author: Mr. Justice Scott Mr. Justice Walkeb:

text:
    John Scanlan v. Samuel L. Keith.

      Filed at Ottawa May 12, 1882.

    1. Contbact—of the parties thereto—whether the obligation of a corporation, or the individual obligation of the officer executing the same— estoppel. Where a person, in his dealings with a corporation, has accepted a promissory note for money due him from the corporation, and subsequently, in a suit upon the note, against the corporation as such, recovers judgment, he ought to he forever thereafter estopped to assert that the note was the individual obligation of the officer executing it on behalf of the corporation.
    2. Same—admissibility of extrinsic evidence to show who ought to be bound. A party will not be permitted to show by oral testimony that his written agreement, understandingly entered into, was not in fact to be binding on him. So it has been held, where trustees of a church corporation made a note in their individual names, although they described themselves as trustees of the church, parol evidence was inadmissible to show it was the intention of the parties that it was to be the note of the church corporation, and not that of the trustees executing it;—the principle being that such instruments will be construed as the parties made them, without the aid of extrinsic evidence.
    3. But there is another principle:—that where a person signs his name as cashier or agent for a banking, railroad or other corporation, in drawing drafts and bills, or in accepting drafts or other evidences of indebtedness, in its ordinary business, if it appears, or is made to appear, it is the obligation of the company, and ,the cashier or agent or other officer had authority to hind the corporation, he is not personally liable, and the facts,—collateral though they may sometimes he,—may be shown by extrinsic evidence, in order that it may appear whose obligation it is.
    4. In this case, assumpsit was brought upon a promissory note, against A B, who, it was alleged, made the note jointly with C D. The note sued upon was as follows: “Ninety days after date we promise to pay to the order of” E F, a certain sum of money, at a specified place, and was signed underneath, at the right hand, AB, “Pres’t Chicago Beady Booting Company,” and at the left hand, at the usual place for the signature of an attesting witness, it was signed C D, “Sec’y,” with the seal of the “Chicago Beady Booting Company” attached. The defence was that the note was the obligation of the “Chicago Beady Booting Company,” claimed to be a corporation, and not the individual obligation of the officers who executed the same. It was held to be competent for the defendant to prove that the “ Chicago Beady Booting Company” was a corporation existing under the laws of this State, and the character of the business carried on by it, and other extrinsic facts and circumstances attending the transaction, as tending to show whether the note was that of the corporation, or of the persons whose names were signed to it.
    5. Same-—and herein, as to the sufficiency of the proof. Upon the question as to the proof required in such case to establish the existence of the corporation, its legality not being in issue, it would seem, for the purposes of the defence interposed, it was sufficient to show it was a de facto corporation, actually engaged in the business for the carrying on of which it purported to have been organized, and this was sufficiently proven by the fact that the plaintiff had transacted business with it as a corporation, and in that way recognized its existence.
    6. So taking all the facts appearing,—the existence of the corporation; its engaging in the business for which it purported to have been organized; the dealings of the plaintiff with it as a corporation; the fact the note was for a balance due from the corporation for materials sold to it by the plaintiff; that the signers were the president and secretary of the company, and known to the plaintiff to be such; taking a note executed by the officers of the company, with its corporate seal attached, and finally, suing upon the note as the obligation of the coiporation, and recovering judgment thereon,—they abundantly show the real character of the instrument as that of the corporation, and not of the individuals who signed it.
    7. Same—whether extrinsic proof required at all. But, in determining the question of liability upon this particular note, it was considered as apparent on the face of it that it was executed by the signers in their capacity as officers of the corporation,—their official character or designation, and the corporate,seal being attached,—and no extrinsic facts were necessary to be shown.
    8. Nor need any importance be attached to the use of the words “we” promise to pay, in the body of the note. The word “we” may not improperly be used to denote a corporation aggregate, such as this is, and in the connection in which it is used in this note it may more appropriately be regarded as referring to the corporation rather than the persons, as individuals, who signed the instrument.
    9. Law and fact—as to legal existence of a corporation. Whether a corporation is legally constituted, involves questions of fact and of law. The things done under the statute, in and about the organization, are, of course, facts susceptible of direct proof, but, whether the things, when done, constitute a legal corporation, is a question of law.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

      Mr. M. W. Fuller, for the appellant:
    The proper inquiry is, by whom does the promise purport to be made from the face of the paper ? If the promise purports to be made by or in behalf of the corporation, it alone is bound. Mott v. Hicks, 1 Cow. 515.
    Where there are no words in the note importing an undertaking on the part of the corporation, the signers thereof,' though described as officers of the corporation, will be held liable, and not the corporation. Barker v. Mechanics' Ins. Co. 3 Wend. 94; Hypes v. Griffin, 89 Ill. 134; Trustees, etc. v. Rautenberg, 88 id. 219; Little v. Bailey, 87 id. 239; Burlingame v. Brewster, 79 id. 515; New Market Savings Bank v. Gillet, 100 id. 254; Gillett v. Bank, 7 Bradw. 499; Stobie v. Bills, 62 Ill. 432; Duncan v. Niles, 32 id. 532; Morrell v. Codding, 4 Allen, 403; Packard v. Nye, 2 Metc. 47; Simons v. Heard, 23 Pick. 130; Fisk v. Eldridge, 12 Gray, 474; Haverhill M. F. Ins. Co. v. Newhall, 1 Allen, 130; Seaver v. Coburn, 10 Cush. 324; Barlow v. Cong. Society in Lee, 8 Allen, 460; Williams v. Robbins, 16 Gray, 77; De Witt et al. v. Walton, 5 Seld. 571; Moss v. Livingston, 4 Comst. 208; Hills v. Bannister, 8 Cow. 31; Leach v. Blow, 8 S. & M. 221; Sturdivant v. Hull, 59 Maine, 172.
    Where, upon the face of a note, the signer appears to be personally liable, extrinsic evidence to show it is the note of a corporation, and not that of the signer, is inadmissible, as its effect is to 'change the legal effect of the instrument by parol testimony. Hypes v. Griffin, Admr. 89 Ill. 134; Sturdivant v. Hill, 59 Maine, 172; Andrews v. Estes, 11 id. 270; Hancock v. Fairfield, 30 id. 299; Slawson v. Loring, 5 Allen, 342; Draper v. Mass. Steam Heating Co. id. 338; Barlow v. Cong. Society in Lee, 8 id. 460; T. M. Co. v. Fairbanks, 98 Mass. 105, and cases cited; Savage v. Rix, 9 N. H. 269; Simons v. Heard, 23 Pick. 120.
    If it is contended that this is a ease of principal and agent, and that parol evidence is always admissible to charge an alleged principal, and that it therefore follows it is equally so to discharge the alleged agent, the position is erroneous upon two grounds:
    First—That it does not follow in those cases where parol evidence is admissible to charge an alleged principal, it is therefore admissible to discharge an alleged agent. Higgins v. Senior, 8 M. & W. 834; Huntington v. Knox, 7 Cush. 374; H. M. F. Ins. Co. v. Newhall, 1 Allen, 130; Hypes v. Griffin, 89 Ill. 137.
    Second—That so far as negotiable paper is concerned, parol evidence is not admissible to charge an undisclosed principal, or to discharge the agent. Bank v. Hooper, 5 Gray, 567; Nash v. Town, 5 Wall. 689; Beckham v. Drake, 9 M. & W. 79; Williams v. Robbins, 16 Gray, 77; DeWitt v. Walton, 5 Seld. 573.
    The suit and judgment against the company created no estoppel, nor has the doctrine of “election”' any application. The doctrine of election can be invoked only in cases where the question is material to whom the credit was given.
    The defendant can not say that the note is the note of the ¡Ready ¡Roofing Company, and that concern having no legal existence, he is personally bound. So if an agent acts without authority, or transcends his authority so that the principal can not be held, the act is his own, and he is personally liable. Wheeler v. Reed, 36 Ill. 91; Mott v. Hicks, 1 Cow. 536; Draper v. Massachusetts Steam Heating Co. 5 Allen, 338.
    Messrs. Schüyleb & Follansbee, for the appellee:
    The note is signed by the president, with the name of the company attached to his signature. It is also countersigned by the secretary, as secretary of the company, and he has attached the official seal of the corporation. The evidence shows that this was done as a part of the execution of the note, in the presence of the plaintiff, and before delivery, and the law presumes it to have been an official act, for the benefit of the company. Angell & Ames on Corp. (9th ed.) p. 196, sec. 224; Reed v. Bradley, 17 Ill. 321; Means v. Stromstedt, 32 Ind. 87; Hovey v. McGill, 2 Conn. 680; Story on Prom. Notes, sec. 69; Hood v. Hallenback, 7 Hun, 567; Lindus v. Melrose, 3 Hurl. & N. 176; New Market Savings Bank v. Gillet, 100 Ill. 254. See, also, Gillet v. New Market Savings Bank, 7 Bradw. 499; Melledge v. Boston Iron Co. 5 Cush. 158; Page v. Wright, 14 Allen, 182; Carpenter v. Farnsworth, 106 Mass. 561; Rathborn v. Budlong, 16 Johns. 1; Randall v. Van Vechten, 19 id. 60 ; Chipman v. Foster, 119 Mass. 189; Andrews v. Estes, 2 Fair, 267; Mann v. Chandler, 9 Mass. 335; Barlow v. Cong. Society, 8 Allen, 460; Johnson v. Smith, 21 Conn. 627; Draper v. Massachusetts Steam Heating Co: 5 Allen, 339; Fiske v. Eldridge, 12 Gray, 474; Fuller v. Hooper, 3 id. 334; Waugh v. Suter, 3 Bradw. 274; Abbey v. Chase, 6 Cush. 56; Tripp v. Swazey Co. 13 Pick. 291; Lefts v. York, 4 Cush. 371; Shelton v. Darling, 2 Conn. 435; Magill v. Hinsdale, 6 id. 465; Bank of A. v. Breillat, 6 Moore, 152; Lewis v. Nicholson, 18 Q. B. 503; Green v. Kopke, 18 C. B. 549; Brockway v. Allen, 17 Wend. 40; Drake v. Llewellen, 33 Ala. 106; Lazarus v. Shearer, 2 id. 718; Lee v. M. E. Church, 52 Barb. 116; Stanton v. Camp, 4 id. 274; Blanchard v. Kaull, 44 Cal. 440; Pitman v. Kintee, 5 Blackf. 250; Dow v. Moore, 47 N. H. 419 ; Haskell v. Cornish, 13 Cal. 45; Long v. Coburn, 11 Mass. 97; Keys, Exr. v. Parahan, 6 Har. & J. 418; Hall v. Pierce, 35 Md. 327; Minard v. Mead, 7 Wend. 68; Story on Prom. Notes, sec. 67; Ballou, v. Talbot, 16 Mass. 461.
    The cashier of a bank, indorsing its paper in his own name with the simple appendage of cashier, is not personally liable. Bank of Geneseo v. Patchen Bank, 19 N. Y. 312; Babcock v. Bowman, 11 id. 200; Olcott v. Tioga R. R. Co. 27 id. 546; Hypes v. Griffin, 89 Ill. 138.
    . Where the question is one of the intention of the parties, parol evidence of the circumstances and facts connected with and surrounding the transaction, is always admissible. Parmelee v. Hambleton, 24 Ill. 605; Sanford v. Rawlings, 43 id. 92; Nash v. Town, 5 Wall. 689; Harkens v. Edwards, 1 Iowa, 431; Shire v. Nelson, 9 Cl. & Fin. 559; Barreda et al. v. Sillsbee, 21 How. 161.
    When, therefore, a party attaches any description to his name in the execution of a promissory note, tending to show on whose behalf it was made, the weight of authority is, that it is competent for him to show by evidence aliunde that he was acting for another, and thus relieve himself from liability. Western Union R. R. Co. v. Smith, 75 Ill. 496; Bowells v. Lambert, 54 id. 237; Stookey v. Hughes, 18 id. 55; Mechanics’ Bank v. Bank, 5 Wheat. 326 ; Allen v. Brockway, 17 Wend. 40; Horton v. Garrison, 23 Barb. 176; Haight v. Suhler, 30 id. 218; Winship v. Smith, 61 Me. 118; McClellan v. Reynolds, 40 Mo. 312; Randall v. Van Vechten, 19 Johns. 59; Drake v. Llewellen, 33 Ala. 106; Melledge v. Boston Iron Co. 5 Cush. 158.
    The note was merged in the judgment against the corporation, and can not therefore be set up as a claim against this defendant. Warren v. McNulty, 2 Gilm. 555; Wayman v: Cochrane, 35 Ill. 152; Runnamaker v. Cordray, 54 id. 302; Emery v. Fowler, 29 Maine, 326.
    A person is estopped from denying the existence of a corporation with whom he has had dealings as such. Lombard v. Chicago, 64 Ill. 477; Eppes v. Mississippi River Co. 14 Johns. 238; Angell & Ames on Corp. (9th ed.) sec. 635.
   Mr. Justice Scott

delivered the opinion of the Court:

On the 2d day of August, 1873, John Scanlan commenced this suit against Samuel L. Keith. The action is assumpsit, and originally the declaration contained only the common counts, to which defendant filed the plea of non-assumpsit. Afterwards, on the 5th day of January, 1880, plaintiff, by leave of court, amended his declaration by adding a count on a promissory note, alleged to have been made by defendant jointly with one W. H. Kretzinger. To the additional count defendant pleaded non-assumpsit, verified by affidavit, and also a special plea; but to the special plea a demurrer was sustained, and thereafter nothing seems to have been done in relation to it. On the trial in the Superior Court the issues were found for defendant, and judgment rendered against plaintiff for costs. That judgment was affirmed in the Appellate Court for the First District, and plaintiff brings the case to this court on appeal.

Omitting the signatures and date, the following is a copy of the note in suit: “Ninety days after date we promise to pay to the order of John Scanlan twenty-four hundred and eighty jUq dollars, at the Third National Bank of Chicago, . for value received, with interest at 10 %.” It was signed underneath, at the right hand, “Sam! L. Keith, Pres’t Chicago Beady Boof’g Co.,” and at the left hand, at the usual place for the signature of an attesting witness, it is signed, “W. H. Kretzinger, Sec’y, ” with the seal of the “Chicago Beady Boofing Company” attached. The question made is, whether the note thus signed and executed is the note of Samuel L. Keith, or that of the “Chicago Beady Boofing Company.” In all,cases of notes or bills,,executed as this one is, it is a question of vital importance what was the intention of the parties thereto,—whether it is the individual undertaking of the persons signing it as officers, or whether it is the-note of the corporation. On this subject the plaintiff in this suit certainly had as much knowledge as any one else as to what was the intention of the parties at the time of the execution of the note which is the basis of the action, and the court might be justified in treating it, as the plaintiff himself did, as the note of the “Chicago Beady Boofing Company, ” executed by its officers on behalf of the corporation. This he did by bringing suit on the note at an early day, after it became due, against the corporation, alleging it was the maker of the note, and prosecuting the suit to final judgment. The payee having elected to treat it as the note of the corporation, made through the instrumentality of its officers, by obtaining a judgment against the corporation, it would seem he ought not to be allowed or permitted to obtain another judgment on it against the officers, who were the mere agents acting on behalf of the corporation, as upon a personal undertaking by them. Having obtained a judgment against the corporation on the note, he ought to be concluded by his election, and be forever thereafter estopped to assert it was the individual note of the officers executing it on behalf of the corporation. A case analogous in principle is maintained with great force of reasoning in Melledge v. The Boston Iron Company, 5 Cush. 158.

But it is better the decision should be placed on broader grounds,—on grounds having the sanction of commercial usage, as well as authority. ' The impossible task of reconciling the decisions on this branch of the law will not be attempted, nor would it subserve any good purpose to review any considerable number of the cases in other courts on this subject. They will be found to be as conflicting as the cases are numerous. Much of the contrariety observed in the decisions, both in the American States and in England, no doubt, arises out of the equities of each case, and of an effort on the part of courts to carry out what was supposed to be the intention of the parties executing such notes or bills. Each State in this country has its decisions on this branch of the law, and when a rule has been- once established it is far better for commercial interests it should be adhered to. Beyond the decisions of this court it will not be necessary to go to ascertain principles that will afford a solution of the questions arising in the case now being considered.

Whatever may be the decisions elsewhere on analogous questions, the authorities in this State are full to the point a party will not be permitted to show, by oral testimony, that his written agreement, understandingly entered into, was not in fact to be binding on him. Accordingly, it was held in Hypes v. Griffin, 89 Ill. 134, mainly on the authority of Powers v. Briggs, 79 Ill. 493, that where trustees of a church corporation made a note in their individual names, although they described themselves as trustees of the church, parol evidence was inadmissible to show it was. the intention of the parties it was to be the note of the church corporation, and not the note of the trustees executing it. The principle running through that and other cases in this court is, that such instruments will be construed as the parties made them, without the aid of extrinsic evidence. That rule of interpretation would seem to be as well settled in this State as any rule can be. But there is another principle declared in Hypes v. Griffin, that has more immediate application to the case in hand. It is, that where a party signs his name as cashier or agent for a banking, railroad or other corporation, in drawing drafts and bills, or in accepting drafts or other evidences of indebtedness, in its ordinary business, if it appears, or is made to appear, it is the obligation of the corporation, and the cashier or agent or other officer had authority to bind the corporation, he is not personally liable, and the facts may be shown by extrinsic evidence. Most generally there is that on the face of the instrument itself, and especially where the execution- is witnessed by the seal of the corporation attached thereto, that indicates unmistakably it is the obligation of the corporation. It is seldom any one takes such paper under the belief it is the obligation .of the officers executing it on behalf of the corporation. But parol testimony is admissible to establish the facts, collateral though they may sometimes be, that will make it appear past all doubt whose obligation it is. In this case it was quite proper defendant should prove the “Chicago Beady Boofing Company” was a corporation existing under the laws of this State, and the character of the business transacted by it. Such evidence throws much light on the question at issue. Whether defendant was bound to do more than prove the “Chicago Ready Roofing Company” was a de facto corporation, doing business under the laws of this State, is hy no means certain. The legality of the corporation was not put at issue by the pleadings,, and on principle it would seem it were necessary for the defence interposed, defendant should do no more than prove it was a de facto corporation, actually engaged in the business for which it purports to have been organized. This was sufficiently proven by the fact plaintiff did business with the corporation, and in that way recognized its existence. But if it were necessary defendant should prove it was a corporation legally organized in conformity with the laws of this State, the evidence introduced must be regarded as quite sufficient for that purpose. Whether a corporation is legally constituted, involves questions of fact and law. The things done under the statute in and about the organization of the corporation, are, of course, facts susceptible of direct proof, but whether the things, when done, constitute a legal corporation, is a question of law. Since the trial court found the issues for defendant, it may be assumed it found every fact the evidence tends to prove against plaintiff. An affirmance of the judgment of the trial court by the Appellate-Court implies a finding of the facts the same way, which, under the statute, is conclusive on this court. Assuming, then, as may be rightfully done, that everything the evidence tends to show was done touching the organization of the corporation, it sufficiently appears, as a matter of law, the “Chicago Ready Roofing Company” is a corporation existing under the laws of this Staté.

The powers such a corporation could exercise were distinctly defined by the general law under which it was organized and had its existence. It is apparent, then, the “Chicago Ready Roofing Company” was a corporation transacting business, with power under the law to do whatever pertains legitimately to the business specified in its certificate of organization. It is inconceivable a person familiar with the business transacted by a corporation, taking a note executed by its officers under its corporate seal, should believe he was obtaining the individual note of the officers whose names are attached to it. It needs no extrinsic evidence to show such a note is the obligation of the corporation. Such is the common understanding from what appears on the face of the instrument itself. A most unreasonable conclusion it would be to hold that a secretary of a corporation who attests such an instrument by his signature and the corporate seal, thereby becomes .a joint maker. That is precisely the ease here. 'Kretzinger was secretary of the corporation, and for aught that appears in this record he did nothing more than attest the execution of the note and affix the seal of the corporation. Should that act, by judicial construction, be held to constitute him a joint maker of the instrument to which his name is attached, it would be to make a note for him which the party himself certainly never had the remotest intention of doing. The same reasoning applies with equal force to defendant, who made the note as president of the corporation, in connection with the secretary, using the seal of the corporation. So far as defendant is concerned, the case is precisely within the principle stated in Hypes v. Griffin. It is apparent on the face of the note itself, it was executed by him as an officer of the corporation, and if it were not so apparent, it is admissible to show the attendant facts and circumstances by extrinsic evidence, from which there can not be the slightest doubt it was the obligation of the corporation. As has been seen, plaintiff himself so treated it, and obtained a judgment on it against the corporation. It is shown the note was given for the balance due from the corporation for materials sold to it by plaintiff. Dealing with the corporation and taking a note made by its officers, with its corporate seal attached, it is most improbable plaintiff supposed he was obtaining the individual note of the officers. Had it been so, the note would no doubt have been executed without attaching to the signatures of the makers the name of the corporation. It is still more unusual that persons making an individual note or other obligation would cause it to be attested by the seal of the corporation with which they were connected.

No importance need be attached to the use. of the word “we,” in the body of the note. It was said by this court in The New Market Savings Bank v. Gillet, the word “we” may not improperly be used to denote a corporation aggregate. In the connection it is used in this note it may more appropriately be regarded as referring to the corporation rather than to defendant.

This case is certainly a much stronger one for holding the note in suit to be the obligation of the corporation than the case of The New Market Savings Bank v. Gillet, 100 Ill. 254. In that case the parties making the note used the word “we” in the body of it, as was done in the note in this case, but because it was followed immediately by the name of the corporation of which they were trustees, it was held the word “we” had reference to the corporation, and not to the trustees in their individual capacity. Opposite their signatures was placed the name of the corporation. The conclusion was, it appeared on the face of the note itself it was the obligation of the corporation. More cogent reasons lead to the same conclusion the note in suit was executed officially, and not individually, and the signatures, with the official seal affixed, were placed there as corporate acts, in order to the execution of the note as the obligation of the corporation.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Justice Walkeb:

I am unable to concur in this judgment.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Christopher Mueller v. Frederick Henning

      Filed at Ottawa May 12, 1882.

    Bes judicata—as to finding in decree. Where a decree on a bill to correct a mistake in the description of land in a deed finds that the place at which the survey was commenced was not the correct one, but the survey should have commenced at another point, in an action of ejectment between the parties the question of boundary is res judicata, and the decree conclusive upon them as to its correctness.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Mr. J. V. Le Moyne, for the appellant.
    Mr. Francis Lackner, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This appeal is from a judgment in ejectment, in favor of Henning, and against Mueller.

The facts deemed material to a solution of the question in controversy are: On the 15th of November, 1878, Henning sold and attempted to convey to Mueller a certain ten-acre tract of land. The tract was surveyed at or near the day of sale, and soon thereafter Mueller took possession in accordance with the boundaries defined by the survey. Subsequently, Mueller discovered that there were errors in Henning’s deed of the 15th of November, 1878, in respect of the description of the tract and in respect of his (Mueller’s) name, and on the 11th of November, 1880, he filed, in tlie Superior Court of Cook county, his bill in chancery against Henning to correct such mistakes. Henning answered, admitting such mistakes, but alleging that they Were committed without his fault, and also that, by like mistake, Mueller had taken possession of a strip of ground (presumably that in controversy) which it was not intended to convey to him. On the 27th of April, 1881, the court decreed in accordance with the prayer of the bill, and on the 31st of May, 1881, Henning, by a deed of that date, conveyed to Mueller, as directed by the decree.

This suit is for a small strip of ground included by the survey made at or near the day of sale, but, as we understand the evidence, excluded from the description in the decree and deed pursuant thereto. The survey was made by Wolcott, and he shows that he commenced in the center of a certain road. The decree determines that the survey, instead, should have commenced “on the center line of Victoria Pothier’s reservation, ” etc.

Although admitting of controversy, we are unable to say the court below was clearly unauthorized to hold, from the evidence, that this difference in the point of commencement describes the strip for which judgment was rendered. Wolcott testifies “that the center line of the road and the center line of Pothier’s reservation are the same, ” or nearly so; but Rossiter testifies “there is a bend in the road, as thrown up, which makes the difference; ” and he shows that in running the lines, the fence erected by Mueller is on Henning’s land, and he gives, specifically, the distances. In these respects he is contradicted by no one.

The question of disputed boundary does not arise. Henning was not, in the first instance, asserting the line to be in one place, and Mueller asserting it to be in another. All that the evidence shows is, that when Wolcott made the survey, Henning told him to commence in the center of the road. But the decree settles that was not the correct place to commence, but that the survey must commence on the center line of Victoria Pothier’s reservation, etc. Whether that finding was authorized by the evidence, it is now too late to inquire. The question is res juclieata.

Perceiving no sufficient ground to disturb the judgment below, it is affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Town of Woo-Sung et al. v. The People ex rel. Swett, State’s Attorney.

      Filed at Ottawa May 12, 1882.

    1. Township obganization&emdash;dividing a town&emdash;notice. The notice required to be given before the board of supervisors shall create any new town, or divide or change the boundary of any town, is not required to be given by the county clerk, or to be signed by any one, nor is the board of supervisors required by any statute to give notice of such proposed action.
    2. Same&emdash;whether a vote at an election necessary to dividing town. No consent of a majority of the voters voting at a general election is required before the final action of the board of supervisors dividing a town under the township law, or creating a new town. The statute requiring notice to be given by the county clerk, and requiring an affirmative vote as a condition to dividing a town, applies only where an incoiporated town is proposed to be divided. A town under the township law is not an incorporated town, within the meaning of the proviso in the statute.
    Appeal from the Circuit Court of Ogle county; the Hon. John V. Eustace, Judge, presiding.
    This was an information in the nature of a quo warranto, filed by the relator, as State’s Attorney for the county of Ogle, against the town of Woo-Sung, James T. Wilson, James M. Atley, John G. Annan, Andrew Zollinger, Ellis Osterhundt, James H. Anderson, Charles H. Brown, Amos H. Sanford, John Reynolds, Clinton D. Coe, and Aldro Goodrich, to test the legality of the formation of a new town by the hoard of supervisors, the persons named as defendants with the town being township officers.

      The notice of the proposed action of the county hoard, set up in the answer, is as follows:
    “Public Notice.—Notice is hereby given that petitions will be presented to the county board of the county of Ogle, State of Illinois, at the session thereof to be held at the court house in Oregon, in said Ogle county, on the second Tuesday of September, A. D. 1880, the same being the 14th day of September, A. D. 1880, praying that said county board divide the town of Buffalo, in said county of Ogle, on the following line: Commencing at the north-east corner of section 36,
    town 23, range 8, east of the fourth principal meridian, in said town of Buffalo, and running thence west to the northwest corner of section 31, in said township and range, and that all of the territory north of said line, in said town of Buffalo, remain and be called the town of Buffalo, and that all of the territory south of said line, and now in said town of Buffalo, constitute a new town, .to be called Woo-Sung, and that a final action of said board will be asked on said petition at the time of presentation thereof.
    “Dated this 10th day of July, A. D. 1880.”
    The circuit court sustained a general demurrer to the answer, and rendered judgment of ouster, to reverse which this appeal was taken.
    Messrs. W. & W. D. Barge, and Mr. J. Sears, for the appellants:
    The petition for a division of the town, and notice of the application to the county board, were in exact accordance with the statute. Hurd’s Stat. 1881, p. 1104, art. 3, sec. 26; Fry v. Bidwell, 74 Ill. 381; St. Joseph Manufac. Co. v. Daggett, 84 id. 556; Pearson v. Bradley, 48 id. 250.
    The law does not require the notice to be signed by any one. The petition is the only thing required to be signed. People v. Carpenter, 24 N. Y. 86.

      The provisions of the statute, in reference to giving the notices by publication and by-posting, are directory, merely, and not conditions precedent to giving the board jurisdiction ■ of the subject matter. People v. Carpenter, 24 N. Y. 86.
    Creating a new town, by the board of supervisors, is an act of legislation, and every presumption is in favor of its ■ legality. Any person disputing the existence of a town, must establish its illegality. It is not for the defendants to show the validity of the action of the county board. This is presumed. The People v. Carpenter, 24 N. Y. 92.
    No objection can be sustained to this action of the board, because it has been expressly decided by this court that an order that a separation or division of a town shall not take effect until the next annual election of town officers, is authorized, and is in accordance with the statute. Hensley Township v. People ex rel. 84 Ill. 544.
    Messrs. Hathaway & March, and Mr. J. D. Campbell, for the appellees:
    A division of a town can only be made by the board of supervisors, after giving the prescribed notice. The notice must be given by the board. Clark v. Robinson, 88 Ill. 511.
    The plea of the said appellants does not contain* any averment that the question of creating the said town of Wo.oSung was ever submitted to the legal voters of the town of Buffalo. Such an averment was necessary to make, it a good plea. Rev. Stat. 1874, chap. 139, sec. 26, page 1069; Laws of 1877, page 212; The People ex rel. v. Brayton, 94 Ill. 341.
    Appellants’ counsel claim that the ease of Harris et al. v. Schryock et al. 82 Ill. 116, is conclusive of the question of the necessity of the submission to the vote of the people. That case was decided before the passage of the act of 1877, above referred to. The only proposition in that case was, that courts of equity had no jurisdiction to restrain officers from the exercise of power to hold elections, such power being political, and not judicial.
   Mr. Justice Scott

delivered the opinion of the Court:

The information in this case is in the nature of a quo ivarranto, and charges defendants, without any legal warrant, grant or right whatever, with having usurped, used and exercised the functions of the several offices, respectively, held by them, in the pretended town of Woo-Sung. There is no pretense these several defendants were not legally elected or appointed to the several offices the duties of .which they are charged with exercising, but the charge is, their holding of such offices is unlawful, because the town of Woo-Sung was never legally created by the board of supervisors, and consequently no such offices exist by law. If it shall be ascertained the town of Woo-Sung was legally created or established, no question is made against the right of defendants to hold the several offices, the functions of which they have assumed to exercise.

To the information which charges the town of Woo-Sung Avas not legally created by the board of supervisors, defendants made answer, setting forth with sufficient definiteness all that was done by the board and others concerning the establishing and creating such town. A demurrer was sustained to the answer, and defendants electing to stand by their ansAver, judgment of ouster was pronounced. by the court, and a fine of one cent was imposed on each defendant, together with costs of suit. Defendants bring the case to this court on appeal.

The.sufficiency of the answer is called in question because it does not show, first, that notice of the application for the division of the town of Buffalo was given by the county clerk or by the board of supervisors, or was ordered by the board to be given, before the final action of the board on the • application to have a new town established; and second, that notice was given hy the county clerk that the question of dividing the town of Buffalo would”be submitted to the legal voters of the town, nor that any consent to the division of the town was given by a majority of all the electors voting at a general election prior to the final action of the board dividing the town, or at any other time. Negatively, it is said the organization of the town of Woó-Sung was illegal because the notice that was in fact given was not that which the law requires to be given, before the board could rightfully act in the premises. Mainly upon the determination of these propositions the decision hinges.

Narrowing the discussion to the principal questions raised, the sufficiency of the notice will be first considered. Section 1, article 3, of the act concerning township organization, in force March 4, 1874, confers on the county board of each county full power and jurisdiction to alter the boundaries of towns, to change town lines, and to divide, enlarge and create new towns, to suit the convenience of the inhabitants residing therein; but no new town shall be created, under the provisions of the act, of less territory than seventeen square miles, nor unless there shall' be at least fifty legal voters residing in such new town, nor unless at least twenty of the legal voters of such town shall petition for such alteration; nor shall any new town be made, or any town divided, or the boundaries of any town changed by the county board, without notice 'thereof having been given by posting up notices in not less-than five of the most public places of the town interested, or if several towns are interested, in each of them, at least sixty days before final action of the board, and also by publishing such notice at least three times in some newspaper published in the county where the towns are situated, if any shall be published therein.

It will be noted, the answer shows the new towns, when created, would be composed of a territory, in excess of seventeen square miles, would have the requisite population, and that everything the statute requires to be done to legally create the new town was in fact done, as the parties acting understood the requirements of the statute. The sufficiency of the answer, except in the two particulars first noticed, seems to be conceded. It is said the notice required by the statute to be given before final action on the part of the board, should have been given by the county clerk, or at least the board should have ordered notice to have been given of the presentation of the petition, and of the proposed action. It would seem to be a sufficient answer to the position taken, that the statute has not required notice' to be given in that way. The county ■ clerk is not required by any law to give any notice in such cases, nor has the statute made it the duty of the county board to give any notice of the action proposed to be taken. It is a misapprehension to suppose the case of Clark v. Robinson, 88 Ill. 498, establishes the proposition that the board of supervisors only can create a new town after it has given the notice required by the section of the statute cited. No such question is discussed in that case, and what was said in that case in reference to the notice' required to be given, has no reference to the point now being considered. The notice given in this case was not signed by any one, and that, it is said, is a fatal defect. By whom should it be signed ? Upon this question the statute is silent. It is not made the duty of any one to sign such notice, and unless the statute requires it to be signed by some one, it can not be necessary it should be done. The notice given conforms exactly to the form given by Mr. Haines in his valuable ■work on Township Organization, and is no doubt the form commonly in use throughout the State.

In The People v. Carpenter, 24 N. Y. 86, a statute very much like the one under consideration received a construction. An objection the notice required to be given was not signed by the freeholders whose names were appended to the petition, was held to be untenable, for the obvious reason the statute did not require the notice should be signed by such freeholders. That is precisely the case here, and the usual practice seems to conform to the statute in that particular. It was no valid objection to the notice given in this case it was not signed by any one. It was good without signatures, for the reason the statute has not required any to be attached.

It remains to consider the other objection taken to the sufficiency of the answer. The position taken is, that notice should have been given by the county clerk that the question • of dividing the town of Buffalo would be submitted to the legal voters of the town, and as no consent to the division of the town was given by a majority of all the electors voting at a general election prior to the action of the county board, or at any other time, the action of the board in creating the. town of Woo-Sung was illegal. No warrant for the proposition insisted upon is to be found in any statute of this State. Attention is directed to that clause of section 1, article 3, which provides no “incorporated town” shall be divided except consent thereto is given by a majority of all the electors voting at a general annual election in such town, after notice given by the county clerk such question would be submitted, as sustaining the position taken. A conclusive and most satisfactory answer to this view of the law is, the words “incorporated toivn” have no reference to towns like the town of Buffalo, created under township organization laws. This court has expressly decided in Harris v. Schryock, 82 Ill. 119, the words “said town, ” employed in reference to the election and notice, as used in the proviso to the section cited, must be held to apply to an incorporated town or village. The town of Buffalo is a town under township organization, and not an “incorporated toion, ” in the sense those words are used in the statute, and hence no election was required to be held to give the consent of the electors to the proposed action o'f the board to divide the town. The case of Harris v. Schryock is conclusive of this question, and must control, and it will not be necessary to discuss the point made as a new question in this court. The former construction given to the statute in this particular is correct, and no reason is perceived for departing from it.

The answer of defendants shows the town of Woo-Sung was legally created, and as the offices they assumed to hold existed by law, they may rightfully perform the duties attached to such offices. The demurrer was improperly sustained, and the judgment of the circuit court will he reversed, and thq cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.


author: Mr. Justice Walker

text:
    William T. Johnson, Collector, v. James M. Roberts.

      Filed at Ottawa May 12, 1882.

    1. Demurrer—what it admits—its proper office. A demurrer to a bill in chancery admits the truth of all facts properly j)leaded, but not arguments or legal conclusions stated. Its office is to determine whether the facts as stated constitute grounds for equitable relief.
    2. Chancery—bill to enjoin collection of tax—as to wrongful assessment-pursuit of remedy elsewhere. A bill in chancery to enjoin the collection of taxes on the ground of an illegal or wrongful assessment of personalty, which fails to show an equitable excuse for not seeking relief against the assessment before either the township board of review or the county board, is bad on demurrer.
    3. A bill to enjoin the collection of a personal property tax on the complainant’s engine, boiler, belting, etc., alleged that his personal property at his residence was assessed, and that he paid the tax extended on that, but failed to allege that he made and furnished a list of his personal property, or to claim that he gave in any property at his factory, where the property was as to the assessment of which complaint was made, but sought to avoid the tax on the ground the engine and boiler were a part of the realty owned by Mm, without showing their value was considered in assessing the realty, or that the boiler and engine were twice assessed: Held, that the bill failed to show a case entitling the complainant to the relief sought.
    4. Same—as to tender of the portion of the tax properly levied. A bill seeking to enjoin the collection of a portion of a tax as illegal, is defective, even if it states grounds for relief, where it fails to aver a tender of the amount of the tax admitted to be legal.
    5. Taxation—what is personalty—for purposes of taxation. For the purposes of taxation, steam engines and boilers are required by the statute to be listed and assessed as personal property, and where the assessor assesses such property as personalty, it will be presumed it was not included in the valuation of the realty to which it is attached; and the legislature has the power to make any kind of property personalty for the purposes of taxation, though it is real estate by the common law, and for all other purposes.
    Appeal from the Circuit Court of Cook county; the Hon. William H. Babnum, Judge, presiding.
    Mr. Consideb H. Willett, for the appellant:
    The question is, has the legislature power to provide what property shall be called personal property, and what real, for the purposes of taxation. The demurrer admits that the boilers and steam engines assessed would, as between the owner and his grantee, be real estate, but the admission reaches no further. It does not admit, as a legal conclusion, that the Bevenue law may not classify property at pleasure. The statute has required such property to be returned by the owner in his schedule as personal property. Rev. Stat. chap. 120, see. 25.
    Taxation is an exercise of legislative power, and the legislature may direct the mode of assessing property. Porter v. Railroad Co. 76 Ill. 573; Cooley on Taxation, 33.
    Assessors act judicially in making assessments. Const. .1870, art. 9, sec. 1; Burroughs on Taxation, sec. 102, p. 238; Republic Life Ins. Co. v. Pollock, 75 Ill. 294; Porter v. Railroad Co. 66 id. 594; Ottawa Glass Co. v. McCaleb, 81 id. 502; Railroad Co. v. Siders, 88 id. 327.
    The town board of review alone had power to review the action of the assessor. Spencer v. People, 68 Ill. 510; Repub

      lie Life Ins. Co. v. Pollock, 75 id. 294; Adsit v. Lieb, 76 id. 198; Madison County v. Smith, 95 id. 335; People v. Big Muddy Iron Co. 89 id. 116.
    Mr. Jonas Hutchinson, for the appellee:
    The boiler and engine were assessed as a part of the realty upon which appellee has paid the tax. To pay again on them as personalty is double taxation. Cooley on Taxation, 165.
    The law says a boiler and engine, situate as these are, are a part of the realty. The tax books so declare the law, and this court has frequently so held. Jenney v. Jackson, 6 Bradw. 32; Thulman et al. v. Carr et al. 75 Ill. 385.
    The demurrer admits that the boiler and engine are real estate, and this seems to us to be the end of the case. There is no exception to the rule in favor of the State. The statute was never intended to require real estate to be assessed and taxed as personalty.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill to enjoin the collection of a tax. It alleges that complainant resides in South Chicago; that he made no return to the assessor of that town for the year 1880, but was assessed for personal property at his residence, and paid $21.14 thereon. He alleges that he owns the half of two lots situated in that town, upon which he paid a real estate tax of $808.59, for the year 1880; that he was assessed on personal property, machinery on the lots, $1300, upon which a tax was extended of $78.50; that the machinery did not exceed $200 in value, consisting in belting, pulleys, etc.; that the assessment included the engines and boilers in the building, but they were not worth more than $300; that the engines and boilers -were .permanently attached to and were a part of the realty, and were not personalty; that they were so attached as to constitute a part thereof, so far as the owner of the fee is concerned, and that any real estate tax as aforesaid is as much a tax on the engines and boilers as on the land; that they were improperly assessed as personal property; that personal property did not exist on the lots; that therefore the tax, except on the personal property of the value not to exceed $100, is inequitable, unjust, oppressive and illegal, and prays for an injunction perpetually restraining the collection of all but the tax on $100 of valuation. A demurrer was filed to the bill. On a hearing the demurrer was overruled, and a perpetual injunction decreed to prevent the collection of the tax on the engines and boilers, except taxes on the $100 valuation. An appeal is prosecuted to reverse the decree.

The demurrer admitted all facts properly pleaded, but did not admit arguments or legal conclusions, and its office is to determine whether the facts as stated constitute grounds for granting equitable relief. The bill, even if it otherwise stated grounds for equitable relief, is defective in not averring a tender of the amount of the tax that is admitted to be legal. Again, no equitable excuse is shown for not appearing before the town board of review, under section 86 of the Eevenue law, or to the county board, under the 97th section of the same act. These boards were invested with full power to relieve all persons applying to be relieved from grievances by improper assessment.

But if these objections were waived, does the bill allege facts in other respects sufficient to require the granting of the relief sought ? It alleges that the personal property of appellee was assessed at his residence, and that he paid the tax extended on that. He does not allege or claim that he made and furnished a list of his taxable property to the assessor, nor does he claim that he gave in any personal property at his factory, whether the engine and boilers, or other personalty he admits to havq been subject to taxation as such; nor does the bill allege that the engine and boilers were assessed as a part of the real estate to which they were attached, nor that their value was in any manner considered in fixing the valuation of the real estate; nor does it allege that the engine and boilers were twice assessed, but it is alleged they were permanently attached to the real estate, and were, as to him, a part of the real estate; that the real estate was assessed, and he paid the tax assessed upon it, and draws the conclusion, from these premises, that therefore the engine and boilers were twice assessed, and he had already paid the tax on them. The conclusion does not logically follow from the premises. The 25th section of the Revenue law requires all persons to make out and deliver to the assessor a schedule of his or her personal property required to be listed for taxation. The form of the schedule is given in that section. The sixth item is: “Every steam engine, including boilers, and the value thereof.” For the purposes of taxation these articles are made and required to be listed and valued as personal property, and it is made the duty of the owner to so return, and the assessor to so list and value them; and the assessor having no power to treat or value them as a part of the real estate, and having listed them as personal property, we must'presume he did his duty.

But it is contended that all permanent fixtures become and are a part of the land, and pass with it; that the engine and boilers are such fixtures, and therefore the presumption is they were assessed and valued as a part of it. This is doubtless true at common law, and is true as between grantor and grantee, but for the purposes of taxation the legislature has changed the rule. It is, however, as we understand the argument of counsel, contended the legislature has no power to make such fixtures personal property. It is conceded that the legislature is invested with and may exercise all governmental power, unless restricted by the State constitution, dr the power has been delegated to the general government, or the Federal constitution has prohibited its exercise. No reason is perceived why the General Assembly, if so disposed, may not declare every species of property personal, and subject it to all of the incidents of personalty; or why it may not, for the purposes of taxation, require any portion of real estate, or any of its parts or accessories, to be listed, taxed, and sold for the payment of the taxes thereon, as personal property, and authorize the person purchasing to detach and remove the parts, whether it be standing trees, crops, or even windows or doors of houses or dwellings. The power no doubt exists, and the legislature is the sole judge of the necessity and expediency of its exercise. As appellee has totally failed to show any grounds for relief, the court below erred in overruling the demurrer, but should have sustained it and dismissed the bill.'

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

Decree reversed.


text:
    Warren R. Hickox v. Simon P. Frank et al.

      Filed at Ottawa May 12, 1882.

    1. Administration of estates—domicil of intestate m amother State —jurisdiction to grant letters of administration. Where a person, at the time of his death, has his domicil in another State, the proper court in such State has jurisdiction to grant letters of administration upon his estate.
    2. Same—foreign administrator may collect debts in this State. An administrator of an estate appointed in any other State or territory by a court having jurisdiction, has the legal right, under our statute, to collect notes due to his intestate, and to that end he may foreclose deeds of trust securing them, when no administration is granted on the same estate in this State.
    3. Same—legal title vests in administrator—notes due intestate. Upon the death of a party and the appointment of an administrator, the legal title to all notes and debts due the intestate vests in the administrator, who alone can sue and recover upon the same. The heir at law or his personal representative can maintain no action whatever on such notes.
    Appeal from the Appellate Court for the Second District ;—heard in that court on appeal .from the Circuit Court •of Kankakee county; the Hon. N. J. Pillsbury, Judge, ' presiding.
    Mr. Stephen R. Moore, for the appellant.
    Mr. S. S. Lawrence, and Mr. H. Losing, for the appellee Simon P. Frank.
   Mr. Justice Scholfield

delivered the opinion of the Court:

William H. Connely was the payee and owner of certain promissory notes, secured by deed of trust on real estate in Kankakee county. He died intestate in Pike county, Indiana, in August, 1874, leaving surviving him his daughter, Anna, his only child and sole heir at law. Anna died intestate in the month of January following, in Minnesota. On the 24th of August, 1874, letters of administration were duly granted by the proper court of Pike county, Indiana, to Simon P. Frank, as administrator of the estate of William H. Connely, deceased. No administration was granted upon his estate here, but on the 16th of March, 1877, Warren R. Hickox, as public administrator for Kankakee county, took out letters of administration upon the estate of Anna, and on the 22-d day of that month he filed in the office .of the clerk of the circuit court of Kankakee county his bill in chancery to foreclose the trust deed so given to secure the payment of the before named promissory notes to William H. Connely. The makers of the notes, and Simon P. Frank, as administrator of William H. Connely, deceased, were made defendants. Frank answered, and also filed his cross-bill, in which he alleged the execution of the trust deed, the death of Connely, his appointment as administrator, etc., and his possession, as such," of the notes and deed of trust, and prayed for a decree of foreclosure in his behalf. Answer was filed to the cross-bill. On hearing, the court decreed that the original bill be dismissed, and that the deed of trust be foreclosed as prayed in the cross-bill, and that the proceeds to arise from the foreclosure be brought' into court to await its further order. To reverse that decree this appeal is prosecuted.

There appears, on the hearing, to have been some controversy as to the domicil of Connely at the time of his death, but we think the fair conclusion from the evidence is, it was Pike county, Indiana. He had originally lived there, then in Kankakee county, in this State, and afterwards in Minnesota, but finally returned to Pike county, Indiana, and while making arrangements for future residence upon'a farm he had all the time owned there, sickened and died. It is true, his habits, for some time, had' been migratory, and his return had not been long before his death; but the evidence, we think, sufficiently shows that it was with the mind of remaining,—of making there his future, permanent home. Being domiciled in Pike county, Indiana, at the time of his death, there can be no question, and none is attempted to be raised, of the jurisdiction of the court there to grant letters of administration upon his estate. The death of Connely, and the appointment of Frank as his administrator, gave the latter the legal right, under our statute, to collect the promissory notes, and, to that end, to have the deed of trust foreclosed.

It is provided by -sec. 42, chap. 3, Rev. Stat. 1814: “Where any person has * * * obtained, or may obtain, administration of the estate of an intestate in any State in the United States, or in any territory thereof, such person shall be enabled to prosecute suits to enforce claims of the estate of the deceased, or to sell lands to pay debts, in any court of this State, in the same manner as if letters testamentary or of administration had been granted to him under the provisions of the laws of this State. ”

The limitations of the next section (43) have no application here, because no administration has been obtained upon the estate in this State. Hickox is not administrator of the estate of William H. Connely, deceased, but of his daughter, Anna Connely, deceased, and these notes are assets belonging to the estate of William H. Connely, deceased. Upon his death, and the appointment of an administrator, the legal title vested in the administrator, and the title took effect, by relation, from his death. Makepeace v. Moore, 5 Gilm. 474. So complete was his title that he could pass the legal title to the notes by indorsement. Walker v. Craig, 18 Ill. 116. The heir at law could have maintained no action, in her own right, on these notes. Neubrecht v. Santmeyer et al. 50 Ill. 74. And so, although Anna’s administrator may ultimately become entitled to the money to be collected, it can only be after her father’s estate has been fully administered. Until then, her administrator has nothing to do with the notes or their proceeds.

We perceive no cause to disturb the decree below, and it will be affirmed.

^ 7 Decree affirmed.


author: Mr. Justice Dickey

text:
    Roswell B. Bacon v. William Malzacher.

      Filed at Ottawa May 12, 1882.

      Election—effect of irregularities. Upon the contest of an election, before the county court, it appeared the election officers in one of the precincts had committed some irregularities, for which the board of canvassers had rejected the entire returns from that precinct. There was nothing, however, indicating any unfairness or fraud in the election, and the ballots had all been preserved and returned, and were counted, in the proceeding in the county court, and the result declared accordingly, different from that reached by the board of canvassers. On appeal, this action of the county court was sustained.

      Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Mr. Samuel Appleton, for the appellant:
    The canvassing board rejected the election returns from the fifth and sixth precincts of the Fifth ward. On the contest the envelope returned in the ballot box of the fifth precinct was opened, and the votes for supervisor counted, resulting as follows: For William Malzacher, 14 votes; William Malzbacher, 499 votes; Boswell B, Bacon, 151 votes; R. B. Bacon, 37 votes. The county court ordered that the votes cast for William Malzacher and William Malzbacher should be counted as cast for William Malzacher, which we claim was error.
    The following grounds of objection are urged to the admission of the votes of the sixth precinct of the Fifth ward:
    First—The election was not conducted in an orderly manner, and according to law.
    Second—The election was held in an engine house, and the clerk was absent during forty minutes in the middle of the day, and some persons, not officers, engaged in counting the votes on two different • tables, and some of the ballots were found on the floor. It was also testified to, that the ballots taken during the absence of the clerk were counted; besides, the package of votes was not sufficiently identified.
    Messrs. Hynes, English & Dunne, for the appellee,
    contended from the evidence that the packages of votes objected to were properly identified, and found properly sealed up and in the custody of the proper officers.
    Mere irregularities in conducting an election, not proceeding from any wrongful intent, will not justify the rejection of the entire vote polled. Hodge v. Linn, 100 Ill. 397.
    The rules prescribed by the statute in respect to these particulars are directory merely. Hodge v. Linn, 100 Ill. 397.

      So it has been repeatedly held heretofore, that mere irregularities on the part of the officers, or omission to observe some mere direction of law, will not vitiate an election. Gilliland v. Schuyler, 9 Kansas, 569; Morris v. Van Landingham, 11 id. 269; Pyatt v. People, 29 Ill. 72.
   Mr. Justice Dickey

delivered the opinion of the Court:

At an election held on April 5, 1881, in the town of South Chicago, Bacon and Malzacher were rival candidates for the office of supervisor of that town. The board of canvassers for that town, upon a canvass of the returns, declared as the result of that election in this regard, that Malzacher received 7526 votes for that office, and that Bacon received 8189 votes for the same office. Bacon was declared duly elected. He qualified as such supervisor, and entered upon the duties of the office. Malzacher instituted proceedings under the statute, in due time, in the county court of Cook county, to contest the election, and asking for judgment declaring himself to be duly elected and entitled to the office. In that investigation it was made to appear that the returns from two election precincts had been entirely rejected by the board of canvassers, and that had the votes returned from these precincts been received and canvassed, the result would have shown that Malzacher really received a larger number of votes for that office than did Bacon. On the hearing, the county court ordered the votes returned from these rejected precincts to be counted, and decided the controversy in favor of Malzacher. Bacon appeals to this court.

The evidence produced before the county court is preserved by bill of exceptions, and appellant insists that it shows such irregularities in the proceedings at one of the precincts, that the whole vote of that precinct ought to have been rejected, which would have led to a different result. We have examined and considered this evidence. While it is apparent that the judges and clerks of the election in that precinct did not perform their duties with the care and accuracy required by the law, still the ballots seem all to have been preserved and returned. There is nothing indicating any unfairness or fraud in the election, and upon the whole, we think the decision of the county court was right. It could profit no one >to discuss this evidence in detail.

Believing that the county court arrived at the truth, we hold that the judgment should be affirmed.

Judgment affirmed.


text:
    The Kankakee and Seneca Railroad Company v. George Straut.

      Filed at Ottawa May 12, 1882.

    1. Eminent domain—right to have jury view land after the evidence and arguments. The statute giving the right to have the jury go on the land sought to be condemned, or damaged, in a proceeding for right of way, and examine the same, is imperative, and fixes no time when it shall be allowed, and it is error to refuse a motion to have the jury view the premises, even after the evidence has been closed and the arguments heard, but before the instructions are given.
    2. The right of either party, in-a proceeding to condemn land, to have the jury go upon and examine the premises, may be exercised at any stage of the case before the court gives its instructions, and it is error to deny the exercise of such right.
    Appeal from the County Court of Grundy county; the Hon. Samuel B. Thomas, Judge, presiding.
    Mr, Marshall Key Armstrong, for the appellant:
    The court erred in not allowing the jury to go upon the land when requested by the petitioner. Rev. Stat. 1877, chap. 48, sec. 9; Galena and Southern Wisconsin R. R. Co. v. Haslam et al. 73 Ill. 494.

      The discretion of the court goes only as to the time when the jury shall go and see the land, but not as to whether they shall or not. It could work no injustice for them to view the land after the close of the argument.
    Messrs. Doun & Wing, for the appellee:
    The present statute enables either party to a condemnation proceeding to make the jury’s personal examination evidence in the case. Like any other evidence, the party desiring to avail of it must do so in apt time. The court’s refusal, after the close of the argument, was a matter of discretion not re viewable. Goodrich v. City of Minonk, 62 Ill. 122.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellant filed a petition to condemn the right of way for the location of its road over a portion of appellee’s land. A trial was had, and the jury assessed $400 as the damages appellee would sustain by reason of the construction of the road. A motion for a new trial was entered, but it was overruled by the court and an order of condemnation entered, in pursuance of the statute, and the company appeals and asks a reversal.

In the view we take of the case it becomes necessary to consider but one question discussed. After the evidence was heard and the case was argued, but before the jury were instructed by the court or had retired, appellant moved the court to permit the jury to go upon and view the ground upon which it was proposed to locate the road. The motion was denied, and this ruling of the court is urged as error.

Section 9 of the Eminent Domain act provides, that “said jury shall, at the request of either party, go on the land sought to be taken or damaged, in person, and examine the same, and after hearing the proof offered, make their report in writing, and the same shall be subject to amendment, ” etc. This provision of the statute is peremptory, and leaves no discretion in the court.

But it is insisted that the application was made too late— that having failed to make it before the evidence was heard, the right was waived. Mo time is specified in the statute,— it simply commands that it shall be done when requested. In the case of Galena and Southern Wisconsin R. R. Co. v. Haslam, 73 Ill. 494, we said that while the statute was silent as to the time in the progress of the trial they shall be allowed to go, it is imperative that it shall be allowed when requested. It was also said that we were unable to see that it could matter whether it was before or after the evidence is heard. We can still see no difference. It is a statutory right, and we have no power to deprive a party of it by mere, technical rules. If we could see that it would work any injury to the opposite party to permit it after evidence and arguments were heard, we should hold otherwise; but we perceive none, nor has any been suggested. The jury can understand and apply the evidence and arguments on seeing the premises after as well as before they are heard. We are therefore of opinion that it is in the discretion of the judge to permit the examination at any time before the jury are instructed by the court. Had the right not been absolutely given by the statute, we would probably hold otherwise. For this error the judgment must be reversed, and the cause remanded.

As the evidence ■ is liable to be different on another trial, it is not necessary that we should discuss it in this case, and if it should be, other -instructions will be réquired. It is therefore unnecessary to discuss those in this record.

Judgment reversed.


author: Mr. Justice Sheldon

text:
    Marietta Seager et al. v. Kankakee County et al.

      Filed at Ottawa May 12, 1882.

      1. Injunction—parties—to prevent violation of public duty by officers. "Where a public duty about to be violated by public officers is public in its nature and effects, one not suffering any special injury can not maintain a bill to enjoin the violation, but the remedy must be sought by the public through its proper officer.
    2. Same—to restrain the licensing of a dram-shop. A board of supervisors will not be enjoined from issuing a license to keep a dram-shop in violation of law, on a bill by a private citizen, who will sustain no greater injury than the public generally by the act sought to be prevented. The only remedy in such case is on the application of the proper public officers of the State on behalf of the public.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. Franklin Blades, Judge, presiding.
    Mr. Stephen B. Moore, for the appellants:
    No reason is perceived why a board of supervisors may not be enjoined by a court of equity from doing an illegal act which results in injury to the citizen. It will enjoin the removal of a county seat at the suit of a citizen, when a majority have not voted for the removal. Shaw et al. v. Hill et al. 67 Ill. 455.
    An injunction lies to restrain municipal corporations from adopting ordinances and acts which produce injury to individuals. Gartside v. City of St. Louis, 43 Ill. 47; Smith v. Bangs, 15 id. 400; Central R. R. Co. v. McLean County, 17 id. 291; Chicago, Burlington and Quincy R. R. Co. v. Frary et al. 22 id. 37; Oakley v. Trustees, 6 Paige, 262.
    A court will enjoin a tax levy where the supervisors act illegally. Supervisors, etc. v. Webster, 53 Ill. 141; Sherlock et al. v. Village of Winetka, 59 id. 389.

      A railway corporation will be restrained by an injunction from exceeding its powers, and this is true without regard to whether there is a remedy at law or not. Cobb v. Illinois and St. Louis Railroad and Coal Co. 68 Ill. 233.
    Chancery will restrain a city from taking land to which it has no right. Peoria v. Johnson, 56 Ill. 47; Mohawk and H. R. R. Co. v. Archer, 6 Paige, 83; Belknap v. Beuknop, 2 Johns. Ch. 463; Holdane v. Village of Coldwater, 21 N. Y. 474; Carter v. City of Chicago, 57 Ill. 282.
    Chancery enjoins the supervisors from misapplying the money of a county. Colton v. Hanchett, 13 Ill. 615.
    Chancery will enjoin the opening of a road contrary to law. Commissioner of Highways v. Durham, 43 Ill. 86.
   Mr. Justice Sheldon

delivered the opinion of the Court:

On September 18, 1879, the appellants filed their bill in the circuit court of Kankakee county, setting out that they were tax-payers and residents of Yellowhead township, in said county; that Kankakee county’ is acting under township organization; that one Henry Blank had petitioned the board of supervisors of the county to grant him a license to keep a dram-shop in said Yellowhead township, and that the board were about to issue such license to him without a majority of the legal voters of the township having petitioned therefor; that the public good does not require a dram-shop in the township; that such dram-shop would be a great evil in the community, and increase the tax burden of the people in the township, and the bill prays that the board of supervisors may be enjoined from issuing the license. The statute authorizes the granting of licenses by the county boards to keep dram-shops only upon the application, by petition, of a majority of the legal voters of a town. The circuit court denied a motion for an injunction, and on motion of the defendants dismissed the bill. On appeal to the Appellate Court for the Second District the decree was affirmed, and an appeal taken to this court.

We do not think.there is shown here a case entitling the complainants to maintain their bill. Whatever of injury may result from the threatened act of the board of supervisors in issuing a license to keep a dram-shop without having been petitioned for, as alleged, by a majority of the legal voters of the township, it will be one common to all the inhabitants of the township, affecting them alike, and there will be no special injury to these complainants.

The principle is very well settled that where the duty about to be violated by public officers is public in its nature, and affects the public in general alike, one not suffering any special injury can not maintain a bill to enjoin the violation, but the only mode of remedy is on application of the proper public officer of the State on behalf of the public. This very question we had occasion to consider in the recent case of The City of Chicago v. The Union Building Association, ante, p. 379, where the subject was very fully gone into, and the authorities cited, and we held the rule as above declared.

Upon the principle of that decision the complainants have no standing in court, and their bill was rightly dismissed.

The decree of the Appellate Court is affirmed.

Decree affirmed,.


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    William Bland et al. v. David Bland et al.

      Filed at Ottawa May 12, 1882.

    1. Will—rule of construction. In the construction of a will to ascertain the intention of the testator, it is not proper to look at somp particular clause or clauses alone, but it must be considered in all its parts, taken together. A construction should not be adopted, if possible to be avoided, that will deny effect being given to any clause thereof, but one should be given that would harmonize the several clauses, and give effect to each.
    2. Same—construed as to who shall take an estate. A testator provided in his will as follows: “First, after all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath and dispose of as follows, to-wit: To my wife and five youngest children,” naming them, “the farm and all its appurtenances thereunto belonging,” giving a description of the farm. “All the rest, residue and remainder of my personal estate to my beloved wife and the five above named heirs,— that is to say, to my wife during her natural life, and to the minor heirs until they become of lawful age to account for themselves. To my other heirs and oldest children, heirs at law, I give and bequeath the sum of five dollars each,” etc., and concluding, “and at the time of the youngest heir becoming of lawful age, the property, both real and personal, to be divided amongst my children, share and share alike:” Held, that the testator’s intention was that the farm, as well as the personalty, should be divided and pass to all his children, share and share alike, when the youngest child became of age, and that the devise of the farm to the widow and five youngest children was not a devise to them absolutely, but a qualified devise to them until the youngest child should come of age, and that the limitation of the devise was the same as to both the real and personal estate.
    3. Same—when word “heir” means child. In such will the word “heir,” in the clause providing that the property be divided when the youngest heir should become of age, means “child,” and a partition may be had when the youngest child is of age, although one of the devisees may have died, leaving a minor heir.
    Appeal from the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding.
    This was a bill in chancery for a partition of certain real estate, and assignment of dower therein, brought in the circuit court of Peoria county by appellants, representing the four elder children of John Bland, deceased, against appellees, representing the widow and five younger children of said deceased, and basing their right to the relief asked upon the provisions of the will of such decedent. The bill sets out the will, the provisions of which, material to be considered, are as follows: “First, after all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath and dispose of as follows, to-wit,: To my beloved wife and five youngest children,—that is to say, Rachel Ann Bland, Charlotte Bland, Elizabeth J. Bland, David Bland, and Eliza Paradine Bland,—the farm and all its appurtenances thereunto belonging, known and described as follows, to-wit: it being 157 acres, being and lying in the south-west quarter of section 34, in township 11, north of the base line, in range 8, east of the fourth principal meridian. All the rest, residue and remainder of my personal estate also to my beloved wife and the five above named heirs,—that is to say, to my wife during her natural life, and to the minor heirs until they become of lawful age to account for themselves. To my other heirs and oldest children, heirs at law, I give and bequeath the sum of five dollars each; to Margaret Bland five dollars, to William Bland five dollars; to Mary Ellen Pierce five dollars, and to John A. Bland five dollars and two yearling colts, (one is a bright bay, the other is brown, with a bald face and white hind legs); and at the time of the youngest heir becoming of lawful age, the property, both real and personal, to be divided amongst my children, share and share alike. ” The will bears date October 8, 1862. The bill avers that John Bland died in 1863 or 1864, that the real estate described in the will is all the real estate owned by him at the making of his will and at his death, and that the youngest child long since became of lawful age. The circuit court sustained a demurrer to the bill and dismissed the same, and the complainants appealed.
    Messrs. Stevens & Lee, for the appellants :
    The intention of the testator, as gathered from the whole will, must govern, and, if possible, effect should be given to every part. It being admitted by the demurrer that there was no other real estate than that mentioned in the first clause of the will, it will be presumed the testator referred to it in providing for a division.
    If the first and third clauses of the will are repugnant, the latter must be considered as modifying or abrogating the former. Brownfield v. Wilson, 78 Ill. 467; Smythe v. Taylor, 21 id. 296; Caruthers v. McNeil, 97 id. 256; Johnson v. Johnson, 42 id. 425; Poole v. Blakie, 53 id. 295; Wesch v. Belleville Savings Bank, 94 id. 191.
    There are two constructions that may be given to the will without doing injustice to any one:
    First—The widow took a life estate in the personal property by the express terms of the will; now, giving her dower in the real estate, and, under the last clause of the will, dividing the balance equally among all the children, would work no injustice to any one.
    Second—If the first and second clauses of the will should be considered as connected, and constituting but one clause, then the widow would take a life estate in both the real and personal property. By the last clause of the will, the youngest child having long since become of age, the property should be divided among all the children equally, subject to the life estate of the widow. It is immaterial to complainants which interpretation shall prevail. But to give the will the construction contended for by the respondents, would be an act of injustice to the older children never intended by the testator.
    Messrs. Cooper & Tennery, for the appellees :
    The rule that in case of repugnancy in different parts of a will the last part is to be held as modifying or defeating the first, is not one of general application, and is adopted only in extreme cases, and from necessity. Rountree v. Talbot, 89 Ill. 246.
    The first clause unqualifiedly gives “the farm and all its appurtenances ” to the testator’s wife and five younger children. The second clause was not designed to change the first, but rather to fix the time when the division of the farm between the parties thus designated was to be made. It could not have been intended to operate as a grant of any interest in the land to any one.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The question presented is simply one of the construction of the will,—whether, as appellants claim, all the children of the testator, the older as well as the younger set, are to share equally in the land described in the will, or whether, as appellees claim, the widow and the five younger children take the land in fee and in equal parts among them to the exclusion altogether of the four older children.

Looking at the first clause of the will by itself, the widow and five youngest children take the whole land absolutely, and taking the- first and second clauses by themselves, the more natural construction would be the same, that the widow and five youngest children take the land absolutely, and as to the personal estate, that that was given to them only during the natural life of the widow, and until the minor heirs became of age. But this looking at, and resting upon, some particular clause or clauses of an instrument is not the right mode of construing it,—it must be looked to in all its parts, and the entire will be considered together, in order to ascertain what is its meaning. Now, when we come to look at the last clause of this will, we see that when the youngest child becomes of age, the property, both real and personal, is to be divided amongst the testator’s children, share and share alike. It is the property, both real and personal, which is to be thus divided,—that is, the property before mentioned and devised. As this farm devised was all the real property the testator had at the making of the will and his death, as the demurrer admits, it was this farm,—the real property he had been speaking of and had devised to his wife and five youngest children,—which, no doubt, the testator had in mind when he said, the property, both real and personal, should be divided amongst his children. And he said it should be divided amongst his children,—not amongst his five youngest children.

Appellees’ construction disregards this third clause, and denies to it any force and effect, but the will is to be so construed, if possible, as to allow effect to every part. It is the intention of the testator derived from the whole will which must govern. Beading, then, these three clauses of the will together, we find that it was the intention of the testator that this farm which he devised should be divided among all his children, share and share alike, when the youngest child came of age; that the devise of the farm to the widow and five youngest children mentioned in the first clause was not a devise to them absolutely, but a qualified devise to them until the youngest child should come of age; that there was the same limitation of the devise of the real estate that there was of the personal estate; that in the second clause, “all the rest, residue and remainder of my personal estate also to my beloved wife and the five above named heirs,—that is to say, to my wife during her natural life, and to the minor heirs-until they become of lawful age to account for themselves, ”—the limitation therein following the words “that is to say, ” is not confined to the personal property, as would seem the more natural construction from the reading of this clause alone, but that it applies to the real estate as well as to the personal property. Such we believe to be the true construction in view of the last clause,—the one which effectuates the intention of the testator as there manifested,—and which the application of the well known rules of construction requires to be made. It is necessary in order to give effect to the last clause, and it gives effect to all the clauses of the will.

In Rountree v. Talbot, 89 Ill. 249, this court said: “The great and leading principle in the construction of wills is, that the intention of the testator, if not inconsistent with the rules of law, shall govern, and this intention is to be ascertained from the whole will taken together. . Courts will, if possible, adopt such construction as will uphold all the provisions of the will.” So in Brownfield v. Wilson, 78 Ill. 467, it was said: “It is one of the familiar rules of construction, whether of a will or other instrument, that in cases of doubt all its parts should be considered together, and, if possible, to give every clause and provision effect according to the intention of the maker. When ascertained, the intention of the testator must be enforced. ” And further: “The question, however, is, the entire instrument considered, what did the testator intend by the will?” And see City of Peoria v. Darst, 101 Ill. 609.

We find that by this will he intended this farm should be divided amongst all his children, share and share alike, when the youngest of them came of age.

In case of this being found to be the true construction of the will, the question is suggested whether any division of the property can now be had. This question is raised upon the showing of the bill that one of the five younger children has deceased, leaving'an only child and heir, which is still a minor, and by the terms of the will the property is to be divided “at the time of the youngest heir becoming of lawful age. ” We have no doubt that by the term “heir” the testator meant child, and as the bill avers the youngest child had become of lawful age, we see no obstacle in the way of a present partition.

The decree of the circuit court is reversed, and the cause remanded for further proceedings in conformity with this opinion. 7

7 Decree reversed.


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    Joseph O. Farrell v. The People of the State of Illinois.

      Filed at Ottawa May 12, 1882.

      1. Evidence in criminal cases—admission of defendant’s affidavit for a continuance on defence of insanity. On a trial for an assault with intent to murder, when insanity alone is relied on in defence, the assault and shooting not being controverted, it is error to admit in evidence, on behalf of the prosecution, the affidavit of the defendant made for a continuance, in which he denies the act alleged, and his guilt, it being wholly irrelevant to the issue of insanity.
    2. Same—defendant’s affidavit for continuance as evidence. An affidavit of a party,for a continuance is competent evidence against him on the trial, when it is relevant to the issue, it standing on the same footing as any other declaration made by him under oath.
    3. Same—evidence showing a different offence, not proper. On the trial of one for an assault with intent to murder, he can not be punished for perjury in his affidavit for a continuance, and the admission of the affidavit in evidence for that purpose, or where its only effect is to show his perjury, is error;

      Writ of Error to the Circuit Court of Whiteside county; the Hon. William Brown, Judge, presiding.
    Mr. O. F. Woodruff, for the plaintiff
    in error, reviewing the evidence somewhat in detail, contended that it showed insanity in the accused, and an entire want of motive for the act of the prisoner.
    If the evidence all considered shows a want of some essential element to the crime charged, or if the preponderance is such as to leave the judicial mind in serious doubt as to the guilt of the accused, a new trial should be granted. Rafferty v. People, 72 Ill. 42; Doiur v. State, 2 Humph. 442.
    Homicide may be murder, or manslaughter, or excusable, or justifiable, according to the circumstances of the case or the state of mind inducing the act. Therefore, it is not the naked act which constitutes the offence or determines its character, but the quo animo,—the disposition or state of mind with which it is done. Maher v. People, 10 Mich. 213; People v. Pond, 8 id. 150; Wilson v. People, 24 id. 410; 2 Bishop on Crim. Law, sec. 724.
    The court committed a grave error in admitting in evidence the prisoner’s affidavit for a continuance. It proved no issue in the case, and was well calculated to prejudice the jury against the prisoner. Yundt v. Hartranft, 41 Ill. 9.
    Under the evidence of insanity, it was error to instruct the jury that the law presumed malice from certain acts. If the evidence left the question of malice or criminal intent doubtful, it was not proper to resort to presumptions to solve the obscurity. State v. Coleman, 2 Rich. 185; Filkin v. State, 69 N. Y. 101; State v. Painter, 67 Mo. 84; Maher v. People, 10 Mich. 213; Wharton on Crim. Evidence, secs. 734-738.
    Mr. James McCartney, Attorney General, for the People,
    contended that the evidence was amply sufficient to justify the conviction,—that when the act itself is unlawful, a criminal intent will be implied without express proof. Hanrahan
      v. People, 91 Ill. 142; Perry v. People, 14 id. 496; Olive v. Commonwealth, 5 Bush, 376; Roberts v. People, 19 Mich. 401; State v. Goodenow, 65 Maine, 30; Mullins v. State, 37 Texas, 337.
    The affidavit for a continuance was properly admitted as tending to rebut the evidence of defendant’s insanity. The case of Yundt v. Hartranft, 41 Ill. 9, is not in point. The affidavit in that case was for a change of venue, and could throw no light on the issues. As to the weight of this evidence on the issue of insanity, it was for the jury to decide.
    That the instructions that the law presumes a man to intend the reasonable and natural consequences of any act intentionally done, is correct, counsel referred to Perry v. People, 14 Ill. 496; Hanrahan v. People, 91 id. 142; People v. Scott, 6 Mich. 287; Rumsey v. People, 19 N. Y. 41; People v. Vinegar, 2 Park. Cr. Rep. 24; King v. State, 21 Ga. 220; Cole v. State, 10 Ark. 318.
    Mr. Walter Stager, State’s Attorney of Whiteside county, also for the People.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Plaintiff in error was convicted of an assault with intent to commit murder, and sentenced to the penitentiary for the term of five years. The fact that he committed an assault with a deadly weapon, and without any legal excuse, is proved beyond doubt, and is not controverted. The sole defence interposed upon the trial was, that plaintiff in error was insane at the time of the committing of the assault. Evidence was introduced on behalf of plaintiff in error, and of the People, upon this issue, so that the question was fairly before the jury.' Of the weight of that evidence we do not deem it our province; in the present state of the case, to speak. Plaintiff in error was entitled to have the issue passed upon by the jury, and that they might do so intelligently and dispassionately, it was indispensable that,irrelevant evidence tending to complicate the issue or improperly arouse their prejudices should be excluded.

Before the trial, plaintiff in error moved to continue the cause on account of the absence of a material witness, and in his affidavit in support of that motion he deposed that he could prove by the absent witness that he did not fire the shot which constituted the alleged murderous assault, and that what he could so prove was true, and that he was not guilty, etc. The court overruled the motion, and refused to continue the cause. On the trial, and after the People had given to the jury all their evidence in rebuttal of the evidence of the plaintiff in error on the question of insanity, the State’s attorney was permitted by the court, over the objection of the plaintiff in error, to read this affidavit in evidence to the jury. It is patent that it was utterly irrelevant to the issue being tried. It did not tend to prove a single fact which it was incumbent on the People to prove, or to disprove anything which the plaintiff in error had attempted to prove. Of course, the affidavit of the party is competent evidence against himself, when it is relevant to the issue. It stands on the same footing as any other declaration made by him under oath. But who would pretend that it would be relevant on the question of insanity to prove that a party had, before that time, declared his innocence of any particij)ation in the act alleged to be criminal, and had sworn to this declaration ? The affidavit may be true, and the plaintiff in error may have also been' insane. If" he was in fact insane, he may have had no recollection of the transaction, or no capacity to reason in regard to it. In any view, what he swore to in this affidavit can not have a tendency to enlighten the question whether he was affected with insanity at the time he committed the assault. The improper effect of the affidavit upon the minds of the jury may have been either in producing the belief that the defence of insanity was an afterthought, and so not urged in good faith, or that plaintiff in error had committed perjury in making the affidavit, for which he deserved punishment. If he was really insane when he committed the assault, it could legally make no difference when the defence was first interposed. He would not, himself, be a competent judge of his mental status, and the more certain his insanity, the more certain it would be that his affidavit ought not to be regarded, for any purpose. But the proof that he committéd the assault being conclusive, the jury, without reflecting whether sane or insane, might conclude he is clearly guilty of perjury, and use the fact of that guilt not only as a make-weight in determining his guilt of the specific offence charged, but also in fixing the amount of his punishment for that offence. If it be true that he committed perjury in the affidavit, he can not be punished for that offence on this trial. These principles are obvious, and can require no elaboration.

For the error in admitting the affidavit in evidence, the judgment below is reversed, and the cause remanded. The other errors assigned are not deemed tenable.

Judgment reversed.