from this opinion, as it seems to be the first time this particular provision of the section of this act has received a construction as to the effect it has on negotiable securities in the hands of innocent holders, and answers fully the argument of appellees, that the issue of the bonds precludes all inquiry as to a compliance with the condition of the subscription, in a proceeding where innocent holders are interested.

It is insisted that the bond upon its face shows a compliance with the conditions, and that the tax-payers are estopped from questioning it. We do not so read the bond. The recital is, that it is issued by virtue of an act to incorporate the Paris & Danville Railroad Company, and in accordance with a vote of the electors of said town,” etc. This recital may be, and perhaps is, strictly true, and under the rule would preclude any inquiry as to whether an election was held and a vote authorizing the bond to issue; but it cannot be said to conclude inquiry into the performance of a condition that was to be performed after the bonds issued; such a conclusion would be in direct conflict with the statute of 1869 and the decision of the Supreme Court under it. And so in regard to the certificate of the supervisor, that entitles the bonds to registry. The very act and the very section of the act that provides for the registry of the bonds, declares that such bonds shall not be valid until the conditions upon which they are issued shall have been complied with. We may conclude this opinion in the words of the Supreme Court in Eagle v. Kohn, supra: “We think the proper construction here is to hold that by virtue of the express declaration of the statute, the bonds in question are not valid and binding until the conditions named shall have been complied with,” and that no tax can be collected to pay interest on such bonds, though they may be in the hands of innocent holders.

The decree of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.

Wall, J. I do not concur in the foregoing opinion.


text:
    The People, use, etc. v. Thomas A. Wilson.
    1. Evidence—Things judicially noticed.—Courts will take judicial notice of the charter or incorporating act of a municipal corporation, without it being specially pleaded, not only when it is declared to be a public act, but when it is public or general in its nature. So, where the original charter of a town provided that it should take effect when accepted by a vote of the citizens, and an amendatory act was subsequently passed, wherein the incorporation of the town was expressly referred to, the latter act being declared-to be a public act, it was held that the charter granted by the original act was virtually declared to have been accepted by the citizens of the town, and of this courts would take judicial notice.
    2. Avebment of incobpobation.—An averment in the declaration that the appellee was collector of the town of H., and as such collector received the collector’s books and did collect the taxes extended on the books of said town against persons residing within the incorporate limits of the town of F., is a sufficient averment, on demurrer, that the town was possessed of corporate powers.
    8. Highway tax—To whom paid.—The tax for road purposes levied upon property within the limits of corporations, under the provisions of the second clause of Section 81, Chap. 121, Rev. Stat. should be paid over to the treasurer of such village. The phrase “tax levied for road purposes,’’includes all taxes collected for the payment of damages arising from opening and laying out roads, the purchase of materials for constructing and repairing roads and bridges, etc., as well as that “ for the making and repairing of roads only.’’
    Appeal from the County Court of Clay comity; the Hon. W. P. Mubpi-iy, Judge, presiding.
    Mr. Bufus Cope, for appellant;
    as to the incorporation of the town, cited Private Laws, 1867, Yol. 3, 421; Private Laws, 1869, Yol. 4, 284.
    That the inhabitants of such town are exempt from working on the roads: Private Laws, Vol. 3, 427.
    The tax collected on property within the village should be paid over to the treasurer of the village: Laws of 1877, Act in regard to Boads and Bridges, §§ 81, 82, 83, 84; Baird v. The People, 83 Ill. 387; Rev. Stat. 916, §§ 17, 18, 43; Rev. Stat. 932, §120.

      Hr. B. B. Smith and Hr. Q-. A. Hoff, for appellee.
   Tanner, P. J.

This was an action of debt, instituted in the name of the People of the State of Illinois to the use of the town of Flora, against the appellee on his official bond, as township collector of revenue. The sufficiency of the declaration was questioned upon general demurrer, in two respects. First: that it did not aver that the town had ever become incorporated. By an act of the General Assembly, in force February 27th, 1867, P. JL. 23, p. 421, a special charter was granted to the inhabitants of the town of Flora, which was to become operative only upon being submitted to a vote of the citizens of the town. The act itself did not confer corporate powers, but enabled the citizens to acquire such at their election, in the manner specified in the act. This was declared to be a public act. We find, however, that the General Assembly in 1869, P. L. 24, p. 284, passed an act amendatory of the act to incorporate the town of Flora, in force February 27th, 1867, in which the acceptance of the charter is clearly recognized. The 2nd section of the amendatory act provides that “ all taxes heretofore levied by the incorporate authorities of said- town remaining unpaid, shall be due and payable, and the town clerk of said town shall certify to the county clerk of Olay county all such taxes as appear by the records of said town to be unpaid; and said county clerk shall thereupon extend the same upon the tax books of the town of Harter, to be collected as other taxes: and all contracts or obligations heretofore entered into by or with the town of Flora, and all transactions under and by virtue of the charter or ordinances of said town, shall be valid and binding as though the boundaries thereof had been correctly described in said act of incorporation; and all ordinances of the town of Flora shall be and remain in force in said town as above described, until repealed according to law.” Section seven declares the amendatory act to be a public act, and to be in force from and after its passage. Thus the charter granted by the original act was virtually declared to have been accepted by the “citizens” of the town of Flora; and of this fact the courts were required to take judicial notice. “ Courts will take judicial notice of the charter or incorporating act of a municipal corporation without being specially pleaded, not only when it is declared to be a public statute, but when it is public or general in its nature or purposes, though there be no express provision to that effect.” Dillon on "Mun. Cor. Sec. 50. “ Courts are bound ex officio to take notice of public acts without being fully set forth, to give them full effect so soon as they are called to their attention.” Sedg. St. and Const, law, 34. We are therefore of the opinion that the pleader was not required to aver the existence of the corporation.

But aside from this view, we think the declaration contains a substantial averment that the town was incorporated. It avers that the appellee was collector of the town of Harter, in Clay county, and as such had given bond and entered upon the discharge of his duties’; as such received the collector’s books, and did collect the taxes extended on the books of said town, against persons residing within the incorporate limits of the town of Flora. These facts are admitted by the demurrer, and .they are equivalent to an averment .that the town was possessed of corporate powers. We next approach a question also raised by the demurrer, of greater difficulty, perhaps, and the main one involved in this controversy. Should the tax collected under and by virtue of the 2nd clause of the 81st section of the act in relation to roads and bridges in counties under township organization, in force July 1st, 1877, be paid to the treasurer of the commissioners of- highways; or should so much thereof as is raised from property existing within the corporate limits of towns and cities having charge of the improvement of bridges, streets and alleys therein, be paid over to the treasurer of such towns and cities? This question was raised and settled adversely to the position of the appellee in this case, in Baird v. The People, etc. 83 Ills. 387. And unless the law has undergone a change in this respect, the construction there given in the act then in force, will be decisive of the case before us. The act now in force is a complete revision of Ohap. 121, B. S. 1874, so far as relates to counties under township organization; and the first .and second clauses of Sec. 81 of the present act, with some changes, compose Secs. 16 and 120 respectively, of the former act. It is not urged that the second clause of Sec. 81 changes Sec. 120 of the old act, so as to hear materially upon the point raised. But it is insisted, in substance, that the changes made in Sec. 16, in forming the first clause of Sec. 81, and applying Sec. 84 of the present act, it then becomes manifest that the General Assembly designed to change the law as expounded in Baird’s case. To ascertain what force there is in this view, we give Sec. 16 and the first clause of sec. 81 in full:

Sec. 16. “ The commissioners of highways shall assess a road tax on all real and personal property liable to taxation of the town, to any amount they may deem necessary, not exceeding forty cents on each one hundred dollars worth, as valued on the assessment roll of the previous year: provided, that the tax on property lying within any incorporated village, town or city in which the streets and alleys are under the care of the corporation, shall be paid over to the treasurer of such village, town or city, to be appropriated to the improvement of roads, streets and bridges, under the direction of the corporate authorities.”

First clause § 81:

First. The commissioners of highways of each town shall annually ascertain, as near as practicable, how much money must be raised by tax on real and personal property for the making and repairing of roads only, to any amount they may deem necessary, not exceeding forty cents on the one hundred dollars’ worth, as valued by the assessment roll of the previous year, and certify the same as hereinafter provided: Provided, That the tax on the property levied for road purposes, lying within an incorporated village, town or city, in which the streets and alleys are under the care of the corporation, shall be paid over to the treasurer of such village, town or city, to be appropriated to the improvement of the roads, streets and bridges, either within or without said village, town or city, and within the township, under the direction of the corporate authorities of such village, town or city: Provided, further, that when any of said tax is expended beyond the limits of said village, town or city,- it shall be with the consent of the road commissioners of the township.”

The changes which we deem necessary to notice are that where § 16 provided for levying a “ road tax,” and that the tax on property lying within incorporated towns and cities should be paid to the treasurers of such towns and cities. The first clause of § 81 provides for raising a tax for the “ making and repairing roads only,” and that the tax on property levied for road purposes lying within an incorporated town or city * * * shall be paid to the treasurer of such town or city.” By an examination of our system for working and keeping in repair the public roads, as developed by past legislation, it will be found that the phraseologies “ road tax ” and a tax for “ making and repairing roads only,” are identical in scope and meaning, and have reference to the ordinary working and repairing of roads. This view is not combatted.

But it is strenuously contended that the expression for “road purposes,” has reference solely to the tax raised from property lying within the corporate limits of towns and cities, for the purpose of “ making and repairing roads only,” and therefore does not embrace any portion of the tax raised, by virtue of the 2nd clause of Sec. 81.

We have,reached, after a careful examination of this view, a different conclusion. If the General Assembly had only de-signed that the tax assessed for the “ making and repairing of roads only,” should be paid to towns and cities in which the property existed from which the tax was raised, we are unable to discover the least reason for the change of the language of section 16 of the act repealed by the law now in force. Words more apt than those there used to express such intention cannot be found. After requiring the commissioners of highways to assess a road tax on all the real and personal property in the town or city, this proviso follows: “Provided that the tax on property lying within an incorporated town or city * * * shall be paid over to the treasurer of such town or city.” As sections 16 and 120 of the former act were wholly independent of each other,, the only tax that could have been paid to the town or city treasurers, under the proviso of section 16, was that which was denominated “ a road tax,” in the first part of the section. In Baird’s case it was held that the tax raised under section 120 of the act, from property lying within incorporated towns and cities, should be paid to the treasurers of such-towns and cities, as well as that raised under section 16 of the act then in force. As already stated, these two sections in the order observed in the old act, are united in the present act and form one section, and provide for collecting taxes for the same purposes and from the same sources. Then the phraseology of the proviso in the first part of the section was altered so as to become more comprehensive than it was in the repealed act, in order to embrace the tax raised under both clauses of the section. The phrase “ the tax levied for road purposes,” includes all taxes collected for the payment of damages arising from opening and laying out new roads, the purchase of materials for constructing and repairing roads and bridges, and of machinery for working upon the same, as well as that assessed and collected for the “ making and repairing of roads only.”

“ A tax for the making and repairing of roads only,” is a part of the tax collected for “ road purposes,” and although the first expression, in an abstract sense, may be considered quite as comprehensive as the second, the legislature has seen proper to give it a more circumscribed meaning. The expression “for road purposes,” however, we hold comprehends every step towards the making and improving roads and bridges, as provided for in section 81, and it seems clear that the most comprehensive terms are used in the present act for the purpose of avoiding the necessity of judicial construction. Again, it seems, if the intention of the law-maker was that the taxes provided in the first and second clauses of section 81, should be paid respectively to the treasurers of towns and cities, and to the treasurers of the commissioners of highways, the law would have provided for a separate extension of such taxes on the tax hooks. But the whole of the tax to be collected under this section is certified in the aggregate by the supervisors to the county clerks, and they are required to extend such as one tax in a separate column against each tax-payer. There the collector pays over all the taxes collected for road purposes from property lying within incorporate towns and cities, to the treasurers thereof, and to the treasurers of the commissioners of highways all other taxes collected for road purposes. But by the construction placed upon the act by the appellee, the collector could not pay the money over, either to the treasurers of the commissioners of highways, Or to those of the towns and cities, as the law would afford him no means for making a division, and determining the relative proportion belonging to each.

The 82nd section of the present act provides that the taxes shall be extended and collected the same as state and county taxes, and the 84th section provides that the tax so collected shall be paid to the treasurer of the commissioners of highways (except as provided in the first clause of section 817, this act). What is the proviso of the first clause? Why, that all taxes collected from property lying within incorporated towns and cities for “ road purposes,” shall be paid over to the treasurers thereof.

In Baird v. The People, the court, in deciding the question, remark: “There is, it is true, in this an apparent incongruity, and it may be injustice, but we do not feel called upon to discuss either its wisdom or .justice, but leave these for the consideration of the legislature.”

It is doubtless difficult to distribute equally the burdens of creating and keeping up public highways between the citizens of towns and cities and those who are not, and we are unable to perceive that the construction for which the appellee contends, would produce less hardship and injustice than- the law as it was settled in this case. Perhaps to meet this view of the case the legislature so amended the former law by the present act, as to provide that the money collected and paid over to villages, cities and towns, might be expended on highways beyond, as well as within their corporate limits. The charter of the town of Flora imposes on it the duty of keeping up its streets and alleys, and exempts its citizens from performing labor on roads outside of its corporate limits, or paying any money therefor. The 166 Sec. Chap. 121, B. S. 1874, declares that in no town or city incorporated under general or special law, shall the citizens thereof be required to contribute labor or money, on property within the corporation, for the improvement of roads in the county, different from that required in the charter; but they are required to work and pay a tax to improve the streets and roads, and such improvements as are specified in the charter, or within the limits of the corporation, so long as the charter or incorporation shall remain in force. This section has been in force for more than thirty years, and it clearly shows that the settled policy of our State is not to impose upon the citizens of incorporated towns and cities the duty of maintaining the roads and highways without, as well as within such towns and cities. It is true that this rule may in some instances impose a seemingly unjust hardship upon the inhabitants of the town who do not reside within the corporate limits of towns and cities existing therein; but a contrary rule would in more instances create greater hardship and injustice to the citizens of towns and cities which are charged with the duty of keeping the streets and alleys thereof in repair. We think the Circuit Court erred in holding the appellants’ declaration insufficient in law, and in rendering judgment against them for costs. The judgment will he reversed and the cause remanded.

Reversed and remanded.


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    Ernest A. Lueken et al. v. The People, use, etc.
    Sale oe intoxicating liquor—Remote cause.—The har-tender of appellant sold liquor to B, and an altercation arising, the bar-tender threw a glass at B. which missed him and injured appellee. Held, that the injury complained of is not in a legal sense the natural and proximate consequence of the alleged act of appellant in selling the liquor. That it is a matter of speculation whether the same injury would not have been sustained if defendant had not sold the liquor.
    Appeal from the County Court of ¡Randolph county; the Hon. W. P. Murphy, Judge, presiding.

      Mr. Abeam G. Gordon and Mr. George L. Riess, for appellant;
    that the damages claimed are too remote, cited Shugart v. Egan, 83 Ill. 56; Fent v. T. P. & W. R. R. Co. 59. Ill. 349; 2 Greenleaf’s Ev. § 256; Schmidt v. Mitchell, 84 Ill. 201; Cuff v. N. & N. Y. R. R. Co. 25 N. Y. 17; Fairbanks v. Kerr, 70 Pa. St. 86.
    The act providing for a recovery in cases of injury arising from the sale of intoxicating liquors, should be strictly construed: Fentz v. Meadows, 72 Ill. 540; Edwards v. Hill, 11 Ill. 23.
    Messrs. Johnson & Hornee, for appellee;
    as to the right to recover, cited Rev. Stat. 1874, 439, § 9; Horn v. Smith, 77 Ill. 381; Roth v. Eppy, 80 Ill. 283; Schmidt v. Mitchell, 84 Ill. 195; Dunvoy v. Blinn, 11 Ohio St. 331; Milford v. Clewell, 21 Ohio St. 191.
    The party is liable for the selling by,his agent: Mullinix v. The People, 76 Ill. 211; Keedy v. Howe, 72 Ill. 133; Riley v. State, 43 Miss. 397; Stevens v. The People, 67 Ill. 587.
   Wall, J.

This was an action of debt, commenced at the January term, 1878, of the Randolph County Court, by appellee against appellants, on the saloon bond of E. A. Luekeh. The declaration alleges that E. A. Lueken, on the 20th day of April, 1876, obtained a license from the president and board of trustees of the village of Kaskaskia, to keep a saloon from that date until April 20th, 1877, and that defendant entered into bond, etc. That during the time for which said license was issued the said Leuken sold and gave to one Frank Bevenue intoxicating liquor, whereby said Bevenue became intoxicated, and by reason of such intoxication entered into an altercation with one John Buatte, the bar-tender of said Leuken, and during such altercation said John Buatte threw a glass tumbler at Frank Bevenue, and missed Bevenue and struck Louis Lortz —the party for whose use this suit was commenced—on the head, whereby Lortz was greatly injured, etc.

Conceding that the evidence in this case supports the averments of the declaration, we are of the opinion that there is no cause of action. The injury complained of is not in a legal sense, the natural and proximate consequence of the alleged act of the defendant. A new force or power has intervened, of itself sufficient to stand for the cause of the mischief. It is essentially a matter of speculation whether the same injury would not have been sustained if the alleged act of the defendant in selling the liquor to Bevenue had not been committed. The defendant could hardly be presumed to have foreseen that his act of selling the liquor would have produced or been followed by the altercation in which a stroke aimed at Bevenue would fall upon the .plaintiff, and therefore he cannot be held responsible. Fent v. T. P. & W. R. R. Co. 59 Ill. 349; Shugart v. Egan, 83 Ill. 56.

The judgment must be reversed, and as there is no cause of action shown, the case will not be remanded.

Beversed.


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    Edward M. West et al. v. The People of the State of Illinois.
    Practice—Appeal from county court—When to Appellate Court. —A suit under the statute to recover the amount of tax due upon forfeited real estate, is a common law action within the meaning of the statute requiring appeals from the county court in common law actions to be taken to the Appellate Court.
    Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Brome & Hadley, for appellants;
    contending that the appeal should have been to the Appellate Court, cited Bev. Stat. 1877, Chap. 37, §§ 122,123.
    The title to the lands was not in appellants at the time of the assessment. The title derived by sale under execution was void, because the premises were exempt as a homestead: Green v. Marks, 25 Ill. 221; Stevenson v. Marony, 29 Ill. 532; Fishback v. Lane, 36 Ill. 437; Wiggins v. Chance, 54 Ill. 175.
    Appellants were liable personally only for taxes levied after they became owners of the land: Rev. Stat. Chap. 120, § 59; Atlantic R. R. Co. v. Cleins, 2 Dillon, 175; County Com’rs v. Claggett, 31 Mo. 210; Cooley on Taxation, 303.
    Mo report of the collector and notice of application for judgment were made, and the county court had no jurisdiction: Spellman v. Curtenius, 12 Ill. 409; Picket v. Hartsock, 15 Ill. 282; Morgan v. Camp, 16 Ill. 175; Chiniquy v. The People, 78 Ill. 570.
    Mr. Ctbus L. Cook and Messrs. Wise & Davis, for appellee.
   Wall, J.

This was an action of debt, commenced by the appellees against the appellants, in the County Court of Madison county, to the August term, 1878, to recover the amount due upon certain real estate alleged to have been forfeited to the State. In the county court judgment was rendered against the appellants for $88.88, from which an appeal was taken by the appellees to the Circuit Court. In the Circuit Court the appellants moved to dismiss the appeal, which motion was by the court overruled, and the case proceeded to trial, resulting in a judgment in favor of the appellees for $632.46. The case is brought here by appeal, and various errors are assigned, only one of which we propose now to consider. Was the appeal properly taken to the Circuit Court? Chapter 37, section 122, Rev. Stat. provides that “ appeals may be taken from the final orders, judgments and decrees of the county courts to the circuit courts of their respective counties in all matters, except as provided in the following section, upon appellant giving bond, etc., except as otherwise provided bylaw. Upon such appeal the case shall be tried de novo” The following section, 123, provides that “ appeals and writs of error may be be taken and prosecuted from the final orders, judgments and decrees of the County Court to the Supreme Court, or Appellate Court, should such a court be established by law, in proceedings for the sale of lands for taxes and special assessments; and in all common law and attachment cases, and cases of forcible detainer and forcible entry and detainer.”

It is urged that the term common law cases, as here used, refers not to the form of action, but to the nature and origin of the right. If the right or cause of action is statutory, and was unknown at common law, then it is said the term does not apply. We think this is not the true construction. If there is any doubt or ambiguity as to the meaning of the words, it is proper to adopt that construction which gives to the language the significance ordinarily attached to it. When • a statute is remedial, such a construction should obtain as will promote the remedy and hasten the process of litigation. Public policy requires a speedy adjustment of legal controversies, and abhors ambiguity and uncertainty in the laws. It would often be difficult to say whether a given cause of action was recognized fully or at all, at common law. Legislation has so greatly changed the rights and liabilities of persons that in many cases it would be a matter of grave doubt and vexatious controversy whether the alleged right or liability existed independently of the statute. For example, many of the questions growing out of the making and endorsing of commercial paper, the relations of guarantors and sureties, husband and wife, and various other instances where common law and statutory rights and liabilities are more or less blended and combined.

In order to determine where an appeal must go, it would be necessary to examine the whole record with much care and research, and thus needless and profitless discussion and delay would ensue. On the other hand, if we are to look only to the form of action, no such doubt or ambiguity need arise. Common law cases being such cases as appear in the common law forms of action, are easy of recognition. Those forms are familiar to the practitioner, and a glance will settle the character of the action. The fact that a common law remedy is applied to the recovery of a statutory penalty, or the enforcement of a statutory liability, can make no difference. This view derives force from the context—“ and in all common law and attachment cases.” A common law suit, for example—debt—may be brought to recover a common law right; it may also be brought to recover under a statute. On the other hand, an “ attachment case,” which is a statutory proceeding, may be brought to recover a common law right as well as a right arising under a statute. It seems clear that the legislature in using the term common law cases, referred to the form of action, and- used it in its broadest and most comprehensive sense, and as we have said before, that is a fair construction which will avoid as far as possible all doubt or ambiguity, and at the same time promote the remedy and shorten the course of litigation.

Our conclusion is, that the appeal was not properly taken to the Circuit Court.

The judgment is reversed and the cause remanded.

Reversed.


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    Irwin Z. Smith v. The People of the State of Illinois.
    1. Recovery oe taxes due on eobeeited fbopebty.—Thef statute providing that suit may be brought against the owner for the amount of tax' due upon forfeited property, is notin conflict with the provisions of the Constitution.
    2. Forfeiture necessary.—In order to support a personal action for such tax, there must first be a forfeiture, and all the steps necessary to produce a forfeiture must have been taken. There must have been a process of sale, and a failure to sell for want of bidders, and the absence of one of these essential requisites renders the forfeiture invalid, and all proceedings based upon the forfeiture are void.
    3. Evidence—Deeds.—It was competent to give in evidence deeds tending to show that the defendant was the owner of the land.
    Appeal from the Circuit Court of Madison county; the . Hon. William H. Snyder, Judge, presiding.
    Messrs. Gillespie & Happy, for appellant;
    that the act is unconstitutional, cited Andrews v. The People, 75 Ill. 605; Constitution of 1870, Chap. 9, §§ 4, 5.

      Only the officer authorized to receive the State and county tax has authority to sell land for taxes: Hills v. Chicago, 60 Ill. 86.
    To create a personal liability there must he an ownership of the property on the first day of May of the year for which the tax is sought to he collected: Eev. Stat. 1877, 868, § 59.
    There must be proper notice before there can he a legal judgment of forfeiture: People v. Otis, 74 Ill. 384; Chiniquy v. The People, 78 Ill. 570; Fortman v. Ruggles, 58 Ill. 207.
    Mr. C. L. Cook and Messrs. Wise & Davis, for appellee;
    as to what are taxes, cited Cooley on Taxation, 1; 58 Me. 591; Hilbrel v. Catherman, 64 Pa. St. 154; Blackwell on Tax Titles, 1; Perry v. Washburn, 20 Cal. 318; Hanson v. Vernon, 27 Iowa, 28.
    As to the object of taxes: Cooley on Taxation, 2; People v. Brooklyn, 4 N. Y. 419; McKune v. Del. Canal Co. 49 Pa. St. 524; Thatcher v. The People, 79 Ill. 597.
    Hpon the right to impose taxes: 18 Pa. St. 26; Bank of Pennsylvania v. Commonwealth, 19 Pa. 144; Catlin v. Hull, 21 Vt. 152; Blue Jacket v. Johnson Co. 3 Kan. 299; Hager v. Supervisors of Yolo, 47 Cal. 222; Corte v. Soc’y for Savings, 32 Conn. 173; Porter v. R. R. I. & St. L. R. R. Co. 76 Ill. 561; Enrigh v. The People, 79 Ill. 214.
    The right to tax rests upon a necessity, and the burden is upon him who alleges it, to show wherein the Act violates the Constitution: Porter v. R. R. I. & St. L. R. R. Co. 76 Ill. 561; Sawyer v. City of Alton, 3 Scam. 127; People v. Worthington, 21 Ill. 177; People v. Salomon, 51 Ill. 38; McVeagh v. Chicago, 49 Ill. 318; McCulloch v. Maryland, 4 Wheat. 428: Providence Bank v. Billings, 4 Pet. 561; People v. Mayor, etc. 4 Com. 425.
    Taxes may be collected by suit: Cooley on Taxation, 299; Ryan v. Gallatin Co. 14 Ill. 78; Dunlop v. Gallatin Co. 15 Ill. 7; Geneva v. Cole, 61 Ill. 397.
    In construing the Constitution the whole of the Eevenue Act must be regarded, and' not isolated sections: Cooley on Con. Lim. 57; Belleville R. R. Co. v. Gregory, 15 Ill. 20.

      Here technical objections will not defeat the judgment of forfeiture: Thatcher v. The People, 79 Ill. 597; Beers v. The People, 83 Ill. 488; Chiniguy v. The People, 78 Ill. 570; Purrington v. The People, 79 Ill. 11; People v. Brislin, 80 Ill. 423; Lehmer v. The People, 80 Ill. 601.
   Wall, J.

This was an action of debt, brought by appellee against appellant, under the 230th section of the revised statutes, entitled revenue, which is as follows:

“ The county board may, at any time, institute suit in an action of debt, in the name of the people of the State of Illinois, in any court of competent jurisdiction, for the amount due on forfeited property.” It is urged that the declaration is not sufficient. We have examined it and are of opinion that it is substantially good. It is objected that the statute upon which the suit is brought is unconstitutional. The power of taxation i? an incident of sovereignty and co-extensive with it. It is essential to the support of government, and to the existence of civilized society. Aside from the general limitation that it can be exercised only for public purposes, the power is uncontrolled save by the Constitution. The process of collection may be adapted to the condition of things, and may be such as the legislature deems necessary and proper, by proceedings vii rem or m personam; the ordinary remedies being by suit, by distress and sale of personalty, and by sale of lands.

In considering the question of a constitutional limitation upon legislative power in this resjiect, the rules ordinarily applicable are enforced. It is argued that a limitation upon this power sufficient to invalidate § 230, above quoted, must be inferred from the provisions of §§4 and 5, Art. 9, of the Constitution of 1870, entitled “ Revenue.” Those sections are as follows:

Sec. 4. The General Assembly shall provide, in all cases where it may be necessary to sell real estate for the non-payment of taxes or special assessments for State, county, municipal or other purposes, that a return of such unpaid taxes or assessments shall be made to some general officer of the county having the authority to receive State and county taxes, and there shall be no sale of said property for any of said taxes or assessments, bnt by said officer upon the order or judgment of some court of record.

“Sec. 5. The right of redemption from all sales of real estate for the non-payment of taxes or special assessments of any character whatever, shall exist in favor of owners and persons interested in such real estate, for a period of not less than two years from such sales thereof. And the General Assembly shall provide by law for reasonable notice to be given to the owner or parties interested, by publication or otherwise, of the fact of the sale of the property for such taxes or assessments, and when the time of redemption shall expire: Provided, that occupants shall, in all cases, be served with personal notice before the time of redemption expires.”

Considering these provisions in the light of the rules first announced, is the point well taken ? It must be remembered that the legislature may adopt such modes of collection as may seem most efficient, including of course ordinary actions in personam, to recover the amount due. These sections of the Constitution only refer to the sale and redemption of real estate. They do not, in terms or by implication, limit the legislative power as to any other mode of collection. They evidently refer only to such sales when made under and by virtue of direct proceedings against real property for the collection of taxes in which proceedings are i/n rem. They do not refer to the mode pursued in this case, and though it may happen that a j ndgment in personam having been obtained, land may be sold, and the time of redemption may expire within two years, yet we think these provisions are in no wise contravened.

We are aware of no rule of construction that would require us to hold, because the constitution contains one or more limitations as to the exercise of one mode of collection, that therefore it must be implied no other mode of collection can be resorted to. The Constitution of 1848 contained a provision, Sec. 4, Art. 9, upon the subject of sales of land for taxes, but it was never supposed that the State had no other remedy. On the contrary, the remedy by suit was repeatedly recognized. Ryan v. Gallatin Co. 14 Ill. 78; Dunlap v. Gallatin Co. 15 Ill. 7; The Town of Geneva v. Cole, 61 Ill. 398. The case of Andrews v. The People, 75 Ill. 605, cited by counsel for appellant, is to the same effect. In that case the act of 1872 was involved. This act, passed under the present Constitution, authorized a personal action in debt or assumpsit for the recovery of taxes, and the objection taken by the court was not that there was no warrant for such a law, but that while the law provided that the remedy should be cumulative, it did not provide that while this remedy was being pursued another remedy might be enforced for the same purpose. If the statute had so provided there would have been no constitutional objection. In the case at bar such an objection cannot obtain, for the obvious reason that the proceeding is strictly in pursuance of the statute. The statute authorizes a suit to recover the amount due on forfeited property, and the remedy in personam begins where the proceedings im, rent, having failed to collect the tax, determine. The forfeiture must first occur, then the suit to recover the sum due thereon. We are clearly of opinion that there is no constitutional objection to the statute.

It is objected that the court erred in admitting in evidence certain deeds, offered for the purpose of showing that defendant was the owner of the land. This proof tended to establish the case made by the declaration, and was competent. The next question is, does the record show such a forfeiture as will authorize a recovery? The statute provides a remedy by suit against the person for the amount'due upon forfeited property. It is manifest, in our opinion, that there must have been a valid forfeiture. To constitute a valid forfeiture, all of the steps provided by the statute must have been substantially complied with. There must have been a notice substantially such as the law requires. This notice is jurisdictional. There must have been a judgment, a process of sale, an offer of sale by the proper officer, and a failure to sell for want of bidders. Scott v. The People, etc. 2 Bradwell, 642. A question is made upon the notice. From the record as it is before us, we are at a loss to say what the notice really contained, and passing that question, we find a judgment valid, so far as we can see, if the proper notice was given. The record however fails to show a process of sale, as required by Sec. 194. As we read the statute, this process is essential to a valid sale and to a valid forfeiture for want of bidders, and the absence of this essential requisite renders invalid the subsequent proceedings. It is the warrant upon which the officer acts in making the sale, and is indispensable. The point is made that the defendant tendered the amount due on the land he really owned. We think this objection is not valid. The tender, if any was made, was not kept good. For the want of the process of sale, as required by section 194, we think the record does not sustain the j udgment. J udgment reversed and cause remanded.

Reversed.