source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    Robert J. Roy v. Alfred Goings.

      Filed at Mt. Vernon January 22, 1885.

    1. Malicious prosecution—want of probable cause—whether malice to be inferred. In an action for a malicious prosecution, when all the facts and circumstances proven show a want of probable cause for the arrest and imprisonment of the plaintiff on a charge of crime, the jury may take this fact into consideration, and from it infer malice, not as a matter of law, but as a conclusion of fact.
    2. 0 Same—advice of counsel—as defence. A party, in order to shield himself from a prosecution for an alleged malicious arrest, etc., by the advice of counsel, must make a full statement of all the material facts to the attorney advising him. The person seeking such advice will not be protected if he makes a garbled statement of the facts and circumstances bearing upon the question of the" guilt or innocence of the person proposed to be arrested.
    3. In this case, a mortgagor of crops grown by him, before the maturity of the debt gathered a load of beans from the land on which they were grown, and took them to Ms residence, about two miles distant, to thresh them. The mortgagee, on learning this, posted notices for a foreclosure of the mortgage, and forbade the mortgagor from removing any more of the crops, and threatened to have him arrested if he did. The latter, claiming he had the right to gather the beans, and denying the mortgagee’s right to foreclose, gathered another load of beans, in open day, under claim of right, when the mortgagee had him arrested and imprisoned on a charge of larceny. In an action for malicious prosecution, by the mortgagor, against the mortgagee, the latter sought to justify under the advice of the State’s attorney: Held, that he should have disclosed to the attorney, whose advice he sought, that the plaintiff took the property openly, in daylight, as any one would his own property, and that plaintiff had insisted that the mortgagee had no right to foreclose, and that he had claimed the right to gather and preserve the beans, in order to protect himself, as he had been advised he might do.
    4. In a suit of this character, the proof showed the prosecution was instituted on the advice of the State’s attorney, and also that such attorney was habitually intemperate. The jury were instructed that to entitle defendant to protect himself on the advice of an attorney, he must have communicated the facts within his knowledge, etc., to a respectable attorney in good standing, and have acted in good faith on his advice: Held, there was no error in the instruction in requiring the communication to have been made to an attorney in good standing, this court not being prepared to hold an attorney is in good standing merely because he holds a commission as State’s attorney.

      5. Same—of the good faith required—independently of legal advice. The law requires that one in instituting a criminal prosecution shall act in good faith, or under an honest belief of the guilt of the party arrested,—and this notwithstanding he has taken legal advice.
    6. Instruction-—construed—whether directing an inference of law, rather than of fact. On the trial of an action for a malicious prosecution, the court instructed the jury that if they believed, from the facts and circumstances as given in evidence, the defendant had not probable cause for the arrest and imprisonment of the plaintiff, then they might infer malice from such want of probable cause: Held, that the instruction was not obnoxious to the objection that it asserts a want of probable cause as in law authorizing an inference of malice. Such an instruction is not mandatory, but is permissive, allowing the jury to draw an inference of fact only, if there is any such inference fairly to be drawn.
    7. Same—construed—as to credit to be accorded to the testimony of a witness sought to be impeached. The trial court instructed the jury in a case as follows: “While the law permits the impeachment of a witness by proving his general reputation for truth and veracity in the neighborhood where he resides to be bad, yet if you believe that the plaintiff, while on the stand, gave a truthful, candid and honest statement of the facts and circumstances surrounding the transaction in question, then the jury should not disregard his testimony, but you should give it such faith and credit as in your opinion it is entitled to:” Held, that the instruction did not assert that the jury might believe an impeached witness, but stated correctly that an impeachment is allowed, and further, that if the evidence failed to impeach to the satisfaction of the jury, the witness was not impeached, nor was he if the jury still believed his testimony.
    8. Same—by the court on its own motion. A trial court has ample power to instruct a jury sua sponte, and, moreover, it is its duty to do so when the promotion of justice so demands.
    9. Impeachment of witness—weight to be given to testimony. A jury should never give the slightest weight to testimony, however positive, which they believe to be untrue. If a witness has been successfully impeached, his testimony, unless corroborated, is unworthy of belief, and should have no weight; but it is for the jury to say, from the whole evidence, whether the witness has been impeached.
    10. Verdict—as to the mode of reaching the amount—jury required to reconsider, as to the mode of their finding. A jury, on being polled upon the return of their verdict, were asked how they arrived at the amount of damages, and answered, it was by each juror fixing a sum and dividing the aggregate of such sums by twelve. The court thereupon gave the jury this instruction, on its own motion: “If your verdict be in favor of the plaintiff, you can not, in determining the amount of damages for the plaintiff, add together the respective amounts named by each juror, and divide the sum by twelve, the number of the jurors, but must determine and agree upon the amount of damages collectively, and as one body, ”—and sent the jury out again: Held, that there was no error in the action of the court, except in allowing the jurors to be questioned, so as to elicit answers to impeach their verdict, .
    11. Upon the return of the jury a second time, they brought in a verdict for the same amount of damages as before, and on being polled, each juror said the verdict was his verdict: Held, that the presumption was, the jury obeyed the instruction, and that the answers of the jurors on being polled, repelled any presumption that the amount of the damages was arrived at by addition and division.
    12. Same—impeaching a verdict by testimony of the jurors themselves. A juror can not testify to any fact to impeach a verdict in the finding of which he has participated. On polling a jury, it is error to permit counsel to ask the jurors to state in what manner they arrived at the amount of the damages reported by them.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Pulaski county; the Hon. Oliver A. Barker, Judge, presiding.
    Mr. Samuel P. Wheeler, for the appellant:
    The fourth of plaintiff’s instructions was erroneous, as allowing the jury to infer, as a matter of fact, malice, from a want of probable cause. Harpham v. Whitney, 77 Ill. 32.
    Plaintiff must show malice as well as want of probable cause. 2 Greenleaf on Evidence, sec. 453; 1 Hilliard on Torts, 514.
    Want of probable cause is a fact to be considered in determining the question of malice, but malice ought not to be inferred from it unless the charge is willfully false. Bishop v. Bell, 2 Bradw. 551; Splane v. Byrne, 9 id. 392; Hirchi v. Mittleman, 7 id. 112; Comisky v. Brun, id. 369.
    In consulting counsel, the defendant, if he acted upon his advice, is protected, unless he culpably withheld material information or was grossly negligent. 2 Greenleaf on Evidence, sec. 459; Stevens v. Fassett, 14 Shep. 266; Brown v.
      Smith, 83 Ill. 291; Ross v. Innis, 35 id. 487; Calef v. Thomas, 81 id. 478; Anderson v. Friend, 85 id. 135.
    It was wrong to state in the instruction that defendant must consult “a respectable attorney in good standing, ” and it was error to require the defendant to act in good faith on the attorney’s advice.
    The seventh of plaintiff’s instructions is erroneous in singling out the fact that plaintiff claimed the right to gather the beans, as being material on the question of larceny. Hatch v. Marsh, 71 Ill. 370; Hirchi v. Mittleman, 7 Bradw. 112.
    The tenth instruction told the jury that if they believed the plaintiff told the truth, they should not disregard his testimony, notwithstanding his impeachment. This was erroneous. Huddle v. Martin, 54 Ill. 258.
    Messrs. Mulkey & Leek, for the appellee:
    Plaintiff’s fourth instruction is not open to the objection that it tells the jury they must infer malice from a want of probable cause. That the jury may so infer malice is supported by the authorities. Chapman v. Cawrey, 50 Ill. 512; Callahan v. Caffarate, 39 Mo. 136; Roy v. Goings, 6 Bradw. 140; Forbes v. Hagman, 73 Va. 168; Clossen v. Staples, 42 Vt. 222; Strauss v. Young, 36 Md. 246; Cooper v. Utterback, 37 id. 282; Mowrey v. Whipple, 8 R. I. 363; Pagev. Cushing, 38 Me. 523; Humphries v. Parker, 52 id. 506; Sappington v. Watson, 50 Mo. 83; Sharp v. Johnson, 59 id. 557; 1 Am. Lead. Cases, (4th ed.) 220; Ross v. Innis, 35 Ill. 487; Thompson v. Force, 65 id. 370; Israel v. Brooks, 23 id. 575; Krug v. Ward, 77 id. 608; Stevens v. Railway Co. 26 Eng. L. & Eq. 410.
    The facts of this case show express malice, beyond doubt. The Criminal Code was resorted to for the purpose of attaining dishonorable personal ends. Ross v. Innis, 35 Ill. 487; Krug v. Ward, 77 id. 605; Schofield v. Feners, 47 Pa. St. 196.

      Acting upon the advice of counsel can never avail as a defence, unless there has been a full statement of all the facts to the advising counsel, of which the party is in possession. Ross v. Innis, 35 Ill. 506; Ash v. Marlow, 20 Ohio, 119; Stevens v. Fassett, 27 Me. 266; Bliss v. Wyman, 7 Cal. 257; Hendricks v. Cyssert, 10 Humph. 291.
    To the same effect are the eases of Ames v. Snyder, 69 Ill. 376; Palmer v. Richardson, 70 id. 544; Anderson v. Friend, 71 id. 475; Davie v. Wisher, 72 id. 262; Murphy v. Lawson, 77 id. 172; Skidmore v. Bricker, id. 164; Calef v. Thomas, 81 id. 478; Anderson v. Friend, 85 id. 137; Loewenthal v. Streng, 90 id. 74.
    There was no error in the instruction requiring the legal advice acted on to come from a competent or reliable attorney, or one in good standing. Davie v. Wisher, 72 Ill. 264; Ames v. Snyder, 69 id. 376; Skidmore v. Bricker, 77 id. 164; Murphy v. Lawson, id. 175; Anderson v. Friend, 85 id. 135; 71 id. 475.
    It is well settled that where one previously forms the design to prosecute another, and then goes and advises with legal counsel as to whether it will be safe to commence such prosecution, the advice of counsel will constitute no defence. Ross v. Innis, 35 Ill. 510; Ames v. Snyder, 69 id. 381; Chapman v. Dood, 10 Minn. 350; Ames v. Rathbun, 55 Bart. 194; Rover v. Webster, 3 Clark, 502; Kimball v. Bates, 50 Me. 308; Brown v. Randall, 36 Conn. 56; Schmidt v. Weidman, 63 Pa. St. 173; Glascock v. Bridges, 15 La. Ann. 672.
    A jury has the right to believe the uncorroborated testimony of a witness whose general reputation for truth has been impeached. Easton v. Chapman, 21 Ill. 35; Otmer v. People, 76 id. 149; Reynolds v. Greenbaum, 80 id. 416; Flousburg v. Basin, 3 Bradw. 531; Green v. Cochran, 43 Iowa, 154.
   Mr. Justice Walker

delivered the opinion of the Court:

In January, 1878, Roy, the appellant, sold to Goings, the appellee, a farm, in Pulaski county, in this State, and executed a bond for a title when payment should be made, as specified in the bond. For a part of the consideration, appellee gave his note to appellant, for $278.47, payable on the first day of March, 1879. To secure the payment of the note, appellee and his son executed a chattel mortgage on one mule, three horses, a two-horse wagon, and all the crops that should be grown on the farm in the year 1878. The mortgage contained a clause authorizing the mortgagors to retain the possession of the property until the maturity of the debt. Also, a provision authorizing the mortgagee to foreclose at any time he might feel the debt was insecure. Appellee entered into possession of the farm, and planted a crop of corn and tobacco, and also planted among the corn some pumpkins and beans. He, during the time, resided with his family on another farm, about two miles distant. There was no barn or building on the farm in which to secure the corn, tobacco and beans, when matured, but appellee had a house on the place’where he lived, suitable for curing and preserving the tobacco. When matured he cut it, and removed it to the place where he resided, for the purpose of curing and preserving the same. Soon after the execution of the mortgage, appellee sold the mule named in the mortgage, to appellant, for $110, which sum was credited on the mortgage. After the tobacco was cured, appellee returned it to the farm on which it was raised, and stored it in a small cabin on the place. Appellant made several attempts to purchase the corn raised on the place, but was unable to agree with appellee upon the price. When the beans were ripe, appellee, assisted by members of his family, gathered a load, and hauled them to his house, for the purpose, as he claims, of threshing them. He, the next day, gathered another load, and hauled them home for the like purpose. This last load was gathered on the 7th day of October, 1878. Appellant having learned that appellee had gathered a load on the previous day, on the morning of that day posted, on a tree in the vicinity of the farm, a notice that he had taken the crop raised on the farm, under the mortgage, and would offer it for sale. Having learned that Goings had gathered a second load of the beans on that day, appellant saw him at his home, and informed him that he had advertised the property for sale, and notified Goings that he would put him in jail if he did not quit gathering the beans. Goings insisted appellant had no right to foreclose the mortgage, and he would continue to gather the beans, as he had the right to do. On the 10th of October, whilst Goings and his children were in the field gathering beans, appellant had him arrested on a charge of larceny, and taken before a justice of the peace, who,"after hearing the evidence, bound him over, in the sum of $200, for his appearance at the next term of the circuit court, but being unable to procure bail, he was committed to jail, where he remained for thirty-seven days, when, the grand jury failing to indict, he was discharged from imprisonment. After his discharge, appellee commenced this action in case, for a malicious prosecution, and on a trial the jury found a verdict in his favor for $1272. A motion for a new trial was overruled, and judgment entered on the verdict. Defendant prosecuted an appeal to the Appellate Court, where the judgment was affirmed, and a further appeal brings the case to this court for review.

Several errors are assigned, and urged for a reversal of the judgment. It is claimed the court erred in giving appellee’s instructions. The first of which complaint is made is the fourth. It is this:

“If you believe, from the facts and circumstances as given in evidence, that the defendant had not probable cause for the arrest and imprisonment of the plaintiff, then and in such case you may infer malice from such want of probable cause.

The objection is, as claimed, that the instruction asserts that the want of probable cause is in law an inference that there was malice,—that it asserts this as a legal conclusion. Such is not the announcement, nor is it a fair interpretation of the language. The instruction does not inform the jury that they will, must or should so find, but that they might so find. The instruction is not mandatory, but permissive. The jury, no doubt, understood, that if, all the evidence considered, it did not appear that there was probable cause, then, if it was a fair inference, they might infer malice. In the case of Chapman v. Cawrey, 50 Ill. 512, an instruction in almost precisely the same language as this, was approved, and the judgment affirmed. The same doctrine is announced in Krug v. Ward, 77 Ill. 603, Thompson v. Force, 65 id. 370, Israel v. Brooks, 23 id. 575, and Ross v. Innis, 35 id. 487. These cases establish the rule, and are conclusive of the question. If it were necessary, many adj udged cases of other courts might be cited in its support, but these of our own o court establish the rule.

Again, instructions are given in view of the evidence in the case, and not as mere legal abstractions. An instruction may be proper or not, in view of the evidence before the jury. If the trial court was satisfied that the evidence strongly tended to prove malice, then the instruction could, even if erroneous in that respect, have done no harm,—and when considered in this case, it tends, in the strongest manner, not only to prove the want of probable cause, but malice on the part of appellant.

Appellant criticises appellee’s fifth instruction. It is as follows:

“Before the defendant can shield himself by the advice of counsel, it must appear from the evidence that he made in good faith a full, fair and honest statement of all the material circumstances bearing upon the supposed guilt of the plaintiff which were within the knowledge of the defendant, or which the defendant could, by the exercise of ordinary care, have obtained, to a respectable attorney in good standing, and that the defendant in good faith acted upon the advice of said attorney in .instituting and carrying on the prosecution against the plaintiff. ”

We are unable to perceive any serious objection to this instruction. It announces the general rule long and uniformly recognized in this class of defences. It informs the jury, that to shield himself, appellant was required to make a full, fair and honest statement of all the material circumstances of the supposed guilt of appellee which were within the knowledge of appellant, or which he could have learne'd by ordinary care, to a respectable attorney in good standing, and act on his advice. To protect himself he must make a full statement of all material facts. He will not be protected if he makes a garbled and untrue statement. Human liberty is too sacred to be recklessly invaded to gratify malice, or for the advancement of personal interest. The law will not tolerate such nefarious purposes or reckless disregard of the liberty of the citizen. There is no pretence, here, that appellant disclosed to the attorney that appellee took the property openly, in daylight, as any other person would have done with his own property. Nor did he inform the attorney that appellee had insisted that appellant had no right to foreclose the mortgage until the debt was due, and that he had claimed the right to gather and preserve the beans. Nor does appellant pretend that he had forgotten these circumstances, or urge any other excuse for withholding such important and controlling facts. Had he communicated them, we can not believe any attorney would have pronounced it larceny. On the facts appearing in evidence, the modification insisted upon would' have been improper, because there was no evidence upon which to base it.

It is also urged, as we understand the argument, that it was error to require by the instruction that the communication should have been made to an attorney in good standing; that the instruction should have informed the jury that if the communication was made to the State’s attorney, and he advised it was larceny, it was a full defence. We are not prepared to hold that the mere fact that an attorney holding a commission as State’s attorney, must be held to be an attorney in good standing for skill, prudence and fairness. In this case, there was evidence strongly tending to prove the State’s attorney who gave the advice was habitually intemperate, and perhaps to an extent that blunted and impaired his mental capacity. In the case of Skidmore v. Bricker, 77 Ill. 164, an instruction similar to this was held to be correct, although defendant consulted the State’s attorney, and acted on his'advice:

. It-is urged that the instruction required too much in saying that appellant must have acted in good faith in starting the prosecution, after having obtained the opinion of the State’s attorney,—that his advice should protect a party commencing such a proceeding, without reference to good -faith. The law in all cases requires good faith, or, rather, a belief that the accused is guilty of the crime charged. The person claiming the accused is guilty, may know or believe he is not, although the attorney may suppose he is. This portion of the instruction was approved in Skidmore v. Bricker, supra. Nor are we disposed to overrule "or modify the doctrine.

It is, however, urged, that the cases of Calef v. Thomas, 81 Ill. 478, and Anderson v. Friend, 85 id. 135, announce a different rule. The rule in those cases is stated in general terms, and perhaps not with exact precision. In the former of those cases it was said, that if the defendant in good faith communicated to the State’s attorney all the material facts affecting the question of the plaintiff’s guilt which were known to him, and he acted on such advice, the presumption of malice was rebutted. The question whether the fact that the attorney consulted, was the State’s attorney was conclusive that he was reputable, reliable and competent, was not presented in those cases. They are not authority in this case.

What has been said disposes of the objections to the sixth and seventh of plaintiff’s instructions.

But objections are urged against the tenth instruction of plaintiff. It is this:

“While the law permits the impeachment of a witness by proving his general reputation for truth and veracity in the neighborhood where he resides to be bad, yet if you believe that the plaintiff, while on the stand, gave a truthful, candid and honest statement of the facts and circumstances surrounding the transaction in question, then the jury should not disregard his testimony, but you should give it such faith and credit as in your opinion it is entitled to.”

We are unable to perceive any error in this instruction. A jury should never give the slightest weight to testimony, however positive, which they believe to be untrue. On the other hand, they should give full weight to all which they believe to be true. The very purpose of testimony is to establish the truth of the contested proposition. This instruction does not assert that the jury may believe an impeached witness. If he was impeached, then his evidence would be unworthy of belief, and it should have no weight. The instruction states correctly that the law permits the impeachment of a witness by proving his general reputation for truth and veracity is bad; but if the evidence fails to prove that fact to the satisfaction of the jury, the witness is not impeached, nor is he if, after hearing the impeaching testimony, the jury still believe his evidence to be true. Whilst this instruction is not artistically drawn, it does not state an incorrect rule of law, and we think did not mislead the jury, and it was not error to give it.

Complaint is made that the court refused to give the tenth and twelfth instructions asked by appellant. The tenth was erroneous because it omitted essential facts to establish probable cause. As we have seen, appellee took the beans openly, in daylight, and publicly, under claim of right, of which appellant had notice. If probable cause is a question of law, it would have been the duty of the court, had it been asked, to have instructed that there was not probable cause. It would therefore have been error to instruct that there was probable cause, and the instruction was properly refused. The substance of the twelfth instruction had, in a different form, been given in other of appellant’s instructions.

Complaint is made that the court committed error by instructing the jury as to the manner in which they should act in finding the amount of damages. The jury returned a verdict for plaintiff, and on being polled the court permitted the question to be asked as to the manner in which they had assessed the damages. It appeared in answer to the question, that each juror fixed a sum, and all of these sums were placed on a piece of paper, added up, the sum divided by twelve, and the quotient taken as the verdict. The court thereupon, of its own motion,- gave the jury this instruction:

“If your verdict be in favor of the plaintiff, you can not, in determining the amount of damages for the plaintiff, add together the respective amounts named by each juror, and divide the sum by twelve, the number of jurors, but must determine and agree upon the amount of damages collectively, and as one body.”

The court thereupon sent the jury out again. It is urged that the court had no power to so instruct of its own motion, or to require the jury to retire and further consider of their verdict. It has been repeatedly held that the court has ample power to instruct sua sponte,—and it may be added, such is its duty, when the promotion of justice demands it. Courts are created to administer justice, and not to sit by and see it defeated and wrong perpetrated, when it can be avoided by the judge without transcending his powers or invading the province of the jury. In this case, giving the instruction and causing the jury to further consider of their verdict, was clearly within judicial power, and, the court committed no error in its exercise.

The jury again returned a verdict for the same amount, and on being polled, each juror said it was his verdict. It is, however, insisted, that inasmuch as the verdict is for the same amount, the result must have been reached by addition and division, as before, and it should have been set aside. It does not follow that it was, because the amounts are the same, and under the last instruction we must presume the jury conformed their action to its requirements. Moreover, each-juror said it was his verdict, which repelled such a presumption. It was error to permit the jurors to testify or be questioned as to the mode in which they arrived at the amount of damages. No rule is better or more firmly established than a juror can not testify to impeach a verdict he has participated in finding. But the error was that of appellant, and of it he can take no advantage. Such practice is not to be encouraged, as it violates well and firmly established rules, and must, if permitted, lead to abuse.

We perceive no error in overruling the motion for a new trial. If there is error, we are unable to review it. The amount of damages is a question of fact, which we are precluded from considering.

Perceiving no material error of law, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scholfield

text:
    Mart Germain et al. v. Peter J. Baltes et al.

      Filed at Mt. Vernon

      January 22, 1885.

    1. Devise—to one as trustee, as distinguished from a devise to a religious corporation. A devised unto B, a Catholic bishop, in his individual capacity, all the real and personal.property owned by the testator at his death, in trust that upon the request of a certain' religious congregation the trustee would sell the property, either at public or private sale, and apply the proceeds to the erection or-maintenance, or both, of an orphan asylum, under the direction of and as requested by such congregation: Held, that this was not a devise of real estate to a religious corporation, but to an individual as a trustee, and is not prohibited by any statute or law of this State.
    2. Same—whether a devise of money or of land. Where a testator devised all his real and personal estate to one as a trustee, to he sold and converted into money when so requested by an incorporated religious society, and applied in establishing an orphan asylum, to be under the direction and control of such society, it was held, that the devise in favor of the charity was a devise of money and not of land, and was such as the courts will uphold.
    Writ of Error to the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.

      This was a bill in equity, by the heirs of Catharine Agnes Germain, to set aside the will of the latter, on the ground the testatrix was of unsound mind, and undue influence, and also on the ground that a devise of land to a religious corporation, of more than ten acres, is void. The circuit court refused to set aside the will or the devise in trust.
    Messrs. Hat & Knispel, for the plaintiffs in error:
    In the case of St. Peter’s Roman Catholic Congregation v. Germain, 104 Ill. 440, this court held that the deed set out in the bill and decree, from Catharine Agnes Germain to the congregation, was null and void.
    A charity, in a legal sense, may be defined as a gift to be applied, consistently with existing laws, for the benefit, etc. Jackson v. Phillips, 14 Allen, 556.
    A trust can not be created in favor of a corporation, if there is some requirement of the law that will thereby be evaded, as, where such corporation, by charter, is restricted from holding real estate beyond a certain amount. Lewin on Trusts, 35, 36; 3 Bedfield on Wills, 477.
    It follows, that a charitable use will not be sustained if inconsistent with existing laws. It will not be upheld if it contravenes an express provision of law, or if it is for a purpose forbidden by public policy. Perry on Trusts, 715.
    The most common illustration of the rule that courts will not uphold gifts for charitable purposes where such gifts contravene some law, is found in the numerous cases that have arisen under the English statutes of Mortmain, 9 George II, chap. 36; Story’s Eq. Jur. 296, 297; 3 Bedfield on Wills, 494.
    Where, under the statutes of Mortmain, lands are devised to a charity, the trust is not only void, but the legal estate does not vest, and the heir may recover in such cases. 2 Bedfield on Wills, 511; Williams on Executors, 1075.
    Under the English statutes of Mortmain, courts of equity will not allow charities to hold money bequeathed, where it is directed to-be raised out of the sale of real estate. 1 Jar-man on Wills, 218, 219.
    In New York, under similar statutes, it has been repeatedly decided that real estate can not be devoted to charity. 2 Bedfield on Wills, 545, 546; Beekman v. People, 27 Barb. 260; McGaughal v. Ryan, id. 376.
    Mr. Charles W. Thomas, for the defendants in error:
    No devise is made to the corporation, but to the bishop in his individual capacity, in trust for the establishment of a public charity, and the statute (43 Eliz. chap. 4,) called the Statute of Charitable Uses, is in force in this State. (Heuser v. Harris, 42 Ill. 425.) By its provisions, all the statutes of Mortmain in force when it was passed, were, pro tanto, repealed ; and there has been in England no restriction upon gifts or grants for charitable purposes, until the passage of the statute of Mortmain, 9 George II, chap. 36, which is cited by counsel for plaintiffs in error, but which is not in force in Illinois. (Perry on Trusts, see. 696.) In fact, many of the authorities referred to by counsel were either made with reference to this last named act, or to similar statutes in New York and Pennsylvania, or were previous to the statute of 43 Elizabeth. Perry on Trusts, see. 715. •
    But even if the Statute of Charitable Uses was not in force in Illinois, the courts would, nevertheless, hold valid and carry into effect all gifts and grants for charitable purposes. Perry on Trusts, secs. 694, 748.
    Under the Statute of Charitable Uses the devise in this case would be upheld if it were directly to the congregation, in trust, to erect and maintain an asylum for orphans. Perry on Trusts, secs. 45, 687; Heuser v. Harris, 42 Ill. 425.
    If an executor selects an agent who will not or can not act, the beneficiaries of his charity will not be deprived of its benefits, but the courts will execute the will and enforce the trust. Story’s Eq. Jur. secs. 1165-1169.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

The will of Catharine Agnes Germain is as follows:

“In the name of God, Amen. I, Catharine Agnes Germain, being infirm of body but of sound and disposing mind and memory, and being especially desirous to aid, as far as I can, in the erection and maintenance of an orphan asylum in the city of Belleville, in the State of Illinois, do make and ordain this my last will and testament. I give and bequeath and devise unto the Right-Reverend Peter Joseph Baltes, Roman Catholic Bishop of Alton, in his individual capacity, upon the trusts and for the uses and purposes hereinafter mentioned, all my real estate and personal property of which I may die seized, or in or to which, at the time of my death, I may have any right, title or interest. I direct that the said Baltes shall, upon the request of the St. Peter’s Roman Catholic Congregation of said city of Belleville, sell all of said property, either at public or private sale, as he may deem best, and apply the proceeds of such sale to the erection or maintenance, or both, of an orphan asylum in said city of Belleville, under the direction of and as requested by said congregation. I appoint the said Peter Joseph Baltes executor of this my last will and testament, and direct that no bond be required of him as such executor.
“Signed by me and sealed with my seal' this 14th day of May, A. D. 1879.

We held in St. Peter’s Roman Catholic Congregation v. Germain, 104 Ill. 440, that a grant of land in excess of ten acres in quantity, to a religious society, is, under section 42, chapter 32, of the Revised Statutes of 1874, absolutely void; and counsel for plaintiffs in error contend that the same doctrine is applicable to this devise, and renders it void, likewise. This, as we conceive, is a clear misapprehension of the character of this devise. The purpose of the statute in prohibiting religious societies from owning and holding lands beyond ten acres in quantity, is, very clearly, to prevent lands being tied up in the hands of corporations, and to leave them free to pass by conveyances, as the wants and conveniences of society may demand. But this devise is not to a corporation, but to a natural person,—Peter Joseph Baltes,—in his individual capacity. The land is not to be kept for the benefit of a corporation, but is to be sold and conveyed by him, and thus, instead of being tied up, it is to pass, as soon as it conveniently may, into other hands, and is therefore as free to barter, sale and conveyance as any land possibly can be.

There is nothing in any statute upon our statute book, of which we are aware, that prevents an individual from giving his property to charity, if he shall desire to so dispose of it.

He may certainly sell his property, convert it into money, and give the money to charity, and if he may do this, it is impossible to conceive why he may not place it in the hands of a trustee to do the same thing. The only thing that is prohibited, is the owning by the corporation of more than ten acres of land. Under a "well settled rule of construction, the devise, here, in favor of the charity, is to be regarded as a devise of money, and not of land. Baker v. Copenbarger et al. 15 Ill. 103.

It is not claimed, and can not be, that this devise, as one to charity, apart from the question just considered, can not be upheld under our law. The reverse is settled law. Heuser v. Harris, 42 Ill. 425; Andrews v. Andrews, 110 id. 223.

See, also, Perry on Trusts, (1st ed.) secs. 692, 693, et seq., and notes.

The decree is affirmed.

Decree affirmed.


author: Mr. Justice Mulkey

text:
    William Hamilton et al. v. The People of the State of Illinois.

      Filed at Mt. Vernon

      January 22, 1885.

      1. Criminal law—indictment for assault to murder—its requisites. It is not necessary that an indictment for a felonious assault with intent to murder should set out the manner of the assault with any degree of particularity, the gist of the offence being the assault with a felonious intent.
    2. Same—the act of one as the act of all engaged in the same unlawful transaction. Where three persons entered the premises of another with intent to steal, and on being detected by the owner, assaulted him, and during the difficulty ensuing, one of them struck the owner and another shot at him with a pistol, it was held, that whatever act was done by any one of the defendants so entering the premises, was in law the act of all, and that all were guilty of an assault with intent to murder.
    3. Same—assault to murder—pleadings and proofs as to deadly character of weapons used. An indictment for an assault with intent to commit murder, charged that the defendants assaulted the prosecutor with a loaded pistol and a hoe, without alleging the hoe and the pistol were deadly weapons, and there was no direct proof that they were deadly weapons: Held, that the indictment was sufficient, and that if it was necessary to show the weapons used were deadly ones, that was shown by proof of an assault with the pistol and hoe, and that a hoe, in legal signification, is a deadly weapon, as much so as a loaded pistol or an ax, and that proof of their deadly character was not necessary.
    4. Evidence—as to matters generally known. Such things as all per- ■ sons of ordinary intelligence are presumed to know, are not required to be proved. It is not, therefore, necessary, on the trial of parties for an assault with a loaded pistol and a hoe, with intent to murder, to prove that they were deadly weapons.
    Writ of Error to the Circuit Court of Saline county; the Hon. Oliver A. Harker, Judge, presiding.
    Messrs. Morris & Boyer, for the plaintiffs in error:
    The charging part of the indictment is, that the defendants, on and at, etc., “with a certain loaded pistol, and with a certain hoe, the same being a deadly weapon, which said pistol and hoe the said (defendants) then and there held in their hands, with which said pistol and hoe the said (defendants) did then and there unlawfully make an assault upon one S. P., in the peace of the People, then and there being with an intent, then and there, with the pistol and hoe aforesaid, unlawfully, feloniously, with malice aforethought, to kill and murder the said S. P.,” etc. Under this charge the People were bound to prove the hoe was a deadly weapon, and that the assault was made with both.
    The defendants tried could not have been convicted as accessories to the shooting by Baton, without also proof of the other alleged cause. 3 Greenleaf on Evidence, .sec. 141 ; Moore’s Crim. Law, sec. 138; Rex v. Saunders, 7 C. & P. 277.
    The proof does not show these defendants aided and abetted Baton in his assault, but that they prevented Baton from shooting the prosecutor. The charge in the indictment is fatally defective, because of its uncertainty.
    Mr. W. V. Choisser, for the People:
    A person may be guilty of murder although he took no part in the killing, nor assented to any arrangement having for its object the death of another, if he combined with those who committed the deed to do an unlawful act, such as, to beat or rob, and death ensue in consequence of the attempt to execute the common purpose. Brennan v. People, 15 Ill, 511.
    If a defendant, and others indicted with him, had a common design to do an unlawful act, then, in contemplation of law, whatever act any one of them did in furtherance of the original design, is the act of all, and all are equally guilty of whatever crime was committed. Hanna v. People, 86 Ill. 243.
    The objection raised to the sufficiency of the indictment is certainly not well taken. It is not necessary to allege the commission of the act constituting the assault, nor to state the means used by the assailant, nor the manner of committing the assault. Connolly v. People, 3 Scam. 417; Allen v.
      People, 82 Ill. 610; McKinney v. State, 25 Wis. 378; State v. Chandler, 24 Mo. 371.
    The Supreme Court of Iowa, in State v. Seaman, 1 Green, 418, holds an indictment good which charges the assault to have been made with a deadly weapon, without any description of the instrument.
   Mr. Justice Mulkey

delivered the opinion of the Court:

At the September term, 1883, of the Saline circuit court, William Hamilton, Hat Mitchell and William Eaton were jointly indicted for an assault upon Samuel Parks, with intent to murder. At the March term, 1884, of the court, Hamilton and Mitchell were alone put upon trial, which resulted in their conviction, the jury fixing the term of their confinement in the penitentiary at two years, and the court sentenced them accordingly. The accused have brought the record here for review, and ask a reversal of the conviction mainly on the ground it is not sustained by the evidence.

The difficulty out of which the present prosecution arose, occurred on the farm of Samuel Parks, between eight and ten o’clock of the night of September 1, 1883. The account given by Parks of the affair, is in substance as follows: “For two nights previous to the difficulty some one had been in my water-melon patch. I went down to the orchard and melon patch between eight and ten o’clock. My son, Samuel, went with me, and took a shot gun. We located about ten steps apart. Soon we heard some one coming. It was Hamilton, Mitchell and Eaton. After they had crossed the fence and started in the patch, one of them said, ‘The biggest ones are down-this way.’ Mitchell came towards me, and Hamilton and Eaton went towards the boy. He halted them. Mitchell ran. Eaton called him a damned coward, and called him back, saying, .‘There’s only a man and a boy,—let’s get what we came after.’ I invited them to go to the house with me and eat water-melons, but they refused. Baton told the boy not to shoot, and was rushing towards him. I told them the boy would not shoot,—that he was nothing but a boy, and not to hurt him. Hamilton said that Baton was nothing but a boy either, and to let them fight. I started to the boy. Baton ran up to him and knocked him down, and Hamilton caught me around the arms and threw me down. Baton took the gun away from the boy. Hamilton fell on top of me. I turned him, and think I struck him. I was a-straddle of him. He hit me in the face and on the head with something hard. I do not know what it was. My wife now came up with a hoe. Baton knocked her down while I was engaged with Hamilton. I saw him chuck her head upon the ground. I heard Mitchell ask Hamilton if he was on top. * * * I felt something hard on my breast. I found it was a stone, which Mitchell, I thought, was giving to Hamilton. I took it out of his hands, and hit Hamilton- three blows, and broke him loose from me, and as I was raising up, Baton shot at me with a pistol. The powder burnt my face. * * * As we got up, Mitchell hit me on the head with a hoe. I did not know anything after that time. ”

Such is the general outline of the affair as given by Parks, and while there are some slight discrepancies between him and his son in their statements of the facts, yet, under the circumstances, there is nothing in them inconsistent with good faith and an honest purpose to tell the truth. In the darkness of the night the witness may have been mistaken as to some of the details, yet after making ample allowances for this, and giving the accused the full benefit of all doubts, we are of opinion there is still sufficient evidence to warrant the conviction. The fact is undisputed that the three defendants, one of whom was armed with a pistol, invaded the premises of the prosecuting witness with a criminal purpose. The business upon which the parties had deliberately entered was a hazardous one. They had a right to expect that in the event they were detected in stealing the melons, it would result in violence endangering life or limb,—as it actually turned out afterwards. That they were all co-conspirators in a dangerous criminal enterprise, is an undisputed fact. Such being the" case, whatever was done by one, in contemplation of law was done by all, and all are therefore equally responsible.

The claim that Mrs. Parks, and not Mitchell, struck her husband with the hoe, is not supported by the evidence. This hypothesis is sustained by the testimony of Mitchell alone, who, if guilty, had the strongest motives for concealing the truth. Besides, in his statement he is positively contradicted both by Parks and his wife. The latter says: “I went to the melon patch, and saw there was going to be a row. I went back to the house to get a hoe, and took it down with me. When I got there, Mr. Parks and Hamilton were on the ground, fighting, and Baton had Sam down about six or seven feet from them. I struck Baton with the hoe. I tried to get at Hamilton and Mr. Parks, when Eaton knocked me down. Mitchell took the hoe from me. * * * I did not strike at Hamilton with the hoe. ” Thus her testimony is wholly inconsistent with the idea that she struck at Hamilton with the hoe, and hit her husband.

The point is made there is no proof that the hoe with which the assault is alleged to have been made is a deadly weapon. The indictment alleges, and the proofs show, that an assault was made upon Parks with a loaded pistol and a hoe. This we think was sufficient. Conceding it was necessary that the deadly character of the weapons with which the assault was made should have been established before the jury, (a matter not necessary to be determined,) we are of opinion that was sufficiently done by proof that it was done with a hoe and loaded pistol. A hoe, both in popular and legal signification, is per se a deadly weapon,—fully as much so as a loaded pistol or an ax. Such things as all persons of ordinary intelligence are presumed to know, are not required to be proved. While the indictment is somewhat informal, yet we think it is sufficient, at least after verdict, no motion having been made to quash. In a case of this kind the gist of the offence is the assault with a felonious intent, hence it is not necessary to set out the manner of the assault with any degree of particularity. 2 Wharton on Crim. Law, see. 1282.

Upon the whole, we perceive no substantial ground for disturbing the judgment of the court below, and it is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Chicago, Burlington and Quincy Railroad Company v. Sarah A. Reno et al.

      Filed at Ottawa

      January 22, 1885.

    1. Specific pebfobmance—whether it will be decreed—generally. A bill for the specific performance of a contract is addressed to the sound discretion of the court, and that relief will not be granted as a matter of course, although a legal contract may be shown to exist. The contract must be founded on a good consideration, and be reasonable, fair and just, and it must not be inequitable, or interfere with the public interest to enforce the same.
    2. A specific performance of a contract will be decreed when it is apparent, from a view of all the circumstances of the case, that it will subserve the ends of justice; and it will be withheld when, from a like view, it appears it will produce hardship or injustice to either of the parties.
    3. Same—where there is a remedy at law—the public interests to be considered. The owner of premises used for a coal and lumber yard, made a bond for a deed of a part of such premises to a railway company, which provided that the company should “restore all the switch connections then existing” between the railroad and the yards of the vendor, and he afterward conveyed the part so sold, by a deed without any conditions, under which other railway companies acquired title, and laid tracks, over which all passenger and freight trains of several roads passed, and it appeared that to restore the switch connections as before would be detrimental to the business of the roads and to the public interests, and that there was a track laid alongside of the yard, and a connection with it was offered. It was held, that as the vendor had an adequate remedy at law for the breach of the contract, and to enforce the same specifically would produce great hardship and burden upon the railroad companies, and affect injuriously the public interests, a specific performance should not be decreed.
    Appeal from the Appellate Court for the First District;— heard in that court- on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Messrs. J. P. & T. R. Wilson, for the appellant:
    Discretion of the court as to specific performance: Matlock v. Buller, 10 Ves. 292; Nillon v. Nillon, 16 id. 83; Jones v. Slatham, 3 Atk. 388; Willard v. Taylor, 8 Wall. 557.
    Specific performance of the contract would operate unjustly and oppressively on appellant, and would also prove an inconvenience to the public.
    Appellees have an adequate remedy at law, while specific performance would do injustice to appellant. Waterman on Specific Per. secs. 9, 16; Story’s Eq. Jur. sec. 717.
    Messrs. Dexter, Herrick & Allen, also, for the appellant:
    The covenant sought to be specifically enforced was that of the Fort Wayne company, and is not binding on appellant, and can not, therefore, be enforced against it.
    A court of equity will not specifically enforce any contract unless it be certain. Pomeroy on Specific Per. secs. 145,159.
    The enforcement of the decree will involve a continuous supervision by the court, and possible controversies between the parties, which will require separate judicial examinations, and it should therefore be reversed as unreasonably taxing the time and resources of the court, and not within the proper scope of a decree for specific performance.

      Mr. C. C. Clarke, Mr. J. B. Skinner, and Mr. Horace F. Waite, for the appellees:
    The discretion vested in courts of equity to grant or refuse the specific performance of contracts is not an arbitrary one, but is subject to certain well defined principles. Waterman on Specific Per. secs. 6, 11; Story’s Eq. Jur. sec. 742; Rodgers v. Saunderson, 16 Maine, 92; St. Paid Div. v. Brown, 9 Minn. 157; Allen v. Woodruff, 96 Ill. 11.
    Such contracts have been enforced specifically. Raphael v. Railway Co. L. R. 2 Ch. 147; Hood v. Railway Co. L. B. 8 Eq. 666; 5 Ch. App. 525; Railroad Co. v. Hawkes, 5 H. L. Cases, 331; Wilson v. Railroad Co. L. R. 9 Eq. 28; Stuyvesant v. Mayor, 11 Paige, 414; Saunderson v. Railroad Co. 11 Beav. 497; Storer v. Railroad Co. 2 Y. & C. Ch. 48; Price v. Corporation of Penzane, 4 Hair, 506; Parker v. Garrison, 60 Ill. 250; McMullen v. Vanzant, 73 id. 190; Yoakum v. Yoakum, 77 id. 85; Langston v. Bates, 84 id. 524; Bohannon v. Bohannon, 96 id. 591.
   Mr. Justice Craig

delivered the opinion of the Court:

In 1858 one Abner Reeves owned lots 26 to 46, inclusive, in block 63, in school section addition to Chicago, bounded on the north by Forquer street, on the east by Beach street, on the south by Taylor street, and on the west by an alley. In the year 1858 the Pittsburg, Fort Wayne and Chicago Railway Company, under the authority of an ordinance of the city of Chicago, constructed its tracks on Beach street. The tracks so constructed were also used by the Chicago and Alton Railroad Company, and, as appears from the record, were the main tracks running to the passenger depot of the two companies. Soon after these tracks were laid, a switch was built on Beach street, which connected the tracks of the Fort Wayne company with tracks owned by Beeves upon his lots, by means of which, cars passing over the Fort Wayne and Alton roads were switched upon Beeves’ premises, which were used by him as a coal and lumber yard. In 1875 Beeves died, leaving Sarah A. Beño and Eugenia M. Little two of his heirs, who purchased the interest of the other heirs in said premises. After they acquired title, their husbands, under the firm name of Beño & Little, occupied a portion of the lots as a coal yard. On the 38th day of July, 1880, Mrs. Beño and Little sold the Pittsburg, Fort Wayne and Chicago Railway Company lots 33 to 40, inclusive, in block 63, for the sum of $35,000, being' one hundred feet each side of lots 36 to 46. The contract of sale was reduced to writing, and contained the following clause: “And it is further so agreed between the parties hereto, that said second party shall, on taking possession of the premises as hereinbefore described, restore all the switch connections now existing between said second party and said first party, or any of them, and continue to them the use of the same, hereafter as heretofore. ” On the 33d day of November, 1880, a deed wras made, at the request of the Fort Wayne company, to James D. Layng, its general manager. The deed executed was a general warranty deed, and conveyed the premises without any reservation whatever, or without any reference to that clause of the contract in regard to switch connections. Layng, by his deed dated December 39, 1880, conveyed to the Fort Wayne company an undivided one-half of the east sixteen feet of the premises, and by deed.of the same date conveyed the other undivided half of the last named premises to the Chicago and Alton Bailroad Company, and by deed of the same date, for a consideration of $38,761.40, he conveyed to the Chicago, Burlington and Quincy Bailroad Company the remaining portion of said premises. The Fort Wayne and Alton companies, after taking possession of the premises conveyed to them, restored the switch connections, as provided in the contract of sale; but the Burlington road, upon entering into possession of the premises conveyed to it by Layng, removed the switch connections and tracks which crossed the premises conveyed to it, and constructed upon said premises seven tracks, which it has used and operated ever since. After the Burlington road had removed the tracks which formed the switch connections, the Alton and Fort Wayne roads were requested to restore the switch connections, as provided in the written contract of sale, but the railroad companies declined to comply with this request, and Sarah A. Reno, and her husband, Charles A. Reno, Eugenia M. Little, and Jacob H. Little, her husband, filed a bill for a specific performance of that part of the contract of sale providing for a switch connection over the premises. On the hearing in the Superior Court, a decree was rendered as prayed for in the bill. This decree was affirmed in the Appellate Court, and an appeal has been prosecuted here to reverse the judgment of the Appellate Court.

Much of the argument has been devoted to a discussion of the question whether the Burlington road is bound or concluded by the contract of sale under which the Fort Wayne railroad company purchased the premises. We shall not, however, stop to discuss or pass upon that question, as the decision of the case must be placed upon other grounds. The bill is brought to enforce the specific performance of a contract, and the case made under the bill must be governed by the law as it has been settled by the courts in that class of cases.

The principle which should govern where a bill is brought to enforce the specific performance of a contract, is not a new one in this court. On the other hand, this court has, in a number of eases, discussed the question, and determined the law which should, as a general rule, control in such eases. This court has often decided that a bill for specific performance of a contract is addressed to the sound legal discretion of the court, and relief will not be granted as a matter of course, although a legal contract may be shown to exist. In Lear v. Chouteau, 23 Ill. 39, it was held that in order to induce a court of equity to enforce, specifically, a contract, it must be founded on a good consideration,—it must be reasonable, fair and just. In Iglehart v. Vail, 73 Ill. 63, it was held that it was not every contract that will be specifically enforced. Especially if there is anything that makes it inequitable, courts will hesitate to do so. In McCabe v. Crosier, 69 Ill. 501, it was held to be the settled doctrine of this court, as of most other courts of equitable cognizance, that a party can not call of right upon a court of equity to exercise that branch of its jurisdiction,—that its exercise rests in the sound discretion of the court, in view of the terms of the contract of the parties, and the surrounding circumstances. To the same effect is Bowman v. Cunningham, 78 Ill. 48. In Chicago and Alton Railroad Co. v. Schoeneman, 90 Ill. 258, which was a bill brought by certain parties to compel the railroad company to construct and maintain a certain swing draw-bridge, in conformity with an agreement in that regard, it was declared to be a settled principle that a specific performance of a contract is not to be decreed as a matter of course because a legal contract is shown to exist, but it rests entirely in the discretion of the court, upon a view of all the circumstances of the case. In the same case it was also held: “Where the effect of the specific performance would be to impose upon the defendants a large expenditure and heavy burden, and inconvenience to public interests, without any practical benefit to the other-party, a court of equity, in the exercise of its discretion, will refuse to decree it, and leave such other party to whatever remedy he may have at law for a breach of the contract. ” See, also, Fish v. Leser, 69 Ill. 394; Matlock v. Butler, 10 Ves. 292; Welton v. Welton, 16 id. 83; Willard v. Taylor, 8 Wall. 557. In the last case cited, the court held that no positive rule could be laid .down by which the action of the court can be determined in all cases, and said: “In general it may be said, that the specific relief will be granted where it is apparent, from a view of all the circumstances of the particular case, that it will subserve the ends of justice, and that it will be withheld when, from a like view, it appears that it will produce hardship or injustice to either of the parties. ”

Other authorities illustrating the doctrine might be cited, but it will not be necessary to do" so. Enough have been cited to show the law on the subject, and it will only be necessary now to inquire briefly as to the facts and circumstances surrounding the transaction, to determine whether the decree granting the relief prayed for in the bill is in harmony with the law.

The passenger and freight depots of the Burlington road are located three blocks north of the premises owned by appellees, and the seven tracks constructed by the Burlington road on the premises conveyed by Layng to it, are the only tracks owned by the company where its freight and passenger-trains can be made up. The Burlington road has invested in freight and passenger depots about $1,500,000. Thomas L. Potter, general manager, whose evidence is not contradicted, testified that the passenger tracks are used continually all times of the day. Trains are arriving and departing all the time, and every train that comes in has to be made up on those tracks. He also testified that two hundred freight trains a day pass over the tracks, in and out. In answer to a question as to.the effect the construction of switches across the tracks would have upon the business of the road, he testified that it would ruin the tracks.for business. Indeed, it appears from the evidence that it would be impracticable to operate the proposed switches over the Burlington tracks, on account of the constant use that is made of these tracks by the Burlington- road. It seems plain from the evidence, that the construction of the proposed switches across the tracks of the Burlington road would seriously embarrass its operation at that point. The effect could not be otherwise than to delay trains carrying both passengers and freight, and endanger their safety. The carrying of the mails would be retarded, and, indeed, the commercial business of the country would, to a great extent, be disturbed. These are matters in which the public, as well as the Burlington road, have an interest, and we are satisfied, from the evidence, that if the decree should be sustained the public business of the country would be seriously damaged.

Under such circumstances, and where such results are to follow, would it be proper for a court of equity to decree a specific performance of the contract ? The decree would impose upon the Burlington road a large expenditure of money and a heavy burden, and would be a detriment to the public interest, and it is condemned under the ruling in the Schoeneman case, supra. The decree would also produce hardship and injustice to one of the parties, and can not be sustained under the ruling in Willard v. Taylor, supra. Nor will the denial of relief in equity operate detrimental to the rights of appellees. If they have been damaged by a breach of the contract, they have an ample remedy at law, in an appropriate action. Nor will the denial of the relief prayed for in the bill destroy the business of appellees, or destroy the use of the property as a coal yard. The record shows that the Burlington road has laid tracks immediately adjoining, appellees’ property, which tracks are used by the company, and connect with its main line, and the main line connects with all the roads leading into the city. Section' 5, article 13, of our constitution, requires that “all railroad companies shall permit connections to be made with their track, so that any such consignee, and any public warehouse, coal bank or coal yard, may be reached by the cars on said railroad.” Under this provision, appellees’ property, as a coal yard, may, if they so desire', have switch connection with the Burlington road, and being so connected, they will also have connection with all other roads in the city. Indeed, in the answer the Burlington road sets up that its tracks connect with the Fort Wayne and Alton roads, and all other lines in the city, and offers to connect its line of road with the premises of appellees.

After a careful consideration of all the evidence in the record, we are satisfied that the decree of the Superior Court is not right. The judgment of the Appellate Court will therefore be reversed, and the cause remanded.

Judgment reversed.

Scholfield, Ch. J., and Mulkey, J., dissenting.

Mr. Justice Dickey : I do not hold that complainants are not entitled to any relief. I think they ought to have a decree compelling the restoration of the tracks, unless the Chicago, Burlington and Quincy Railroad Company shall at once proceed to condemn their rights under the contract. The right of complainants to the easement in the land granted is property. The Chicago, Burlington and Quincy Railroad Company ought not to be allowed to take from complainants that right, without compensation. In case that company shall proceed, without delay, to have these rights condemned, no specific performance should be decreed. Reasonable time should be given for that purpose. Should that company fail to thus acquire the exclusive right o'f way, then I think complainants ought to have a decree for specific performance.


author: Mr. Justice Scott

text:
    Thomas R. Reeve et al. v. W. H. Smith et al.

      Filed at Mt. Vernon

      January 22, 1885.

    1. By section 3Y of the Attachment act, all judgments’in attachment against the same defendant returnable at the same term, and all judgments against such defendant recovered at the same term or at the term where judgment in the first attachment is rendered, shall share pro rata in the proceeds of the property attached, either in the hands of the garnishee or otherwise. Under this section there is no difference between property attached and funds, in the hands of a garnishee. It is the whole fund or property attached, and not any specific part or portion, that is held until it shall be ascertained who or what creditors are entitled to share in the proceeds.
    2. Same—rights of an assignee of a debt intervening two attachments. After a debtor to a defendant in attachment had been garnisheed by a creditor of the defendant, the latter transferred and assigned his claim or demand to another creditor, and notice of the transfer was given to the debtor, when a second creditor in attachment against the same defendant garnisheed the same debtor, and both suits proceeded to judgment at the same term. The funds in the hands of the garnishee were not sufficient to satisfy the two judgments, and the court ordered the same to be apportioned between the two judgment creditors to the exclusion of the assignee of the debt owing by the garnishee: Held, that the court decided in accordance with the law.
    3. Assignment—of chose in action—extent of assignee’s rights. A chose in action is not assignable, either at common law or under our statute, so as to vest the legal title in the assignee. Such assignee will take the same subject to all defences that existed against the assignor. He stands in the shoes of his assignor, and can claim no greater rights in the demand assigned than could his assignor.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the City Court of East St. Louis; the Hon. W. P. Lountz, Judge, presiding.
    Mr. R. A. Halbebt, for the appellants:
    The service of process of garnishment must create a qualified lien, or have the effect of a modified appropriation of the indebtedness by the law to the objects and purposes of the attachment, that is binding alike on the defendant, the garnishee and third parties,—otherwise the garnishment might always be rendered nugatory by the payment or assignment of the debt.
    Choses in action are not assignable at law, but only in equity, and yet the courts of law will ordinarily regard the ' equitable rights of the assignee. After the service the power of the defendant to dispose of his debt remains, but the transfer will be subject to the creditor’s liens.
    Where a prior lien is given to the first attachment levied in preferment of process served on a garnishee, it takes effect in favor of the attaching creditor, and the defendant may sell and dispose of the property or debt, subject only to the claim of the attaching creditor. But in this State the first attachment or garnishment does not hold the property or debt to the exclusion of all subsequent attachments, but for the benefit, not only of all judgments in attachment against the same defendant that are returnable to the same term, but of all judgments against said defendant recovered at that term, and all such judgments must share pro rata.

    Messrs. Flannegan & Canby, for the appellees Smith & Co.:
    Under section 37 of the Attachment act, all attaching creditors are entitled to participate in the proceeds that may be realized for the attachment, pro rata, when the attachments are all made returnable to the same term of court and levied on the same estate. Mechanics’ Savings Inst. of St. Louis v. Givens, 82 Ill. 157; Warren v. Iscarian Community, 16 id. 114; McCoy v. Schnelbaker, 2 Bradw. 582; Stahl v. Webster, 11 Ill. 511.
    The right of attaching and judgment creditors to share in the proceeds of attached property, pro rata, when their judgments are all recovered at the same term of court, is not limited by the statute to the amount of the first attaching creditor’s claim, but it extends to “the proceeds of the property attached, ” which means the whole property. The levy of an attachment creates a lien upon the property, which nothing subsequent can destroy but the dissolution of the attachment. And as to the defendant, though his general power of alienation, subject to the attachment, is not impaired, yet no subsequent act of that description on his part can defeat the lien of the attachment. Drake on Attachment, sec. 224; Martin v. Dry den, 1 Gilm. 213; People v. Cameron, 2 id. 471; Barnett v. Robertson, 5 id. 282.
    “The chief object of this chapter,” say the Supreme Court, in speaking of the Attachment act, “is, in certain specified cases, to place the estate of the debtor under the immediate control of the law, and subject it to the payment of his debts. ” People v. Cameron, 2 Gilm. 471.
    The general and well settled rule is, that an assignee of a chose in action holds subject to all equities, burdens and infirmities, which existed at the time against the assignor. McKinney v. Alvis, 14 Ill. 33; Olds v. Cummings, 31 id. 188; Fortier v. Darst, id. 212.
    The assignee of a chose in action acquires the rights, neither more nor less, of the assignor, and stands in his position. The assignor can transfer no better right than he possessed. Jack v. Davis, 29 Ga. 219; Thompson v. Allen, 12 Ind. 539; Bush v. Lathrop, 22 N. Y. 535; Gray v. Thomas, 18 La. Ann. 412.
   Mr. Justice Scott

delivered the opinion of the Court:

There is no controversy as to the facts of this'case. On the 16tli day of October, 1882, Berthold & Jennings commenced a suit by attachment, in the City Court of East St. Louis, against the Clinton Bridge Company, a non-resident corporation, and summoned the Chicago and Alton Railroad Company as garnishee. Afterwards, on the 4th day of December, 1882, the firm of W. H. Smith & Co. also commenced a suit in attachment in the same court, against the bridge company, and had process served on the Chicago and Alton Railroad Company, as garnishee, as -was' done in the first suit commenced. Both suits proceeded to judgment against the attachment debtor at the January term, 1SS3, of the City Court of East St. Louis. Intervening the two attachment suits,— that is, on the 1st day of December, 1882,—the Clinton Bridge Company, .in good faith, and in part payment of its indebtedness to the firm of Reeve & Son, assigned to them its claim against the Chicago and-Alton Railroad Company, (being the same indebtedness now involved,) and on the same day notified the railroad company of such assignment. Of the good faith of the assignment to the interpleading creditors, and that it was made to secure a bona fide indebtedness, no question is made.

It does not appear there is enough of the fund in the hands of the garnishee to satisfy and discharge in full the demands of the respective claimants, and the only question made is, whether the second attachment creditors, whose suit was commenced after the assignment of the attached fund to the interpleading creditors, are entitled to a pro rata share of the attached fund with the first attachment creditors, or whether the balance, after paying the first attachment creditors, as is conceded must be done, shall go to the interpleading creditors. By the decision of the City Court, which was after-wards affirmed in the Appellate Court, the fund in the hands of the garnishee was ratably divided between the attachment creditors whose judgments against the common debtor were rendered at the same term of court, and as there was not enough of the fund to discharge in full their respective claims, the interpleading creditors were refused any share of the attached fund. That decision, it is thought, is warranted by a fair construction of the 37th section of the Attachment act,—Rev. Stat. 1874, p. 152. In that section it is provided: “All judgments in attachments against the same defendant, returnable at the same term, and all judgments in suits by summons, capias or attachment against such defendant,'recovered • at that term or at the term when the judgment in the first attachment upon which judgment shall be recovered is rendered, shall share pro rata,, according to the amount of the several judgments, in the proceeds of the property attached, either in the hands of a garnishee, or otherwise. ” It will be perceived that property attached, and funds in the hands of a garnishee, are placed on the same footing,—that is, when attached, such property'or funds are appropriated from that time, by law, to the payment of a certain class of creditors. Who constitute the class of creditors whose rights are protected by law? They are specifically enumerated in section 37, and consist of the creditors of the attachment debtor who shall obtain judgments against such debtor within the time and in the manner specified in that section of the statute. It is the whole property or funds attached, and not any specific part or portion, that is held, until it shall be ascertained who or what creditors are entitled to share in the distribution to be made. Creditors who do not choose to put their claims in judgment, by attachment or otherwise, within the time limited by the statute, are not permitted to share in the proceeds of the property or funds attached,—certainly not until all attachment or judgment creditors have been paid. Keeping this construction of the statute in mind, the case being considered presents no difficulty. The interpleading creditors never attempted to put their claim against the attachment debtor in judgment, and hence their equities, under the assignment to them of the funds attached, must be held to be postponed to the rights of creditors who have conformed to the statute, and put their claims in judgment. Had they put their claim in judgment with the attachment creditors at the same term of court, as was their privilege to do, they would have been permitted to share pro rata with them in the funds attached. Failing to do s'o, they are cut off from any participation in such fund until after attachment or judgment creditors are first paid. The statute that secures equality among the creditors of the common debtor, is a wise and just one. Creditors of the attachment debtor ought not to be permitted to obtain-an inequitable advantage over other creditors in a fund appropriated by law for a specific purpose, by taking an assignment of it before the time shall have arrived for distribution. That would contravene the positive provisions of the statute, which will not be sanctioned. It is familiar law that a chose in action is not assignable either at common law or under the statute of this State, so as to vest the legal title in the assignee. Such assignee will take the same subject to all defences that existed against the assignor. In this case the interpleading creditors stand in the shoes of the bridge company, and can, of course, assert no rights in or to the funds attached other than the bridge company itself could do. The statute has fixed the mode by which the creditors of the attachment debtor may share in the ju’oceeds of the property levied upon or in the funds garnisheed, and parties will not be permitted to defeat its provisions in that respect by taking to themselves an assignment of such property or funds, or by any other method that might he adopted. Its provisions in that regard will be recognized as controlling.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    George W. Bowen et al. v. Robert E. Allen.

      Filed at Mt. Vernon

      January 22, 1885.

    1. Former adjudication—as to the conelusiveness of prohale of will. The judgment of the circuit court, on appeal, admitting a will to probate, and ordering a description which had been altered to be restored to the original number, until reversed or otherwise impeached, or set aside in a direct proceeding, is conclusive on all persons and in'all courts. Such probate is conclusive of the validity of the will, and of any question of fraud, until reversed or otherwise legally vacated. So if the testatrix married after publishing her will, its probate after her death is conclusive that the marriage did not revoke the same.
    . 2. Description of land in a will or deed—rejecting contradictory or useless words. Where, from the entire description of land in a deed or will, there is ambiguity and doubt as to the identity of the property, the courts hold that any contradictory or useless portion of the description may be disregarded, so as to render the description certain and complete.

      3. Same—when a general description will prevail over a more specific one. If the property devised in a will he described as the testator’s house and lot in the town of P., Illinois, it will be sufficient upon showing that the testator in fact had a house and lot in such town; but when the will goes further, and gives a more specific description, as, “known and described as follows: the north two-thirds part of lot No. 19, block No. 10,. railroad addition to the town of P., Illinois, ” if the testator had a house and lot on block 19 it will pass, and the more specific description must control. If, however, it is shown that the testator never owned any house, or part of lot, on lot 19, but did own the north two-thirds of lot 12, in the same block, upon which there was a house, and owned no other house and lot in the town, then the general description will prevail, and the more specific one will be rejected. But in the absence of proof that the testator, at the time of making the will, had no title to any part of lot 19, it could not be inferred he had none, so as to allow the devise to operate upon lot 12. A stipulation that the north two-thirds of lot 12, etc., was all the real estate the testator ojvned in the town of P. at his death, is not sufficient to show that he may not have owned the north two-thirds of lot 19 when he made his will.
    4. Parol evidence—to explain or vary a will—or to identify the subject of the devise. Extrinsic evidence can not be heard to alter, detract from, or add anything to the provisions of a will. But in case of a latent ambiguity, parol evidence is admissible for the purpose of identifying the property intended to be devised.
    Appeal from the Circuit Court of Marion county; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Casey & Dwight, for the appellants:
    There is no evidence in the case, nor is there anything in the “stipulations,” showing that lot 12, in block 10, in railroad addition to Patoka, was all the lot or property owned by Ann Quinn in that town at the date of the will. The stipulation is, “and that said above described property was all the property she owned in the said town of' Patoka at the time of her death, and that she was also the owner of said property at the time of making said will. ”
    The marriage of the testatrix afterward, operated to revoke the will. Rev. Stat. 1874, p. 419, sec-. 10; Duryea v. Duryea, 85 Ill. 41; Act of April 1, 1872, entitled “An act in regard to the administration- of estates.”

      The will having been revoked, plaintiff below had no title, and the judgment should be reversed. Board of Foreign Missions v. Nelson, 72 Ill. 564.
    Mr. Henry G. Goodnow, for the appellee:
    At the time the will was made there was no law in force that made a subsequent marriage revoke a will. The statute is not retroactive, and therefore does not affect the rights of appellee given him by the will at the time it was made, and hence does not revoke the will.
    Again, appellants were parties to the probate of the -will in the circuit court, they having appealed to that court, and are bound by such probate, the same being a judicial proceeding, and is res judicata. The principle of res judicata embraces not only what has actually been determined in a former ease, but also extends to any other matter properly involved, and which might have been raised and determined in it. Rogers v. Higgins, 57 Ill. 244; Lathrop v. Hays, id. 279; Briscoe v. Lloyd, 64 id. 33.
   Mr. Justice Walker

delivered the opinion of the Court:

Robert E. Allen, appellee, brought an action of ejectment against George W. Bowen and Nancy Hall, appellants, to recover the north two-thirds of lot 12, block 10, railroad addition to the town of Patoka, Illinois. The general issue and other pleas were filed, and issue joined. A jury was waived, and a trial had by the court, by consent of the parties. The court found the issues for the plaintiff, and rendered a judgment of recovery in his favor, and defendants appeal, and urge a reversal.

On the trial, plaintiff introduced and read in evidence the last will and testament of Ann Quinn, made and published on the 14th day of January, 1870, and filed in the county court of Marion county on the 18th day of July, 1881. The provision of the will relied on by plaintiff as establishing his title, reads:

“First—I give and bequeath to my grandson, Robert E. Allen, of Clinton, Indiana, my house and lot in the town of Patoka, Illinois, known and described as follows: The north two-thirds part of lot No. 12, block No. 10, railroad addition to the town of Patoka, Illinois. ”

Testatrix died in the year 1876. No will having been produced and probated after her death, about the 12th of May, 1881, two of her heirs, a daughter and the only child of another daughter, deceased, sold and conveyed their interest in the property .to defendant Nancy Hall, who took and still holds possession of the premises under that conveyance. Testatrix, after making -the will, intermarried with one Pearson, on the 18th day of October, 1872, who died previous to her death, leaving her a widow. The property described in this clause of the will was all the real estate she owned in the town of Patoka at the time of her death, and she owned it at the time of making the will. These facts are admitted by stipulation by the parties. On the 18th day of July, 1881, on proof, the probate court of Marion county admitted the will to probate. Contestants appealed the case to the circuit court of Marion county, where the probate by the county court was affirmed, except it was found, in the clause in reference to this land, that the lot was first described as lot 19, but had been altered to read “lot 12, ” and it was ordered that it should stand and be read as lot 19.

It is urged that the circuit court erred in admitting the will in evidence. It is claimed that withholding the will from probate for more than five years after the death of testatrix, and until a portion of her heirs had sold their interest in the premises, was a fraud on the purchasers. In this action we can not consider such questions. Whether or not such considerations were proper on the contest of the probate of the will it is unnecessary to consider in this case, as the will has been probated; and established as legal and binding by the judgment of the circuit court. That judgment must be held binding in all places and times, when attacked collaterally. It can be attacked only by a direct proceeding. It would be useless to admit a will to probate if it might be assailed, and those claiming under the will required to prove its execution and to establish its validity in all collateral proceedings. The probate of the will is conclusive of its validity, and of the question of fraud, until reversed or otherwise legally vacated.

It is also urged that the marriage of testatrix after its execution, revoked the will. This, like the other question, is concluded by the judgment of the circuit court establishing and admitting the will to probate. This was a question to be considered in that case, and no doubt was. The question there tried was, whether it was the will of testatrix, and after hearing the evidence, on the trial, it was found that it was, and that finding must stand until the judgment is reversed or otherwise annulled by some regular proceeding had for the purpose. As long as it stands unreversed and unimpeached, it imports verity in all collateral proceedings. We must therefore receive and act upon it as the last will of testatrix. We have no power, in this proceeding, to review the judgment of the circuit court, and it is conclusive of this question.

The will, as it was probated and corrected, describes the lot as No. 19, and the recovery is for lot 12. The stipulation admits that testatrix, at the time she published the will, owned this property and lot 12, and that she owned no other property in the town of Patoka at the time of her death. When there is, from the entire description, ambiguity and doubt as to the identity of the property, courts have uniformly held that any contradictory or useless portion of the description may be disregarded, so as to render the description certain and complete. Usually, if not uniformly, the conveyance first designates the property by a general description as to the county,.State and township in which it is located, and generally this is followed by a particular description, in States where there are government surveys, by the section, and the particular portion of the section, or by metes and bounds of a portion of the section. Or the description may be general, as, the house or residence of the grantor in a designated county, city or village, or a particular addition thereto. In this case we find the premises described as “my house and lot in the town of Patoka, Illinois.” Had this general description been all, no one would have doubted the sufficiency of the description. On finding a house and lot belonging to testatrix in that town, no one would have questioned that they were the property devised. Such a description, although general, has always been held sufficient. But this goes further, and gives a more particular, minute and detailed description. It adds to the general description: “Known and described as follows : The north two-thirds part of lot No. 19, block No. 10, railroad addition to the town of Patoka, Illinois.” There is no pretence that the lot in controversy does not fill every description of this lot, general and specific, except the lot in dispute is lot 12, and the will describes a house and part of lot 19. In the absence of evidence whether testatrix owned a house on lot 19, or not, when the will was published, which number shall we adopt as the lot intended to be devised? It is admitted she owned this property when she executed the will, and that she owned no other real property in the town at the time of her death. In the absence of proof, shall we presume that testatrix owned any other property than that admitted in the stipulation to have belonged to her, both at the time she published her will and at her death ? That admission does not negative the fact that she did not own two-thirds of lot 19. She, in the devise, says she owns the north two-thirds of lot 19, and there is no evidence proving that she did .not, or to warrant a rejection of the number of the lot as repugnant to the other portion of the specific as well as the general description. As probated, “No. 12” was stricken out, and “No. 19” was restored, as -the will was first written, and we must receive and act on the will as it is probated. We have no power to adopt “No. 12” instead of “No. 19,” in the absence of all evidence. We are precluded from inferring that she had no title or claim to the north two-thirds of the latter named lot. We must therefore follow the description of the will, in the absence of evidence.

It is a rule of law that has never been departed from in this court, that extrinsic evidence can not be heard to alter, detract from or add anything to the provisions of a will. [Kurtz v. Hibner, 55 Ill. 514.) But this case is not like that. There the land'was situated, as described in the will, in one section, and it was proposed to prove that it was in fact in a different section. There the naming of the section was essential and controlling, because no other controlling description was adopted. Had it described the property as his farm in the township, and he had held no other in the township, then a different result would have been reached, because there would have been a sufficient description to manifest the testator’s intention, after the description' by the section had been rejected. Had the section not been named, or had it been rejected in that-case, there would have been nothing to point out or indicate the precise land intended to be devised. But in this case, reject all reference to the lot on which the house was situated, and still the description is complete and amply sufficient to manifest the intention of the testatrix, and to identify the premises devised. Her house and lot are the subjects of the devise, and Robert E. Allen is named as the devisee. But it is necessary, to effectuate that clear intention, that we shall ascertain the particular house she intended to devise. She, for the purpose of designating it with more certainty, says it is in the town of Patoka, and in the railroad addition to the town. If the proof shall show that she, at the time of making her will, had no other house in that addition to the town, then the house in controversy is identified as the house devised. If, however, it should appear that she had a house on the north two-thirds of lot 19, then that house and the two-thirds of the lot are the property devised. We have discussed this question because the case will have to be presented again for another trial, when this question will no doubt be presented for decision.

The judgment of the court below is reversed, and the cause remanded.

r , , , Judgment reversed.


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    Henry Blanck v. Edward Pausch.

      Filed at Mt.Vernon

      January 22, 1885.

    1. Contested election—requisites of petition—as to qualifications of petitioner—for a town office. A petition for the contest of an election by one to the office of town clerk, or other town office, should aver that the petitioner was an elector of the town, or it will be fatally defective on demurrer. An averment that the contestant was a citizen and resident of the town is not sufficient.
    2. Citizenship—defined—whether it includes the right to vote. A citizen, in the popular and appropriate sense of the term, is one who by birth, naturalization, or Otherwise, is a member of an independent political society, called a State, kingdom or empire, and who, as such, is subject to its laws and entitled to its protection in all his rights incident to that relation. The term includes females and minors. The right of suffrage is not coextensive with the right of citizenship.
    3. Pleading—rule of construction. It is a familiar rule that all pleadings are to be construed most strongly against the pleader.
    Appeal from the County Court of St. Clair county; the Hon. William J. Underwood, Judge, presiding.
    This was a proceeding commenced in the county court of St. Clair county, by Edward Pausch, the appellee, to contest the election of Henry Blanck, the appellant, to the office of town clerk of the town of Lebanon, in said county. The court overruled a general demurrer to the petition, and the defendant declining to answer further, the petitioner was thereupon adjudged to be duly elected to said office, and entitled to the possession thereof, and an order to that effect was duly entered in the cause, to reverse which this appeal is brought.
    The petition to which the demurrer was sustained, is as follows:
    “Petitioner, Edward Pausch, a citizen and resident of the town of Lebanon, in said St. Glair county, represents that at the general election held in November, 1883, the electors of said county voted to adopt township organization; that the commissioners appointed to divide said county into towns, established the town of Lebanon, including the incorporated limits of the city of Lebanon and of the village of Summer-field, and territory adjacent; that said county board gave fiotice of an election to be held in the town of Lebanon, April 1, 1884, for the election of town officers, and on March 5, 1884, said board established the village hall in Summerfield as the first and only voting place in the town of Lebanon, and appointed three electors of said town to act as judges- at said voting place; that at said election held in the town of Lebanon, at said Summerfield, petitioner received all the votes of the electors of said town for the office of town clerk of said town, except a few scattering votes, and was declared by said judges and clerks of said election duly and legally elected to the office of town clerk of the town of Lebanon; that on the 3d day of April, 1884, petitioner took the oath of office, and on the 8th day of April, 1884, demanded from John Weigel, the acting town clerk at said election, the books and proceedings pertaining to said office, but said Weigel refused and still refuses to deliver the same to petitioner; that one Henry Blanck claims to have been elected town clerk of the town of Lebanon, at said election, by reason of the votes cast for said Blanck at a place in the city of Lebanon, but that said county board had established no voting place and appointed no judges and clerks for any place in the city of Lebanon at said election; that the votes cast at said place in the city of Lebanon for said Blanck are illegal and void; that notwithstanding the votes cast for said Blanck are illegal and void, said Blanck has entered upon the duties of said office, and is unlawfully exercising the same. Petitioner prays that he may be declared and adjudged to be lawfully elected clerk of said town, and duly installed in said office, and said Blanck ousted therefrom. ”
    The court below overruled a demurrer to the petition, and the defendant refusing to answer further, final judgment of ouster was thereupon entered in favor of the petitioner, and against the defendant, to reverse which this appeal is brought.
    Messrs. Schaefer & Snyder, for the appellant:
    Section 112, chapter 46, gives any elector of his township or precinct the right • to contest the election of another to a town office. Talkington v. Turner, 71 Ill. 234.
    A plaintiff in a bill must have an interest in the subject. If he has not, a demurrer will hold. Story’s Eq. PI. sec. 260.
    The petitioner here simply sets forth that he is a citizen and resident of the town of Lebanon. Admitting all this, it does not give him a standing in court as a contestant of this election. An elector is one who has the right to make choice of public officers—one who has a right to vote. 10 Minn. 107.
    It has been decided in 21 Wall. 162, and 43 Cal. 43, that “the right to vote and the right to hold office are not necessary constituents of citizenship.” So one being a citizen and resident does not necessarily imply that he is an elector, and as it is a rule of law that pleadings must always be construed strongest against the pleader, the court must presume that the petitioner is not of age, and is not an elector of the town of Lebanon, and therefore the petition is insufficient.

      Messrs. Wilderman & Hamill, for the appellee:
    Section 113 of the Election law declares that a person desiring to contest an election shall, within thirty days, etc., file with the clerk of the court a statement in writing, setting forth the points on which the contest will be made, etc. The statute does not specify what this statement shall contain, except the points of contest.
    The petition shows that petitioner is a citizen and resident of the town, and this is equivalent to stating he is an elector. “Citizen,” as used in the constitution, means an elector. (Const. 1870, art. 4, sec. 3; art. 5, sec. 5; art. 6, secs. 3,17.) “Citizen,” according to Webster, is “a person, native or naturalized, who has the privilege of voting for public officers, and who is qualified to fill offices in the gift of the people.” Stating that petitioner was a citizen of the town of Lebanon, in the county of St. Clair, and State of Illinois, was equivalent to stating that he had resided -in the State one year, in the county ninety days, and in the election district thirty days next preceding the election, and that he was a qualified elector of this State, or a male citizen of the United States above the age of twenty-one years. The term “citizen” means all of that, and more. If petitioner did not have all of those qualifications, he was not a citizen in the sense in which the word is used in the petition. , Spraggins v. Houghton, 2 Scam. 377; Rev. Stat. sec. 66, chap.46; Dale v. Irwin, 78 Ill. 181; Frey’s Election Cases, 71 Pa. St. 302; Union Hotel Co. v. Hersee, 79 N. T. '454.
   Mr. Justice Mulkey

delivered the opinion of the Court:

By the 112th section of chapter 46, of the Revised Statutes of 1874, the right to contest an election of this kind is confined exclusively to electors of the town. In order to show title in himself, the petitioner should therefore have averred in the petition that he was an elector of the town of Lebanon. Whether he has done this or not, presents the only question of importance for determination. That the petition contains no express averment to that effect is manifest. But it is contended on behalf of the petitioner that the averment in the petition that the contestant was “a citizen and resident of the town of Lebanon,” is, in legal effect, the same as the more specific charge that he was an “elector.” We can not concur in this view. It may be admitted the word “citizen” is sometimes used to denote a person having the right to vote and hold office, but that is certainly not its ordinary or popular meaning. In the latter sense of the term it is applicable alike to males and females, and to minors as well as adults. Such being the case, it is clear the right of suffrage is not coextensive with the right of citizenship, and this is expressly held in Minor v. Happersett, 21 Wall. 162.

A “citizen,” in the popular and appropriate sense of the term, is one who by birth, naturalization, or otherwise, is a member of an independent political society, called a State, kingdom or empire, and as such is subject to its laws and entitled to its protection in all his rights incident to that relation. And as the right to vote, as we have just seen, is not necessarily incident to or coextensive with the right of citizenship, it follows the petitioner failed to show any right in himself to contest the respondent’s election, and for that reason the petition was fatally defective, and the demurrer to it should have been sustained. To hold otherwise would be to simply abrogate the familiar rule of pleading that requires all pleadings to be construed most strongly against the pleader. This we are not prepared to do.

The judgment of the court below is reversed, and the cause remanded for further proceedings, with directions to set aside the order overruling the demurrer and to sustain the demurrer to the petition, and that leave be given to amend the petition if the petitioner shall be so advised.

Judgment reversed.