author: Mr. Justice Mulkey

text:
    George Lander v. The People of the State of Illinois.

      Filed at Springfield September 28,1882.

    1. Ebrob—when will not reverse. This court will not reverse a conviction in a criminal case for every trivial error, without regard to whether it exerted an improper influence over the jury or not.
    2. Instructions—their office. The office of instructions is to inform the jury what the law is relating to the case in hand, and to assist them in applying it to the evidence before them; and it is the duty of courts of review, in criminal cases, to see that no substantial error is committed in attempting to accomplish these objects, which may prejudice the rights of the accused, and this is all the law requires.

      3. Evidence—acts, declarations and exclamations of persons as part of the res gestee. Where it becomes important to show, upon the trial of a cause, the occurrence of any fact or event, it is competent and proper to also show any accompanying act, declaration or exclamation which relates to, or is explanatory of, such fact or event. Such acts, declarations or exclamations are known as res gestee.

    4. On the trial of ope upon a charge of rape, two witnesses were called who were near by and witnessed the perpetration of the offence, and who testified they s'aw and readily recognized the accused near the scene of the . transaction on the next day thereafter, and that one called the attention of the other to the accused, exclaiming, “There goes the man!” and that the other replied, “Yes, there he goes.” The defendant objected to the witnesses repeating their exclamations made at the time, but the court permitted the same: Held, no error.
    5. The true test of the admissibility of such testimony is, that the act, declaration or exclamation must be so intimately interwoven with the principal fact or event which it characterizes, as to be regarded a part of the transaction itself, and also to clearly negative any premeditation or purpose to manufacture testimony.
    Writ of Error to the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.
    Mr. Albert Gf. Webber, for the plaintiff in error.
    Mr. James McCartney, Attorney General, for the People.
   Mr. Justice Mulkey

delivered the opinion of the Court:

At the December term, 1881, of the Macon county circuit court, George Lander, plaintiff in error, was tried and convicted of the crime of rape upon the person of Mary Sturgis, and was duly sentenced to the penitentiary for a period of twenty-five years, in pursuance of the verdict of the jury,' and the accused brings the case here for review,- and asks a reversal on several grounds, but chiefly because the evidence does not, as is alleged, sustain the conviction.

It is first objected the court erred in the giving, refusing and modification of instructions. It is seldom instructions prepared in the hurry and excitement of a trial are drawn with perfect accuracy, and it is conceded they were not in the present ease. We are of opinion, however, none of the .errors complained of are of such a character as to have possibly prejudiced the rights of the accused. To reverse for every trivial error, without regard to whether it exerted an improper influence over the jury or not, would render our Criminal Code practically inoperative. The office of instructions is to inform the jury what the law is relating to the case in hand, and to assist them in applying it to the evidence before them, and it is the duty of courts of review, in criminal cases, to see that no substantial error is committed, in attempting to accomplish these objects, which may possibly prejudice the rights of the accused, and this is all the law requires. Without going into details, we may say, in general terms, that we have carefully examined the instructions, and the several objections urged against them, and the action of the court with respect to them, and are unable to perceive anything which, in our judgment, requires a reversal of the ease. Taking the instructions as a whole, we think they fairly present the law applicable to the case, and that there is no just cause to complain on the grounds suggested.

The real and vital question in the case is, as is conceded by counsel for plaintiff in error, does the evidence sustain the conviction. That a rape was committed by some one upon Mary Sturgis, as charged in the indictment, is proved by the positive testimony of Minnie Blentz, Hattie Moore, Charlie Gouker, Warren Marthland, and Mary Sturgis herself, all of whom were, as they testify, eye witnesses to the fact. Indeed, there is no contention on this question.' It is conceded the corpus delicti is fully established, the only controversy being as to whether the perpetrator of the offence and the accused are the same person, and to this question of identity most of the evidence is directed. The offence was committed at a place called the “Levee, ” near the Wabash railroad track, in the city of Decatur, about five o’clock of the afternoon of the 3d of June, 1881. As the evidence offered on behalf of the accused is embraced in a small compass, we will, for the sake of convenience, consider it first.

Joseph Siegler, who resides about nine miles south-west of Decatur, testifies that the accused, who had previously been working for him, left his house early on the morning of the day the offence was committed; that he left because he did not need a hand by the month; that he had been harvesting for him two days; that the defendant wore about the same chin-whiskers then that he did at the time of the trial; that the defendant’s hat and clothes were the same that were worn by him at witness’ house. Mrs. Robert Cullen testified : “I was at Mrs. Sturgis’ house when the prisoner was brought here by Dave Sturgis, and heard Mrs. Sturgis say then, that if this (pointing to the prisoner) was the same man, he had cut off and colored his whiskers, and changed his overalls, since yesterday. She said the man who outraged her wore striped overalls. I had the prisoner brought back into the house, and we searched for striped overalls, but did not find any.” On cross-examination she further says: “I can not prove the exact words used by. Mrs. Sturgis, and don’t remember just all she said about the whiskers and striped overalls. The conversation I refer to was not when Dave Sturgis brought the prisoner to the house, but was on the evening of the rape, when Kate Mitchell and myself were present. ” • Mrs. Mitchell testifies that Mrs. Sturgis stated, on the evening of the rape, that the man who ravished her wore striped overalls, and had light, sandy whiskers, with some gray hairs in them. Sandy Rogan and Isaac Rogan, who are barbers, swear that the accused was at their shop about eleven o’clock A. M. of the day the offence was committed, and that his whiskers were then about as short and dark as they were on the following day, when he was under arrest. The accused was also examined in his own behalf. He denies all connection with the offence, and gives rather a lengthy account of himself and of his whereabouts, both before and after the perpetration of the crime, and of the particulars of the arrest, and what occurred while in charge of Sturgis, who" arrested him, which requires no special notice, as it has no material bearing on the vital question of identity. Some evidence was also offered in his behalf with the view of establishing an alibi, but it is so manifestly insufficient for that purpose we attach no importance to it. It is clear, from the weight of testimony,’ the accused was in the immediate vicinity of the place where the offence was committed, about the time of its perpetration, and that he was not therefore without an opportunity of committing the crime, provided he had the inclination to do so.

It will be perceived the whole of the testimony on the part of the accused was offered with the view of showing the description which Mrs. Sturgis gave, on the day of the occurrence, of the whiskers and overalls of the party who committed the assault upon her, does not correspond with the whiskers and overalls of the accused as they were shown to be on the trial, both before and after the commission of the offence, and upon this question,—if we include the accused,—the weight of evidence, so far as it depends upon the number of witnesses, is clearly with the plaintiff in error. Yet we do not attach the same importance to this fact, even if it had been established beyond all question, that counsel for the accused does. It does not necessarily or logically follow the accused is innocent, because the prosecutrix’s description of him or his clothing turned out to be incorrect. In view of her extreme age,—she being then seventy-one years old,—and the suddenness and violence of the assault made upon her, which, as the evidence shows, greatly stunned' her, and almost deprived her of her senses, we can well see how her recollection might be at fault about a matter of this kind. And if the identity of the accused depended upon her testimony alone, although she positively identified him, we should, under the circumstances stated, feel great hesitancy in sustaining the conviction, if, indeed, we could do so at all. But the identity of the accused does not depend upon her testimony alone,—far from it. The account which she gives of the affair is as follows: “My name is Mary Sturgis. I am seventy-one years of age. On the afternoon of June 3, 1881,1 was going out home, and got on the Wabash railroad track at or near a-place in Decatur called the ‘Levee.’ A man passed by me, and brushed against me as he passed. He was going west on the track, and he went on until he got past Blentz’ house, and there sat down upon the track. Just as I came up to where he was, a train came up rapidly, going east. He said,'‘Look out for the train,’ and stepped off on the north side of the track, and I on the south side. When the train had passed me I stepped on the track again, and the man came up at me with his pants unbuttoned. He caught me by the arm and threw me down with great violence, on my back, by the side of the track. I think I struck on some ties that were piled up near the track, and two of my ribs on my left side seemed to have been broken loose from my backbone by the fall. I was very much stunned by the fall, and rendered almost incapable of resistance. Still I resisted as much as I could. The man pulled up my clothes, and then placed his hand on my breast and pushed down so hard that I could scarcely breathe. When I opened my mouth to scream he placed one hand on my mouth. He laid with his' whole weight on my body, and had actual sexual intercourse with me. This was done with great force and violence. I resisted all I could, but my legs seemed paralyzed. The whole thing was done forcibly, and against my will. ” Being asked if she could identify the person who committed the assault upon her, she pointed out the prisoner, saying, “That is the man.” On cross-examination she said further: “I did not say, 'when this man was brought to my house next clay by my son David, in the presence of the prisoner, Mrs. Katie Mitchell and Mrs. Bobert Cullen, that if he was the same man he had changed his whiskers by cutting them off and coloring them, and that he had also changed his overalls, and put on these brown ones instead of the striped ones that he wore the day before.” And in this statement she is corroborated by David Sturgis, though contradicted, as we have already seen, by Mrs. Cullen and Mrs. Mitchell, and also by the accused.

Hattie Moore testifies: “I was with Minnie Blentz, and saw Mrs. Sturgis lying, at the side of the railroad track. It was between four and five o’clock in the afternoon, and about two miles from the depot. I saw a man on his knees over her, and as he got up he made a motion with his hands as if pulling down her clothes. I was twenty-five yards away from them. We hallooed, then he got up, dumb the fence, and ran into the woods. Mrs. Sturgis sat there about five minutes, when she was helped home by Charley Athens. She seemed in great pain' and distress, and complained of being internally injured. The next day Minnie Blentz called me to the window of her house and pointed to a man going west on the railroad, and said, ‘There goes the man.’ I said, ‘Tes, there he goes.’ The man we saw was this defendant. About two hours afterward Dave Sturgis brought the defendant to Blentz’s house, and I recognized him as being the man I saw the morning before with Mrs. Sturgis. The defendant is the man I saw with Mrs. Sturgis. I recognized him by his general appearance, and by these clothes. The clothes here before me are the same he had on that day, and the hat is the same.” It was admitted by defendant’s counsel the clothes referred to by the witness, then lying on the floor before the witness, were the same clothes that defendant had on, or wore, on the day of his arrest, and the same that. he wore when he left Siegler’s house on the morning of the third day of June. On cross-examination the witness further said: “I am fifteen years old. I never saw the man who outraged Mrs. Sturgis before I saw him with her then. I did not see his eyes, or the features of his face, then,—only saw the side of his face while he was getting up and running away. I was not nearer than twenty-five yards to him then. I saw some men at that season of the year wearing large straw hats and brown overalls, like those now before me (the prisoner’s), going out over the same railroad track. I do not remember any particular thing or mark about the man’s overalls or jacket on the day of the rape,—only remember the narrow black band on the hat. I have seen many large hats like that one, but never saw any other with a narrow black band on like that one. ”

Minnie Blentz, spoken of by the last witness as being in company with her at the time of the assault, testifies substantially to the same facts sworn to by Hattie Moore. Charley Gouker and Warren Marthland were also examined on behalf of the People, both of whom testify they were near the place testified to by the prosecutrix, and saw the assault made upon her; and while they did not get a fair view of the assailant’s face, yet, from his general appearance, they give it as ■ their opinion the accused is the same person. They further testify that when requested by the State’s Attorney to pick him out from a number of other persons seated on the opposite side of the bar, they were able to do so.

Thus we see four persons, besides the prosecutrix, unimpeached and unimpeachable, so far as the record shows, who were eye witnesses of the assault; swearing, to the best of their opinion, the accused is the perpetrator of the offence, and this is denied by no one other than the accused himself. Under these circumstance's we are of opinion the jury were fully warranted in reaching the conclusion they did.

As already appears from the testimony of Minnie Blentz and Hattie Moore, the accused, on the day following the assault, was passing near the place where it happened, when the former, calling the attention of the latter to the accused, exclaimed, “There goes the man,” the other replying, “Yes, there he goes, ” and the court, against the objections of the defendant, permitted the witnesses, in giving an account of the transaction, to repeat these exclamations, made at the time by the witnesses, and this is assigned for error. We do not think the point well taken. It is a well settled principle in the law of evidence, that whenever it becomes important to show, upon the trial of a cause, the occurrence of any fact' or event, it is competent and proper to also show any accompanying act, declaration or exclamation which relates to, or is explanatory of, such fact or event. Such acts, declarations or exclamations are known to the law as res gestee. It is not questioned that it was perfectly competent to show that the witnesses saw and readily’recognized the accused, near the scene of the transaction, on the following day, as testified to by them, and it must be admitted the spontaneous exclamation, “There goes the man, ” with the response, “Yes, there he goes, ” is highly characteristic of the fact of their recognition. The true test, in all cases, by which the admissibility of such testimony is determined, is, the act, declaration or exclamation must be so intimately interwoven or connected with the principal fact or event which it characterizes, as to be regarded' a part of the transaction itself, and also to clearly negative any premeditation or purpose to manufacture testimony, and we are of opinion the circumstances of this case clearly bring it within the rule.'

Perceiving no substantial error in the record, the judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    St. Louis, Jacksonville and Chicago Railroad Company v. Juliet M. Mathers.

      Filed at Springfield September 28,1882.

    1. • Chancery—illegal contract will not be enforced. Where property is conveyed to trastees in trust, for the benefit of a railroad company, under a contract which is contrary to public policy, and illegal, a court of equity will not aid either party in any effort he may make to reap the benefits which may flow from such illegal contract.
    2. So, where the owner of lots conveyed the same in trust, for the benefit of a railroad company, in consideration of the illegal agreement of the company not to establish any depot or station within three miles of a certain place on its road, and the trustee afterward reconveyed the property back to the grantor, it was held, that the company could not maintain a bill to have the lots sold for its benefit, and have the same again conveyed to a trustee for its benefit, nor could it claim the right to have the taxes paid on the lots made a charge thereon for its reimbursement.
    3. In determining whether a contract is illegal, the entire contract on both sides will be considered, and if the consideration is illegal, no part 'of it will be enforced. One part can not be disregarded and the other enforced.
    4. Same—reimbursing party for taxes paid by mistake. If a party pays taxes on land which belongs to another, under the mistaken belief of ownership, a court of equity will not grant him any relief by which he may be reimbursed the sum paid.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Morgan county; the Hon. Cybus Epleb, Judge, presiding.
    Messrs. Beown, Kirby & Bussell, for the appellant:
    The court below erred in rendering the decree dismissing complainant’s bill. This court has very plainly decided that the evidence was incompetent to affect the validity of the deed of April 25, 1860. St. Louis, Jacksonville and Chicago R. R. Co. v. Mathers, 71 Ill. 572.

      A condition in a grant which! is contrary to the policy of the law, is void. Doe dem. Mitchinson v. Carter, 8 T. R. 61.
    If the condition subsequent be against the law, the estate of the grantee being once vested is not thereby divested, but it becomes absolute, and a court of equity will never lend its aid to divest an estate for the breach of a condition subsequent. 4 Kent’s Com. (5th ed.) 130; 1 Washburn on Real Prop. 447.
    The court below should at least have charged the land in question with the taxes paid on it by appellant. The rule is, that when one, in good faith, believing himself to be the owner, either in law or in equity, of a piece of land, has made necessary and valuable improvements thereon, upon the defeat of his title should be reimbursed for his outlay. Union Mutual Ins. Co. v. Campbell, 95 Ill. 267; Smith et al. v. Knoebel et al. 82 id. 392; Kinney et al. v. Knoebel, 51 id. 114.
    Messrs. Mobbison, Whitlock & Lippincott, for the appellee:
    The deed of April 25, 1860, and the resolution of May 2, i860, are parts of the same transaction, and were construed together in St. Louis, Jacksonville and Chicago R. R. Co. v. Mathers, 71 Ill. 592.
    The complainant and defendant were equally involved in an unlawful combination, and a court of equity will assist neither. Craft et al. v. McConoughy, 79 Ill. 346; Jerome v. Bigelow, 66 id. 452; Henderson v. Palmer, 71 id. 579; Paton et al. v. Stewart, 78 id. 481; Parsons v. Elby et al. 45 id. 232; Lyon v. Culbertson, 83 id. 33; DeWolf v. Pratt, 42 id. 148; 1 Story’s Eq. Jur. secs. 297, 298.
    If the court can,, upon equitable principles, compel the payment of the sums paid for taxes by appellant, it can, on the same principles, enforce the performance of the contract. Craft et al. v. McConoughy, 79 Ill. 344; Neustadt v. Phillippi, 54 id. 309; Jerome v. Bigelow, 66 id. 452.
   Mr. Justice Craig

delivered the opinion of the Court:

The principal facts presented by this record were before this court at the January term, 1874, in the case of St. Louis, Jacksonville and Chicago R. R. Co. v. Mathers, reported in 71 Ill. 592. In the case cited, Mathers filed a bill to compel the trustees, who held the legal title to the lots in question, to convey to him, on the ground that the railroad company had disregarded the contract under which it obtained the conveyance. Since the decision was rendered, the trustees,’ of their own accord, conveyed the property to John Mathers, -and this bill was brought by the railroad company to obtain a decree for a sale of so many of the lots as may be necessary to pay taxes which have been advanced by it, and to pay for the erection of a freight house, side track, etc., and if any of the lots remain, that Mathers be required to convey them to a trustee to be designated by the court. On a hearing in the circuit court, a decree was rendered dismissing the bill, which, on appeal, was affirmed in the Appellate Court.

The consideration for the conveyance to the trustees named in the deed was, that no depot or station should be established within three miles of Ashland. The board of directors of the railroad company adopted a resolution accepting the donation of the property upon these terms and conditions. When the case was here before, the contract was held to be illegal and it was held that a court of equity would not lend its aid to enforce the performance of such a contract. In deciding the case it was said : “A court of equity will not lend its aid to enforce the performance of a contract which appears to have been entered into by both the contracting parties for the express purpose of doing that which is illegal; and where such a contract has been executed by one of the parties by conveying real estate, a court of equity will not, in general, interfere, but will leave the title to the property where the parties have placed it. ” This was said in the case when Mathers undertook, by a bill in equity, to obtain a reconveyance of the property on the ground that the railroad company had failed and refused to abide by the agreement under which the property was conveyed. Mathers now has a deed of the property, and the railroad company call upon a court of equity to restore the property back to it, or, what is the same thing, order it sold, and give the railroad the proceeds of such sale. What was said when the case was here before, may with propriety be said again. The same principles of equity which controlled before must govern now. The contract under which the property was conveyed for the benefit of the railroad company was contrary to public policy, and illegal, and a court of equity will not aid either party in any effort they may make to reap the benefits which may flow from such illegal contract. Had the property been conveyed to the railroad company in such' a manner that it could have converted it without the aid of the courts, then the company would have reaped the benefits of the conveyance, although the contract under which the property was conveyed was illegal; but when the company call upon a court of equity to assist it in holding the property or reclaiming it, a different rule prevails. Courts of equity do not assist parties to enforce illegal contracts, but will leave them in the position they have placed themselves.

But it is suggested that the resolution of the railroad company under which the conveyance was made is in the nature of a condition subsequent, and being void, the deed took effect as an absolute, unconditional conveyance, upon the terms specified in the deed, and that the railroad is entitled to relief against the subsequent diversion of the land. So far as this action is concerned, we do not regard it material whether the resolution is to be considered in the nature of a condition subsequent or not. The resolution, which specifies the terms and conditions of the conveyance, is a part and parcel of the contract under which the legal title to the property passed to the trustees,—grantees in the deed of conveyance. The complainant, in order to obtain relief, must show itself free from the taint of the illegal contract. This it can not do. It was not a purchaser of the property for value. It paid no consideration for the property. Its title came by and through an illegal contract, and one-half of that contract can not be disregarded and the other half enforced, but when a court of equity is called upon to grant affirmative relief, the whole contract will be considered, and if it appears to be illegal, the court will deny relief, and leave the parties where they have placed themselves by their illegal bargains.

The company has paid taxes on the property, and the amount thus paid, with interest, it is contended, ought at least to have been charged upon the property. It is unfortunate for the company that it has paid the taxes on this property, but we are not aware of any authority which would justify a court of equity in making the amount paid a charge on the land. We have no doubt that many cases have occurred where parties have paid taxes on land under the belief of ownership, and it afterwards turned out that the land belonged to another, and yet we are not aware of any instance in which the party who has thus paid out his money has been relieved in equity.

The decision of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scott

text:
    Mary C. Preston v. Lewis B. Casner et al.

      Filed at Springfield September 28,1882.

    1. Statute of Frauds—verbal contract to convey land. A verbal agreement by a person to convey lands to another, in consideration that the latter would remain with her family on the place of the former, and make a home there for the owner so long as he should live, is within the Statute of Frauds, and equity will not enforce the same when there has been no performance that will take the contract out oí the statute.
    2. Trust—not created by reguest of owner to Ms heirs to convey land. The owner of lands wrote a letter to his brother, who was a prospective heir of such owner, requesting him and his sister, on the owner’s death, to let a certain person have certain of his land for her kindness to him in sickness, and desiring them to see that his wishes as to the bounty be carried out, and subsequently wrote another letter to another person, showing more clearly that the former letter was a mere request, stating in the last letter further: “I give her my note for $4000, against me or my estate. * * * If my people refuse to give her the property, then they must pay the note:” Held, that this created no trust in respect to the land in favor of the person to whom the owner wished it secured, and being a mere request as to what disposition should be made of a part of his property, it was obligatory on no one to perform it.
    Appeal' from the Circuit Court of Piatt county; the Hon. C. B. Smith, Judge, presiding.
    Mr. J. E. Cone, and Mr. S. E. White, for the appellant:
    A trust was created by C. Casner in favor of appellant, by which she has an equitable estate, and is entitled to a conveyance of the legal title. 4 Kent’s Com. 304, 306; Story’s Eq. Jur. secs. 972, 973; Hill on Trustees, (4th Am. ed.) 95, 96, 101, 144; Kingsbury v. Burnside et al. 58 Ill. 310; 1 Greenleaf on Evidence, sec. 257.
    Extrinsic evidence is admissible to locate the land. 2 Phillips on Evidence, 276, 277, and note 8; 1 Greenleaf on Evidence, sec. 286; Colcord v. Alexander, 67 Ill. 581; Clark v.
      Powers, 45 id. 283; Marshall v. Gridley, 46 id. 247; Bybee v. Hageman, 66 id. 519; Cornwell v. Cornwell, 91 id. 414; Smith v. Crawford, 81 id. 296; Chicago Dock and Canal Co. v. Kinzie, 93 id. 415.
    • The trust is an executed one, and requires no consideration to uphold it. Hill on Trustees, (4th Am. ed.) 142; Nicol v. Ogden, 29 Ill. 323.
    An election was contemplated, and the right to locate the two hundred acres given to appellant, which she has exercised by her claim and occupancy, and by the bill, and the trust became thereby fixed on the land described. 2 Phillips on Evidence, 313; Cowen & Hill’s notes to same, 270, 527, vol. 4; 1 Best on-Evidence, (Morgan’s ed.) 426 ; Dane’s Abr. 363; 1 Sugden on Vendors, (Am. ed. from 9th London ed.) 189; Choat v. Burnham, 7 Pick. 274; Alien v. Kingsbury, 16 id. 239; Hanen v. Brown, 7 Greenlf. 421; Howle v. Biglow, 10 Mass. 379.
    If the court can not locate the land, the subject of trust, and if the case does not fall within the doctrine of election, then the trust is not to fail. But appellant becomes tenant in common with the heirs of C. Casner, and is to take five-eights of the east half of the section, or one-half of the four hundred acres in said section, and may have.relief under her general prayer. Freeman on Co-tenancy, see. 96, and cases there cited; Smith v. Crawford, 81 Ill. 296; Gill v. G. T. M. M. and T. Co. et al. 92 id. 249; Isaacs v. Steel, 3 Gilm. 97.
    Messrs. Nelson & Hundley, and Messrs. Lodge & Houston, for the appellees:
    The papers relied on are neither a contract to convey land, a conveyance by deed, nor a devise, and as a matter of law 0 do not create a trust. At most, they only show a desire of Casner as to how the land should be disposed of, and. not a disposition of it. 4 Kent’s Com. (4th ed.) 304.

      These papers create neither an executed nor executory trust, as either is defined hy law writers. 4 Kent’s Com. 805; Perry on Trusts, secs. 359, 77, 100, 102.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The original bill in this case was for specific performance, and was brought by Mary C. Preston, against Lewis B. Casner, Jemima Bear, and Eleanor Deck, and with whom is impleaded James Preston. It is alleged in the original bill that Christopher Casner, since deceased, was the owner of large tracts of land, and among others the home place, consisting of a large body of land, with dwellings and improvements situated thereon; that in April, 1876, he let complainant into possession of the dwelling house and adjacent land, upon consideration he should have a home with complainant, and that her husband should have land to till there; that in March, 1880, it was agreed, if complainant would agree to remain with her family on the place, and make a home there for him so long as he should live, that he (Casner) would make her a deed in her own right, conveying to her the house and two hundred acres of land, particularly described, within nine months from the first day of March, 1880, and that complainant did remain on the place, and made a home for him until his death, which occurred November 3, 1880. It is further alleged, Christopher Casner died intestate, leaving no widow or any child, or descendants of any child, and11 his only heirs him surviving being a brother, Lewis B. Casner, a sister, Jemima Bear, and a niece, Eleanor Deck, all of whom are made defendants to the bill. The prayer of the bill is, that the heirs of the intestate be decreed to convey the land in controversy to complainant, and for other relief concerning the matters alleged in the bill. To this bill the heirs filed their answer, in which they admitted the ownership of the lands in Christopher Casner at the time of his death, hut denied the contract and agreement, as alleged in the bill, and pleaded the Statute of Frauds, averring, also, that complainant’s possession and occupancy of the premises was as wife of defendant Preston, who was a tenant of the intestate, and not otherwise. Afterwards, on leave given by the court, complainant amended her bill, by insisting upon an equitable estate in the same lands, on the ground of a trust it is alleged was created in her favor by Christopher Casner, by his letter of the 11th of October, 1880, addressed to his brother, Lewis, and the paper of the 18th day of the same month, delivered to complainant herself, and by her retained. Both of these papers will be more particularly remarked upon further on, in speaking of their contents and legal effect. To the amended bill the heirs also answered, denying all the material allegations, and setting up the 4th section of the Statute of “Frauds and Perjuries, ” which is to the effect all declarations or creations of trusts in lands must be manifested by some writing signed by the party who is able by law to declare such trust, or by his last will in writing, or else they shall be utterly void, and of no effect. On the hearing, on proofs taken before the master in chancery, and in open court, the circuit court dismissed complainant’s bill, and now she brings the case to this court on appeal.

As respects the contract set forth in the original bill, that the intestate would, within nine months from a date mentioned, convey the lands to complainant on account of the consideration stated, by deed, it is obvious the Statute of Frauds, which is pleaded by the heirs, is a complete bar to any relief. It is not alleged the agreement or contract was in writing, and of course equity will not enforce a mere parol contract for the conveyance of lands, where there has been no performance that would take it out of the operation of the statute, against a party or his heirs who insist upon their privilege to avoid it under the statute, because such contract is not in writing, and signed by the party to be charged.

It remains to be considered whether the intestate created any trust in the lands involved, in favor of complainant, that is valid wdthin the meaning of the 4th section of the Statute of Frauds. It seems plain no trust was t created or manifested in her favor by either paper given in evidence. Treating both papers as having been signed by the intestate, it will be necessary to ascertain their legal effect. In the letter of the 11th of October, 1880, addressed to his brother, Lewis, he says he wants his brother to see that complainant gets a home where' she resides, and that he wants her to have two hundred acres, and he gives it to her where the house is. It was his special wish that his brother should see that she got it, and he then adds: “I mean to give her a home here, and deed it to her in her own name, as her own property. This is done of my own free will, for her kindness to me.” After expressing his great obligations to complainant for her kindness during his illness, he then adds in a postscript: “Tell Jemima the same, and see that my wishes are carried out before anything else is divided. If I don’t have a will, do just as I tell you, for this is my wish and will to be carried out by you, for she deserves this, and more, from me. * * * Jemima and you do just as I say.” In the paper of the 18th of the same month, he says: “In ease I should not get well to make arrangements for Mrs. Preston, and that.I don’t speak to my brother, Lewis, concerning my request in my letter to him, I give her this letter to hold. * * * I also give her her choice of taking the property or money, she wished the property in place of the money. * * * I give her, my note for $4000, against me or my estate. * * * She is to be provided for first, before any of the land is divided. * * * If my people refuse .to give her, the property, then they must pay the money. ”

Construing these papers together, as must be done, it is clear no trust is created by them in these lands in favor of complainant. They constitute neither a will in writing, nor yet such a writing as manifests a trust in the lands that could be executed by any one after the death of the intestate. The title to the, lands remained in the intestate, and of course at his death descended to his heirs at law. It was simply a request to his brother, Lewis, and his sister, Jemima, to see that his wishes concerning his bounty to complainant should be carried out, and it is nothing more. The request made of his brother and sister could only be performed so far as they were individually concerned. Another heir was interested in the lands, and of course they could make no deed that would pass the whole title to complainant, as it seems decedent wished it should be done. The second paper makes it clear beyond all controversy, that what he said in his former letter to his brother, Lewis, was a mere request to him and his sister to carry out his benevolent wishes toward complainant, who seems to have rendered him kindly attentions, for which he was most grateful, and was so understood by himself, for in this last paper he says: “I give her my note for $4000, against me or my estate. * * * If my people refuse to give, her the property, then they must pay the note. ” Being a mere request as to what disposition should be made of a part of his property, it manifested no trust that was obligatory upon any one to perform. Indeed, it was impossible of full performance by those upon whom the request was laid.

The decree of the circuit court dismissing complainant’s bill was proper, and must be affirmed.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    City of Bloomington v. L. A. Chamberlain.

      Filed at Springfield September 28, 1882.

    1. Negligence—injury from defective sidewall!,—of the degree of care required of the plaintiff. The degree of care which the law requires a plaintiff to exercise while passing over a sidewalk, to entitle him to recover for an injury received from its defective condition, is ordinary care, under all the circumstances of the case. Knowledge of the condition of the walk is one of the circumstances to be considered in determining whether the plaintiff exercised ordinary care.
    2. It can not be laid down as a legal proposition that a person traveling on the sidewalk of a city is bound to go out into the street and pass around the walk, although he knows it to be defective, especially when the defect is merely loose boards, and the walk is not palpably dangerous.
    3. In an action against a city to recover for an injury caused by loose boards in the sidewalk, an instruction that the law required the plaintiff to show that at the time she sustained the injury she was exercising ordinary care and caution, and that if by the exercise of such care and caution she would have avoided the danger, the verdict should be for the defendant, states the law sufficiently favorable for the defendant, and removes any just cause of complaint in refusing an instruction that if the plaintiff knew of the defective condition of the walk, it was her duty to exercise a high degree of care while passing over it, and also another, that if she could have gone out into the street and around the defective sidewalk, and her failure to do so showed a want of ordinary care on her part, the jury should find for the defendant.
    4. Pleading and evidence—proof of business or occupation of one seeking to recover for personal injury resulting from, negligence—wnder what averments as to special damage. In an action to recover damages sustained from a personal injury, resulting from the alleged negligence of the defendant, one count of the declaration alleged that plaintiff was hindered from transacting her business and affairs, and deprived of large gains and profits which she otherwise would have earned, and in another count, that the injuries received had a permanent effect upon her personal bodily strength and ability to make a living, and that she had been rendered unable to earn or make for herself a living, and had been deprived of large gains and profits which she otherwise would have earned: Held, that under these averments it was admissible for the plaintiff to show what was her business, and that she had been disabled from pursuing it by reason of her injuries.

      5. Evidence—concerning such business, and the profits arising from, it. In such case, the court permitted the plaintiff to testify that she had taught school at $50 per month, and that at the time of receiving the injury she and another lady were making arrangements to teach a select school, but on account of the injury she was compelled to give it up. She had already testified, without objection, that she had followed the business of teaching school, and that she did not suppose she could prosecute that business: Held, that the only objection to this was the witness stating what she had received, instead of what was the usual compensation for school teaching, and that that was sufficiently removed by the remark of plaintiff’s counsel, “If he objects, strike it out, ” made on objection to her stating what she received. Such evidence went to show no more than an actual interruption of the business of school teaching. Had it gone to show the loss of the profits of a particular engagement to teach, another question would havó been presented.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal cfrom the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    This was an action on the case, brought by appellee, in the circuit court, against the city of Bloomington, for the recovery of damages for personal injuries occasioned, as it is alleged, by the negligence of the city in permitting a defective sidewalk to remain out of repair. A trial resulted in a judgment for the plaintiff, which, upon appeal, was affirmed in the Appellate Court. The defendant thereupon appealed to this court.
    Messrs. Kerrick, Lucas & Spencer, for the appellant:
    The burden of proof was on appellee to show, by the evidence, that the accident was not caused by a want of ordinary care on the part of her son, under whose care she had placed herself to take her home. City of Joliet v. Seward, 86 Ill. 406; Wharton on Negligence, sec. 134.
    If the appellee knew of the defect before going on the walk, then it was her duty to have used a high degree of care to avoid the defect. Macomb v. Smither's, 6 Bradw. 473; Centralia v. Krouse, 64 Ill. 19; Lovenguth v. City of Bloomington, 71 id. 238.

      If appellee failed to use ordinary care, she can not recover. President, etc. v. Carter, 2 Bradw. 34; Chicago City Ry. Co. v. Lewis, 5 id. 242; City of Chicago v. Watson, 6 id. 344; City of Macomb v. Smithers, 6 id. 470; Aurora v. Pulfir, 56 Ill. 270; Chicago and Alton R. R. Co. v. Becker, 76 id. 30; Illinois Central R. R. Co. v. Hetherington, 83 id. 510; Chicago and Northwestern R. R. Co. v. Scates, 90 id. 588.
    Loss of position, and profits that would arise therefrom, are not the proximate results of the injury complained of. Sherman v. Dutch, 16 Ill. 286; Miles v. Weston, 60 id. 361; Chicago v. O’Brennan, 65 id. 163; Adams v. Gardner, 78 id. 568; Horne v. Sullivan, 83 id. 30; Chicago West Division Ry. Co. v. Klauber, 9 Bradw. 615; Tomlinson v. Derby, 43 Conn. 562; Taylor v. Monroe, 43 id. 36; Donnell v. Jones, 13 Ala. 500; Baldwin v. Western R. R. Co. 4 Gray, 333.
    "Whenever the damages have not necessarily accrlied from the act complained of, and consequently are not implied by law, then, in order to prevent the surprise on the defendant, which might otherwise ensue on the trial, the plaintiff must, in general, state the particular damages which he has sustained," otherwise he will not be permitted to give evidence of it. 1 Chitty’s Pleading, 397; Sherman v. Dutch, 16 Ill. 289; Olmstead v. Burke, 25 id. 86; Milo v. Weston, 60 id. 361; Chicago v. O’Brennan, 65 id. 163; Adams v. Gardner, 78 id. 568; Horne v. Sullivan, 83 id. 30; Chicago West Division Ry. Co. v. Klauber, 9 Bradw. 615; Tomlinson v. Derby, 43 Conn. 562; Taylor v. Monroe, 43 id. 36; Dunnell v. Jones, 13 Ala. 500; Baldwin v. Western R. R. Co. 4 Gray, 333; Dickinson v. Boyle, 17 Pick. 79; Warner v. Baton, 8 Gray, 379; Brown v. Cumings, 7 Allen, 508; Furlong v. Polleys, 30 Me. 491; Buck v. Hursey, 31 id. 559; Herrick v. Lampham, 10 Johns. 281; De Forrest v. Leete, 16 id. 122; Butler v. Kent, 19 id. 223; Ryson v. Marselle, 1 Hare, (N. J.) 450; Laing v. Colder et al. 8 Pa. St. 479; McDaniel v. Terrill, 1 Nott & McC. 343; Brown v. Gibson, 1 id. 326; Squire v.
      Gould, 14 Weak, 159; Dumont v. Smith, 4 Denio, 319; Ashley v. Harrison, 1 Esp. 47; Browning v. Newman, 1 Strange, 665; Hartley v. Herring, 8 T. R. 130; Odges on Libel and Slander, 317, 318.
    Mr. John T. Lillard, for the appellee:
    Instructions must be based on the evidence, and state the law correctly, which the refused instructions do not. Alexander v. Town of Mt. Sterling, 71 Ill. 368; Smith v. Stevens, 82 id. 554; East St. Louis Packing and Provision Co. v. Hightower, 92 id. 139; Chicago, Burlington and Quincy R. R. Co. v. Dickson, 88 id. 431; Cushing v. Cogswell, 86 id. 62; Germania Fire Ins. Co. v. McKee, 94 id. 494; Bank of Montreal v. Page, 98 id. 109; Stratton v. Central City Horse Ry. Co. 95 id. 25.
    The court was not bound to repeat instructions. Emory v. Hoyt, 46 Ill. 263; City of Bloomington v. Perdue, 99 id. 329.
    The fact that appellee did not go out into the street and around the defective walk, does not show such a want of care on her part as to preclude a recovery. City of Aurora v. Hillman, 90 Ill. 61.
    Each count of the declaration is sufficiently special to admit proof of plaintiff’s occupation and earnings, if such allegation is necessary. Luck v. City of Ripon, 52 Wis. 196; Roberts v. Graham, 6 Wall. 568; Ward v. Smith, 6 id. 578; Ward v. Smith, 11 Price, 19; Briggs v. Dwight, 17 Wend. 71; Sherman v. Dutch, 16 Ill. 283.
    A judgment will not be reversed because the court below admitted improper evidence, if sufficient legal evidence appears in the record to sustain the verdict. Hewitt v. Jones, 72 Ill. 220; Teutonia Life Ins. Co. v. Beck, 74 id. 166; Hudson v. Hodden, 82 id. 265; Vanbrunt v. Singley, 85 id. 281; Schultz v. Lepage, 21 id. 160; Boynton v. Phelps, 52 id. 210 ; Chicago and Northwestern Ry. Co. v. Taylor, 69 id. 461.
    An objection to evidence because it shows a special damage not set out in the declaration, can not be raised for the first time in this court. It must be shown that the same objection was distinctly submitted to the circuit court, for in the circuit court, if specially pointed out, it could be obviated by amendment of the declaration. Rev. Stat. chap. 110, sec. 24, and chap. 7, sec. 1; Indianapolis and St. Louis Ry. Co. v. Estes, 96 Ill. 470; City of Elgin v. Kimball, 90 id. 356; Driver v. Ford, 90 id. 595; Driggers v. Bell, 94 id. 224; Gillespie v. Smith, 29 id. 473; Swift v. Whitney, 20 id. 144; Sargeant v. Kellogg, 5 Gilm. 273; Stone v. Great Western Oil Co. 41 Ill. 94; Buntain v. Bailey, 27 id. 409; Peoria and Oquawka R. R. Co. v. Neill, 16 id. 269; King v. Chicago, Danville and Vincennes R. R. Co. 98 id. 376; Roberts v. Graham, 6 Wall. 578.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The errors assigned are in the refusal of instructions and the admission of evidence. One of the refused instructions asked by defendant was, that if plaintiff knew of the defective condition of the sidewalk, it was her duty to exercise a high degree of care while passing over it. The degree of care which the law required the plaintiff to exercise, was ordinary care, under all the circumstances of the ease. The plaintiff’s knowledge as to the condition of the sidewalk, would be one of such circumstances to be considered by the jury in determining whether there had been the exercise of ordinary care. The court did instruct the jury that the law required plaintiff to show that at the time she sustained the injury complained of she was exercising ordinary care and caution, and that if, by the exercise of such care and caution, she w7ould have avoided the danger, they should find for the defendant. We think the instruction given stated the law upon the subject sufficiently favorable for the defendant, and that, there is no just ground of complaint in not giving the further instruction which was refused.

The tenth refused instruction told the jury, in substance, that the law required the plaintiff to go out into the street and pass around the walk, if she knew it was defective; and the eleventh, that if plaintiff could have gone out into the street and around the defective sidewalk, and if her failure to do so showed a want of ordinary care on her part, the jury should find for the defendant. Clearly, the tenth one could not be laid down as a legal proposition. (See City of Aurora v. Hillman, 90 Ill. 61.) All the law that there was embraced in the eleventh refused instruction was, that a want of ordinary care on plaintiff’s part would preclude her from recovering, and the jury were so informed in an instruction which was given, as already stated. There could be no error in not repeating the instruction. The present case is quite unlike that of City of Centralia v. Krouse, 64 Ill. 19, where the sidewalk was in a palpably dangerous condition. The defect here ivas, that there were loose boards in the wralk, and plaintiff was injured by the turning up of a loose board, which caused her to fall.

On the trial, against the objection of the defendant, the court permitted the plaintiff to testify that she had taught school at §50 per month; also, that at the time of receiving the injury complained of, she and another lady were making arrangements to teach a select school, but on account of the injury she was compelled to give it up. The admission of this evidence is complained of as error, as being evidence of special damages, which should not have been received under the general averment in the declaration. The witness stated, without objection, that she had followed the business of teaching school, and that she did not suppose that she could prosecute that business. The allegation in the declaration as to special damages in the above respect is, in the first count, that plaintiff was hindered from transacting her business and affairs, and deprived of large gains and profits which she otherwise would have earned; and in the second count, that the injuries received had a permanent effect upon her personal hodily strength and ability to make a living, and that -she had been rendered unable to earn or make ■ for herself a living, and had been deprived of large gains and profits which she otherwise would have earned. We think it was admissible, under these averments in the declaration, to show what was the business of the plaintiff, and that she had been disabled from, pursuing it by reason of her injuries. The testimony objected to tended to no more than this, and to give the jury some idea of the wages of school teaching. Any objection there might be in this last respect from the witness' stating 'what she had received, instead of what was the usual compensation for school teaching, was, we think, sufficiently removed by the observation of plaintiff’s counsel, when, upon defendant’s counsel making objection to the introduction into the record of plaintiff’s statement of the amount she received, plaintiff’s counsel said: “If he objects, strike it out.” The testimony was not as to the loss of the profits of a particular engagement for school teaching, but only that arrangements which were being made to teach a school were compelled to be given up, without any intimation as to the amount of the compensation under the arrangement, had it been perfected. The evidence went to show no more than an actual interruption of the business of school teaching. Had it gone to show the loss of the profits of a particular engagement which had been made for teaching school,' another question would have been presented,— the one appearing in City of Chicago v. O’Brennan, 65 Ill. 160, a case much relied upon by appellant’s counsel, where, in a similar action for injuries sustained, it was held error in the' court below to permit the plaintiff to give in evidence the fact of particular engagements by him to lecture, and the probable gains thereof, and that the plaintiff was prevented from fulfilling them by reason of the injury, and his estimates of the special loss thereby sustained. It was held that these special damages should have been set out in the declaration. The essential difference between that case and the present is obvious.

The cases of Tomlinson v. Derby, 43 Conn. 562, and Taylor v. Monroe, id. 43, seem opposed to the view we take, but we find it supported by the case of Luck v. City of Ripon, 52 Wis. 196. We prefer to follow the authority of the latter case. The judgment must he affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Jane H. Galloway v. John Garland et al.

      Filed at Springfield September 28, 1882.

    Specific performance—the alleged contract must be proven. In order to entitle a person to the specific performance of an alleged contract to convey land, the contract must be proven. The mere expression of an intention to make a gift of the land will not suffice.
    Writ of Error to the Circuit Court of Scott county; the Hon. Cyrus Epler, Judge, presiding.
    Mr. James M. Biggs, for the plaintiff in error:
    The rule is familiar that when there is great delay in filing a bill, by a party claiming specific performance, no relief will he granted. McLaurie v. Barnes, 72 Ill. 77; Alexander v. Hoffman, 70 id. 119; Brink v. Steadman, id. 243.
    That Thomas G. Garland was a minor, is no excuse for the delay in asserting a right to a specific performance. Walker v. Douglas, 70 Ill. 456.
    The fact of the payment of the taxes, by the vendor, after the alleged sale, for a series of years, is a strong circumstance against the party seeking to enforce its specific performance against the vendor. Goss v. Jones, 73 Ill. 509; Worth v. Worth, 84 id. 444; McCormick v. Sage, 87 id. 490.
    It must be made clearly to appear that the contract, when verbal, was made, and its terms must.be clearly proven, and it must be-shown, that its terms have been relied on and performed by the party seeking its specific performance. Hartwell v. Block, 48 Ill. 304.
    A decree for specific performance is not a matter of course. Whether such relief shall be granted or not, rests in the discretion of the chancellor, and it will only be decreed upon clear proof of a right" to it. Race v. Weston, 86 Ill. 95; Alexander v. Hoffman, 70 id. 119.
   Mr. Justice Scholfield

delivered the opinion of .the Court:

This was a bill for specific performance, by John Garland, against Jane H. Galloway and others. The contract of wddch specific performance is sought, is thus set out in the bill: In 1868, John Galloway, step-father of John Garland, then in life, since deceased, owned lot 1, in Watts’ addition to' Winchester, Illinois, which was unimproved, and then agreed with complainant that “if complainant would take possession--of and improve said lot, and build upon said lot a homestead or building, and improve said lot, he, said Galloway, would deed and convey said lot to one Thomas Garland, a minor son of complainant, to be held by said Thomas Garland for complainant and his family. ” It is alleged that in consideration of such agreement, John Garland took possession of the lot in 1868," fenced and improved it, and built a house on it, and expended thereon $700.- The answer of Jane H. Galloway puts in issue all the material allegations óf the bill. The court below decreed in accordance with the prayer of the bill, and Jane- H. Galloway prosecutes the present writ'of error thereon.

'We have carefully examined the evidence, and are of opinion that it does not authorize the decree. There is not a particle of evidence, that we have been able to discover, that John Galloway and John Garland ever had any agreement whatever with regard to the conveyance of the lot in question, nor is there any evidence that John Galloway agreed to convey the lot to Thomas Garland, to be held by him for John Garland and his family. There is evidence that Galloway said he was going to deed the lot to Thomas Garland, but, so far as appears, this was the mere expression of an intention to make a gift. There is no proof that John.Garland expended money or bestowed labor upon the faith of it, or, indeed, that he ever knew that Galloway had expressed such an intention. The evidence shows, undoubtedly, that John Garland moved his family upon this lot, and made some improvements thereon. A house was bought and removed on the lot, but this’ seems to have been paid for by Galloway. So, also, Galloway paid for putting a foundation under .the house and building a flue.

This bill was not filed until August, 1879,^-eleven years' after the making of the alleged contract, and three years after the death of John Galloway. There is no satisfactory explanation of this long delay. During the lifetime of John Galloway he paid all the taxes on the property, and the only taxes paid by complainant, or his son Thomas, were paid about the time of the filing of the bill. This, and the long and unexplained delay, we. regard as strong circumstances tending to rebut the idea that there ever was any actual agreement whereby John Galloway bound himself to convey this lot, as alleged.

Being of opinion that the evidence does not authorize the decree, it is reversed, and the cause remanded.

Decree reversed.


text:
    Mary Edwards v. John Schoeneman.

      Filed at Springfield September 28,1882.

      1. Married women—power to convey their land or to give a mortgage thereon. Under the acts of 1869, and section 18 of the act of 1872, relating to conveyances, a married woman might, by joining with her husband in the execution of a deed or mortgage relating to the sale or disposition of her real estate, bind and conclude herself, the same as a feme sole.

    2. Section 9, chap. 68, Kev. Stat. 1874, confers upon a married woman the power to sell and convey her lands in the same manner that her husband can sell and convey property belonging to him. By this section a married woman is placed upon a perfect equality with her husband, so far as the conveyance or mortgaging of her lan,ds is concerned.
    3. Mistake—in deed by married woman—may be corrected in chancery. Since the passage of the act of 1869, in regard to conveyances,- a court of equity may correct a mistake in the description of the property in a deed or mortgage of a married woman’s land.
    4. Same—proof to authorise correction. In a mortgage by a husband and wife of the lands of- the wife, the property was described as lots 9, 10, 11 and 12, in block 6, in E. Hes’ addition to the city of Springfield.' In a second mortgage between the same parties, the property was described the same as in the first, except that the block was omitted, but in the habendum clause it was stated, “that said land is free from all incumbrance, except a former mortgage to same party.” On bill to reform the second mortgage and to foreclose, the proof showed that the wife (mortgagor) had executed but two mortgages, and that she owned no property in E. lies’ addition but that described in the first mortgage: Held, that thesé facts, in connection with the statement in the second mortgage quoted, made it plain that the intention was to mortgage the same land by the second mortgage as in the first one. ,
    5. Certificate of acknoweedg-ment—of its sufficiency. Although the certificate of the officer to the acknowledgment of a deed or mortgage by a husband and wife may not be in the precise form given by the statute, if it contains all the substantial requirements of the statute it will be sufficient.
    6. Consideration—mortgage of wife’s property to secwre husband’s debt. The husband’s indebtedness is a sufficient consideration for a mortgage given by him and -his wife on her separate property to secure his debt.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal .from the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.
    The certificate of the acknowledgment of the second mortgage referred to in the opinion of the court, after the venue, is as follows.:
    “Before me, the undersigned notary public within and for the county aforesaid, came Mary Edwards and Charles Ed-: wards, who are personally known to me as the .real persons by whom and in whose names the same is proposed to be acknowledged, and who there severally acknowledged their signature thereto to be then- free and voluntary act and deed, for the purpose of waiving and releasing all right,.title and interest in and to said land by virtue of the homestead exemption laws of this State, and for all other purposes therein expressed; and the said Mary Edwards, being by me first examined, separate and apart from her said husband, and the contents of said conveyance being first made known to her, acknowledged that freely and voluntarily, without any compulsion or coercion from her said husband, she executed the same, and forever released and waived all right, interest and title to said real estate, by virtue of the homestead exemption laws of said State, relinquished all her right to the claims of dower in and to the lands and tenements in said conveyance described, and sold, transferred and conveyed all her title in fee simple, or right by inheritance, in and to the real estate aforesaid, and that she does not wish to retract.
    “Given under my hand and notarial seal, ” etc.
    Mr. N. W. Edwards, for the appellant:
    The several acts in force when this mortgage was executed would not make a mortgage of a married woman good, if given to secure any liability which she had not the legal capacity to make at that time. See McDonald v. Mobile Life Ins. Co. 56 Ala. 469; Wilson & Huntington v. Jones, 46 Md. 358.
    The agreement to charge the separate estate of a married woman must be included in the original consideration out of which the indebtedness is claimed to arise. Manhattan B. and M. Co. v. Thompson, 58 N. Y. 82; Maxon v. Scott, 55 id. 247; Corn Exchange Ins. Co. v. Babcock, 42 id. 614; Eisenlud v. Snyder et al. 71 Ill. 47; Gorman v. Cruger, 7 Hun, 61; 69 N. Y. 90.
    Under the act of 1861, giving the wife a separate estate, she had only the disposing capacity which- the common law or some enabling statute allowed her. Emert v. Hayes, 89 Ill. 16; Bressler v. Kent, 61 id. 429.
    By the common law she could make no obligatory contract for the sale of her separate property, without express power given her. Brown v. Fifield, 4 Mich. 326; Story on Contracts, sec. 83; Russell v. Rumsay et al. 35 Ill. 371; Hogan v. Hogan, 89 id. 429.
    The wife can not make a valid mortgage of her separate estate as a security for the debt of her husband, if the debt was not contracted on the credit of her separate estate. Williard v. Eastham, 15 Gray, 328; Perkins v. Elliott, 23 N. J. Eq. 525; Wilson et al. v. Cheatman et al. 45 Ala. 337; Dawson v. Lanier, 51 id. 321; Doyle et al. v. Kelly et al. 75 Ill. 574; Story’s Eq. Jur. secs. 473, 474, 480-490.
    A court of equity will not enforce a gratuitous undertaking of a wife to subject her estate to the payment of her husband’s debts. White's Appeal, 36 Pa. St. 134; Ledlie v. Brooman, 40 Barb. 113.
    A note and mortgage given for a preexisting debt of her husband are void. Wilhelm v. Schmidt et al. 84 Ill. 183; Schumpert v. Dillard, Pierson & Co. 55 Miss. 361; Bartlett v. Bartlett, 4 Allen, 440; Athol Machine Co. v. Fuller, 107 Mass. 439; Thomas v. Lowry, 60 Ill. 513; Taylor v. Boardman, 92 id. 566.
    To charge a'married: woman, under the act of 1861 the contract must relate to her separate property. This is the extent of her power to contract. Garland et al. v. Pence, 1 Bradw. 111; Conklin v. Doul et al. 67 Ill. 355; Wilson et al. v. Jones, 46 Md. 349; Carpenter v. Mitchell, 50 Ill. 470; Williams v. Hugunin, 69 id. 219.
    That a married woman’s deed can not be reformed for mistake in description of property, or for imperfect description, counsel cited Purcell v. Gorham et ux. 17 Ohio, 124; Carr v. Williams, 10 id. 309; Oglesby Coal Co. v. Pasco, 79 Ill. 170; Moulton et ux. v. Hurd, 20 id. 141; Board of Trustees v. Davidson, 65 id. 126; Russell v. Rumsey et al. 35 id. 376; Hogan v. Hogan, 89 id. 427; Hawley v. Twyan, 29 Gratt. 730.
    The acknowledgment as to the wife is not sufficient, and renders the mortgage of no validity. Lindley v. Smith, 58 Ill. 250; Russell v. Rumsey et al. 35 id. 370; Jackson v. Ramsay, 15 id. 248; Murphy v. Williamson, 85 id. 149.
    .Messrs. Palmers, Piobinson & Shutt, for the appellee :
    The statute of 1869, in force when these mortgages were executed, gave a married woman the power, by joining with her husband, to mortgage and convey her separate real estate. Laws of 1869, 359; Laws of 1872, Gross’ Stat. vol. 2, p. 53, sec. 18; Barnes v. Ehrman, 74 Ill. 402; Hogan v. Hogan, 89 id. 431; Marsten et al. v. Brittenham, 76 id. 611.
    Since the act of 1869 the deed of a married woman conveying her separate estate may be reformed for a mistake, the same as if she were sole. Knox v. Brady, 74 Ill. 475.
    Under that act a married woman could convey as a feme sole, (Terry v. Eureka College, 70 Ill. 237,) and under it a wife might execute a mortgage made years before by her husband. Styles v. Probst, 59 Ill. 382.

      The proof was sufficient to authorize the reformation of the second mortgage for a mistake. Clark v. Powers, 45 Ill. 283; Colcord v. Alexander, 67 id. 581; Smith v. Crawford, 81 id. 295; Cornwell v. Cornwell, 91 id. 414; Dougherty v. Purdy, 18 id. 208. ’
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by John Schoeneman, to foreclose two mortgages executed by Charles Edwards, and Mary Edwards, his wife, to secure certain debts of the husband. The first mortgage bears date January 1, 1873, but was not acknowledged until September 27, 1873. The property is described in the mortgage as lots 9, 10, 11 and 12, in block 6, in E. lies’ second addition to the city of Springfield. The second mortgage was executed and acknowledged August 13, 1877, and the description of the property is the same as that contained in the first mortgage, except the block is omitted. In the habendum, however, we find the following: “That said land is free from all incumbrance, except a former mortgage to same party. ” The property described in the mortgages was owned by Mary Edwards, which she had acquired from her father-in-law.

Various objections have been urged to the validity of these mortgages, and we have given them as much consideration as their importance demands, and will give the conclusions we have reached in regard to so many of them as are material to a proper decision of the case.

It is first urged that appellant, being a married woman, had no power to mortgage her property' to pay her husband’s debts. The solution of this question depends upon the law in force at the time the mortgages were executed. The first mortgage, having been executed and acknowledged in 1873, will be controlled by “An act concerning conveyances, ” in force July 1, 1872, (Laws of 1872, page 282,) the 18th section of which declares: “Any married woman, being above the age of eighteen years, joining with her husband in the execution of any deed, mortgage, conveyance, power of attorney, or other writing of or relating to the sale, conveyance, or other disposition of her lands or real estate, or any interest therein, shall be bound and concluded by - the same in respect to her right, title, claim or interest in such estate, as if she were sole.” Section 19 provides that the "acknowledgment may be the same as if she was sole. This act is in substance the same as an act approved March 27, 1869. (Laws of 1869, page 359.) Indeed, it is almost a literal copy of the act of 1869. Under the last named act this court held, in a number of cases, that a married woman might, by joining with her husband in the execution of a deed or mortgage relating to the sale or disposition of her real estate, bind and conclude 'herself, the same as a feme sole. Hogan v. Hogan, 89 Ill. 427, is a case which may be regarded as conclusive on the question. We have placed the same construction on the act of 1872, supra, that we did on the act of 1869, as may be seen by an examination of Barnes v. Ehrman, 74 Ill. 402. Without, therefore, going back to inquire what the rights and powers of a married woman in regard to a sale or disposition of her real estate were at common law, or even under the statute of 1861, there can be no doubt in regard to the right of appellant to mortgage her lands, as she did in this instance, by joining with her husband in the execution of the mortgage, as provided by the act of 1872.

As respects the second mortgage, which was executed in 1877, the act of 1872,' cited above, was in force, having been incorporated in the revision of 1874, and in addition, sec. 9, chap. 68, Eev. Stat. 1874, page 577, which confer upon a married woman the power to sell and convey her lands in the same manner that her husband can property belonging to him. Under the act of 1872 it was essential to the validity of a deed or mortgage that the husband should join with the wife when she attempted to convey her real property, but under the provision of section 9, which was incorporated in the revision of 1874, this obstacle was removed, and a married woman was placed upon a perfect equality with her husband, in so far as the conveyance of her lands was'concerned.

But it is sfid the second mortgage is void in consequence of an error in the description of the property. ' We do not think the error in the description vitiates the mortgage, when it is apparent that a mistake has been made in describing the property. A court of equity may correct the mistake. The fact that the mortgagor was a married woman, does not -militate against this view. .Prior to the passage of the act of 1869, amending the act of 1845, in regard to conveyances, this.court had held in a number of cases that the deed of a married woman could not be reformed; but since the passage of the act of 1869 a different rule has prevailed in cases where the conveyance relates to the property of the wife. Knox v. Brady, 74 Ill. 476, is a ease in point upon this question. It appears that appellant had executed but two mortgages—that she owned no property in E. lies’ addition but that described in the first mortgage. These facts, considered in connection with the statement in the second mortgage, “that said land is free from all incumbrance, except a former mortgage to the same party, ” make it plain that the intention was to mortgage the same land in and by the second mortgage that was embraced in the first one.

Objection has been made to the form of the acknowledgment of the mortgages. The certificate of the officer may not be in the precise form specified in section 26, of chapter 30, entitled “Conveyances,” but it contains all the substantial requirements of the statute, and we regard it sufficient.

It is also said no consideration passed from the mortgagee to appellant, who owned the lands. Appellant’s husband was indebted to appellee, and as she saw proper to mortgage her own property to secure the' payment of that indebtedness, such indebtedness formed a valid consideration for the mortgage.

Some other questions of a technical character have been raised, but we perceive no substantial merits in them.

As no error appears in the record, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    The People ex rel. Danville, Olney & Ohio River Railroad Co. v. The Town of Granville et al.

      Filed at Springfield September 28, 1882.

    1. Municipal bonds—limitation—time within which to enforce the issuing of municipal bonds voted to railroads—constitutionality of the acts in relation thereto. The act of March 17, 1874, and that of May 29, 1877, amendatory of the former, which provide that the liability of all counties, cities, townships, towns or precincts which have voted aid, donations or subscription to the capital stock of any railroad company, should cease and determine upon and after the first day of July, 1880, and that no bonds should be issued, or stock subscribed, to any such railroad company after that date, ux>on account of, or upon the authority of, any previous vote, are not obnoxious to the objection that they impair the obligation of contracts. They are but statutes of limitation, prescribing and limiting the reasonable time within which the remedy for enforcing the issue of bonds to aid in the building of any railroad, previously voted, shall be pursued.
    2. A town, on July 24,1869, voted a subscription of §30,000 to a railroad, to be paid by the issue of its bonds, and the line of the road was permanently located through said town October 15, 1875, and the road constructed through the same on August 1, 1880, and on April 12, 1870, the town did subscribe to the stock of the company to the amount of $10,000, $6000 of which was paid by the issue of the bonds of the town, and on November 1, 1871, the balance of the bonds voted were deposited with a trustee,'but were afterward withdrawn, by the consent of the company, in 1875, and destroyed, the supervisor and town clerk giving their obligation that the town should execute to the company bonds to the amount of $24,000 upon the completion of its road. Application was made for a mandamus, in 1881, to compel the issue of such bonds: Held, that the case came within the express provisions of the acts of 1874 and 1877, limiting the time for the enforcement of such liabilities.
    3. Such-acts apply as well to the remedy to enforce the issue of bonds on a subscription previously made, as to a proceeding to compel.the subscription itself. In the case of a subscription, the remedy remains to compel the issue of bonds in payment of the same; but the statute requires this remedy to be pursued within the time limited, and if this is not done, the liability to issue the bonds ceases.
    4. Prior to the passage of the act of 1874, bonds of a township, voted in aid of a railroad company, were deposited in the hands of a trustee, to be delivered to the company at a subsequent time, upon certain conditions, according to the proviso in that act. But in 1875 the bonds were given up to the town by the assent of the company, and destroyed, so that at the passage of the amendatory act of 1877, or afterward, there was no such deposit with a trustee: Held, that the case would not fall within the exceptions in a'similar proviso in the latter act. And the fact that on the return of the bonds the supervisor and clerk of the town gave their sealed obligation to the railroad company that the town, upon the completion of the road, should execute to the company bonds to the amount of $24,000, which remained with the trustee, will not bring the case within such exception, as such obligation was but the individual one of the supervisor and clerk.
    5. Statute—expressing subject of bill in title. The title to the act of 1874, to limit the time counties, etc., “shall be liable and holden' to issue aid for the building any railroad,” etc., sufficiently expresses the subject of the act which embraces aid, donations or subscriptions voted, subscription being fully covered and embraced in the word aid used in the title.
    6. Same—whether special. The acts of March 17, 1874, and May 29, 1877, limiting the time for the enforcement of corporate liability on subscriptions, etc., voted in aid of railroads, are not obnoxious to the objection of being special legislation, in enacting special limitations for the benefit of particular corporations, and applicable to a single class of municipal contracts.
    This is an original proceeding, commenced in this court by the relator, against the town of Granville, G. F. Morey, supervisor, and W. H. Kibbler, clerk of said town, to compel the issue of the bonds of said town to the relator. The principal facts appear in the opinion.
    Messrs. Palmees, Robinson & Shutt, for the relator:
    The .subscription of the town was voted by nearly an unanimous vote, át an election duly called in pursuance of" the provisions in the charter of the relator company. All the issues of fact are found in favor of the relator.
    The canvassers were right in treating votes for a tax as being substantially “for subscription.” Decker v. Hughes, 68 Ill. 41; Detroit and Eel River R. R. Co. v. Bears, 39 Ind. 598; State v. Bissell, 4 Greene, (Iowa,) 328.
    Forms are not essential—the intention of the voters should govern. People v. Hilliard, 29 Ill. 425; Talkington v. Turner, 71 id. 236; Clark v. Robinson, 88 id. 500.
    Mr. Benson Wood, and Mr. James W. Gibson, for the respondents:
    It was incumbent upon the town officers to determine, before making the subscription and issuing the bonds, first, whether the preliminary conditions had been complied with. Jackson County v. Brush, 77 Ill. 64; Humboldt v. Long, 92 U. S. 642; Marcy v. Owego, id. 639; Coloma v. Eaves, id. 49.
    The conditions of subscription and issuing bonds were made by the voters, and the town officers had no right to disregard them. People v. Waynesville, 88 Ill. 476; Shaeffer v. Bonham, 95 id. 381; Falconer et al. v. B. and J. R. R. Co. 69 N. Y. 497.
    Before subscription is made, no obligation exists between the parties. People ex rel. v. County of Tazewell, 22 Ill. 156.
    When the constitution of 1870 was adopted, no valid subscription having been made, the power to subscribe and to issue bonds was absolutely taken away. Falconer v. B. and J. R. R. Co. 14 N. Y. 507; Falconer v. B. and J. R. R. Co. 69 id. 491; County of Moultrie v. Savings Bank, 92 U. S. 633.
    The remedy sought is. barred by the act of limitation of March 17, 1874. ' The conditions not having been performed before that act went into effect, the relator had no vested right, and there was no obligation of contract to be impaired by that statute. McAllister v. Smith, 17 Ill. 328; Matthias v. Cook, 31 id. 33.

      Municipal bonds in aid of a railroad corporation, since the constitution of 1870 went into effect, axe prima facie invalid, and the burden of proof is upon the party affirming their validity. Town of Prairie v. Lloyd, 97 Ill. 181; Toiun of Middleport v. Ætna Life Ins. Co. 82 id. 563; Jackson County v. Brush, 77 id. 59.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Various objections are made by the defendants against the granting of the prayer of the petition for a writ of mandamus to compel the execution and delivery to the petitioner of $24,000 of bonds of the town of Granville. Without the notice of any other of the reasons urged, we are of opinion that the acts of the General Assembly, approved March 17, 1874, in force July 1, 1874, (Rev. Stat. 1874, p. 797,) and of May 29, 1877, in force July 1, 1877, (Laws 1877, p. 157,) are ground sufficient for the denial of the writ. The first named act is entitled “An act to limit and determine the time for which counties, cities, townships, towns and precincts in this State shall be liable and holden to issue aid for the building of any railroad, in pursuance of any vote taken in conformity to the laws of this State, ” and enacts, “that the liability of all counties, cities, townships, towns or precincts which have voted aid, donations or subscriptions to the capital stock of or to any railroad company, in conformity to the laws of this State, for the building of, or in aid of the building of, any railroad to, into, through or near such county, city, township, town or precinct, to issue such aid voted, shall cease and determine upon and after the expiration of three years from and after the first day of July next, and no bonds shall be issued or stock subscribed to any such railroad company, after such time, upon account of, or upon the authority of, such vote. ” The last one of the above named acts purports to be amendatory of the former, and limits the time of issuing such aid to July 1, 1880. The vote for subscription to the stock of the relator company was given at an election held on July 24, 1869, the subscription, to be paid by the issue of bonds of the township, the bonds to be payable to the company, when the line of its railroad should be permanently located through the township. The act of incorporation of the company, in pursuance of which the subscription was voted, provided, that if the vote should be for subscription, it should then be the duty of the supervisor and clerk of the township to subscribe, without unnecessary delay, upon the request of the corporation, for stock in the corporation to the amount voted for, and to issue and deliver to the corporation the same amount as the stock subscribed, of the bonds of the township.

This cause was certified from this court to the circuit court of Crawford county, for the trial of the issues of fact. ' Such trial was had, and resulted in numerous findings of fact, which are certified to this court. Among such findings are, that the line of the railroad was permanently located through the town of Granville, October 15, 1875; that the railroad was constructed through said township August 1, 1880; that on April 12, 1870, the town of Granville did subscribe for stock in said railroad company to the amount of $10,000. The petition for mandamus was filed in this court at the January term, 1881, January 25, and the summons issued February 8, 1881, returnable to the June term, 1881.

We do not see why this case does not come within the express provision of the enactment of 1877, that the liability of any township which had voted a subscription to the capital stock of any railroad company should cease and determine upon and after the first day of.July, 1880, and that no bonds should be issued or stock subscribed to' any such railroad company after that date, upon account of, or upon the authority of, such vote. It is answered to this, that these acts of March 17, 1874, and May 29, 1877, apply only to cases where the power to issue aid to railroad companies rests merely in the law, and nothing has been done to vest an interest in the corporation in whose behalf the power was created; that an interest vested before the passage of the acts is not within their purview; that in the present case there had been a valid contract of subscription to the stock, made by the supervisor and town clerk, in pursuance of the vote, previous to the passage of the acts, and so the acts can have no application to the case. It is true there had been a formal subscription made of $10,000 to the stock upon the books of the company, and only $6000 of bonds ever issued, and it is contended that there was, on April 9, 1870, what was equivalent to a subscription by the supervisor and town clerk of the remaining $20,000 of the amount of $30,000 voted to be subscribed. Conceding that such subscription of stock had in fact been made, we find therein no reason for denying the applicability of the acts, or their full effect in defence against this proceeding. There is certainly nothing in the language of the acts to countenance the idea of their not applying to cases where subscriptions of stock had been made. They contain several provisos, but no one of this kind. In case of a subscription made merely without the issue of any bonds, there would remain the remedy to compel the issue of bonds in payment of the subscription. But the remedy to enforce the issuing of bonds, the statutes require • to be pursued within the limited time named. If not, then the liability to issue the bonds shall cease and determine after that time, and no bonds shall be issued thereafter. We do not consider the acts obnoxious to the objection that they impair the obligation of contracts. We regard them but as statutes of limitation, prescribing and limiting the reasonable time within which the remedy for enforcing the issue of. bonds to aid in the building of any railroad, previously voted, shall be pursued.

It is claimed that the case comes within one of the provisos to the act, that it is not to apply where such aid shall have been deposited with any trustee, upon written or printed conditions, to be delivered to the- railroad company at some future time. ■ The bonds of the town, to the amount of the stock voted for, were deposited in the hands of a trustee at the time of the passage of the act of 1874, they having been so deposited on November 1, 1871; but they appear to have been withdrawn, and returned to the town and destroyed, with the assent of .the railroad company, in 1875. At the time of the passage of the act of 1877, or afterward, there was no deposit of such bonds with a trustee, and the case would not come within "the like proviso of that act.

After the return of said bonds to the town, the supervisor and town clerk, on August 28, 1875, executed their instrument, under seal, to the railroad company, agreeing that upon the completion of the construction of the railroad through the town of Granville, the town should execute to the railroad company a series of bonds, to the amount of $24,000. It is said by relator’s counsel that this instrument was executed upon the return of the bonds to the town, as aforenamed, and of the same date, and that this instrument remains on deposit with the trustee, and so the rights of the relator are saved by said proviso. We do not find that the facts last stated appear by the record; but even if they did, they would not, we consider, bring the case within the proviso. This instrument was but the individual obligation of the supervisor and town clerk that the town, upon the contingency named, should issue its bonds, and can not be considered as the bonds or “aid” of the town deposited with a trustee, upon Written or printed conditions, for their delivery at a future time.

We find nothing in the objection that, as applied to subscriptions, the act is void because the subject is not expressed in the title, that being to limit the time for which counties, etc., shall be liable and holden to issue aid only for the building of any railroad, etc., no mention being made of subscriptions in the title. We regard subscriptions as fully covered and embraced by the word “aid” used in the title. Subscription to stock is one form of aid. Nor do we consider the acts in question objectionable as special legislation, in creating, as is urged, special limitations for the benefit of particular corporations, and applicable only to a single class of municipal contracts.

The writ of mandamus must be refused.

Mandamus denied.


text:
    Washington Hesing v. The Attorney General et al.

      Filed at Springfield September 28,1882.

    1. Appeals—only a party to the suit can appeal. The right of appeal is purely statutory, and there is no statute in this State authorizing an appeal by a person not a party to the suit.
    2. Same—in the case of an information, who may appeal. Where an information on the relation of a person is dismissed by the Attorney General, or on his motion it is dismissed, without any judgment against the relator for costs, and subsequently a motion by the relator to set aside the order of dismissal, and for the court to direct that the cause be prosecuted, is overruled at his costs, no appeal lies in favor of the relator from the orders of the court, for the reason he is no party complainant or defendant, and is not affected personally by the dismissal.
    3. Same—what is a franchise within the statute relating to appeals. The word “franchise,” as used in the Appellate Oourt act (sec. 8) in relation to appeals directly from the trial court to this court, does not include liberty or privilege merely, but is there used in the restricted sense of a special privilege conferred by grant from the State or sovereign power, as being something not belonging to the citizen of common right. No one can have a franchise to be a relator, and to cause a-prosecution to be carried on in an information.
    4. Ineokmation—by whom it may be controlled. By the common law the relator in an information can not take any step in the cause in his own name, and independent of the Attorney General. The Attorney General is the only person whom the court will recognize, and he may dismiss the proceeding, if he thinks proper, in the discharge of his official duty.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. Edward Roby, for the appellant.
    Mr. Wm. C. Goudy, Mr. Alex. McCoy, and Mr. Francis Adams, for the appellees. •
   Mr. Justice Scholfield

delivered the opinion of the Court:

On the 5th of April, 1882, the Attorney General filed in the office of the clerk of the Superior Court of Cook county an information on the relation of Washington Hesing, against John R. Bensley, the Board of Trade of the city of Chicago, and the city of Chicago, praying that proceedings under a certain ordinance of said city in relation to the vacation of a particularly described portion of La Salle street, in said city, be enjoined, etc. Summons was issued and served, and two days after the filing of the information,—that is, on the 7th of April,—the Attorney General appeared in said Superior Court and withdrew his name from the information, and asked that the suit be dismissed. The court thereupon entered a decree dismissing the suit, but without directing that costs be taxed against the relator. Ten days after-wards,—that is, on the 17th of «April,—Washington Hesing appeared in court, .and moved that the decree dismissing the suit be set aside, and that the court direct that the cause be prosecuted. This motion the court overruled, and ordered that Hesing pay the costs of the motion, and Hesing thereupon prayed an" appeal to this court, and filed bond therefor. Counsel for appellees move to dismiss the appeal for want of jurisdiction in this court to hear the same.

This motion must be sustained. Hesing was neither complainant nor defendant in the information, and no decree affecting him personally was rendered upon the dismissal thereof. His being relator did not convert a purely public suit into a private one, and entitle him, as against the Attorney General, to prevent its dismissal. No such right is conferred by any statute to which our attention has been directed, and at common law, where the Attorney General proceeded on the information of a relator who sustained and directed the suit, the relator could not take any step in the cause in his own name, and independent of the Attorney General. 1 Daniell’s Chancery Practice, (Perkins’ ed.) 11, 12. That author cites, in support of this position, Attorney General v. Wright, 3 Beavan, 447, (43 Eng. Chancery, 447,) and Attorney General v. Barker, 4 M. & C. 262. In the first named case, notice of motion was given on behalf of a relator, and an objection was made that it ought to have been on behalf of the Attorney General, and Lord Langdale decided that the notice was irregular, and said, “that relators should know that they are not parties to informations, and have no right, of their own authority, to make any application to the court. The Attorney General is the only person whom the court recognizes in such eases.” In the latter ease an information was filed, and Lord Cottenham refused to hear the relator in person on behalf of the Attorney General.

In Attorney General v. Ironmongers Company, 2 Beavan, (17 Eng. Chancery,) 314, *313, information was filed by the Attorney General on the relation of a private party, for the purpose of having a certain fund devised, applied to charitable purposes. On the argument of the case, the Attorney General offered to appear for the trustees of a particular charity, but the Master of the Bolls, Lord Langdale, refused to permit him to do so. Among other things, in subsequently commenting upon the Attorney General’s relation to the case, he said: “The suit is the suit of the Attorney General, and if he should desire the information to be dismissed, the court must dismiss it accordingly, and it is for him, in the exercise of his public duty, to determine whether he will proceed at • all, and if so, in what manner. ”

The right of appeal is purely statutory, and no statute exists, of which” we are aware, that authorizes an appeal by a person not axparty to the suit.

If it shall, however, be conceded that Hesing had the right to appeal from the decision on his motion (which we shall not now discuss), there would still remain the question whether that appeal must be to the Appellate Court, or does it lie to this court. Hesing’s counsel, with much ability, ingenuity and elaboration, argue that he has a franchise to be a relator, and to cause the prosecution to bp carried on in such cases, and that, therefore, he has the right of appeal direct to this court, under section 8 of the Appellate Court act. (Pub. Laws of 18.77, 70, 71.) It may be remarked, in passing, that his interest as one of" the great public—the people of the State (and he claims no other)—is precisely the same in this case, and in all others of a kindred eharacter, that it is in every instance of the violation of the criminal or penal law. He may file a preliminary affidavit before a justice of the peace that a crime has been committed. He may appear before the grand jury of the proper county and inform that body that a crime has been committed, and furnish the names of witnesses; but if the justice of ■ the peace refuse to issue his warrant, or the grand jury decline to indict, he can not appeal to a higher tribunal, or institute any suit in his own name.- His franchise, using the word in the sense of “liberty, ” for which counsel contend, is not to prosecute personally, nor as an individual to control and carry on public prosecutions in the name of the People, but to give information,—to make complaint through the proper officers,—and thereby alone to cause prosecutions to be instituted and carried on through the regularly defined channels, and by the legally constituted agencies and instrumentalities.

In Board of Trade v. The People, 91 Ill. 80, we held that the word “franchise,” as used in the Appellate Court act, supra, does not include liberty or privilege merely, but that it is there used in the restricted sense of a Special privilege conferred by grant from the State or sovereign power, as being something not belonging to the citizen of common right.

There being no other ground claimed than that a franchise is involved, which would authorize an appeal direct to this court, it follows that the appeal must be dismissed. It should have been taken, if maintainable at all, to the Appellate Court of the proper district.

Appeal dismissed.

Mr. Justice Sheldon took no part in the decision of this case.