text:
    The Town of Kankakee v. The Kankakee and Indiana Railroad Company et al.

      Piled at Ottawa November 14, 1885.

    1. Suit in the name of a town—instituted without authority—dismissal for that cause. If a bill in chancery be brought in the name of a town without authority of the electors given at a town meeting, the court may properly dismiss the same on the motion of the defendants,—and this the court may do on its own motion, when its attention is called to the fact that the suit is being prosecuted without lawful authority.
    2. Same—by whom such suit may be authorized. Under our system of township organization there is no officer or board representing the corporate authority of a town. The electors alone represent it, and they can do so only through town meetings. Therefore, neither the supervisor nor the board of town auditors can lawfully authorize a suit in chancery to be brought in the corporate name of their town, or any other action except in the cases named in the statute.
    3. Injunction—to prevent invasion of the .rights of a town—and at whose instance. It is probable that in extreme cases of threatened invasion or destruction of the property rights of a town, any tax-payer who might thereby be affected in the burden of taxation may prevent such wrong by injunction.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. Franklin Blades, Judge, presiding.
    A bill in chancery, in the name of the town of Kankakee as complainant, was filed in the office of the clerk of the circuit court of Kankakee county, against the Kankakee and Indiana Railroad Company and others. The substance of the allegations were, that in 1871, the town of Kankakee took $30,000 in the capital stock of the Kankakee and Indiana' Railroad Company, which subsequently built a road from Kankakee to St. Anne, in said county; that the Cincinnati, Lafayette and Chicago Railroad Company had built a road from Lafayette to St. Anne, and in 1872 the two became consolidated, adopting the name of the last company as the name of their consolidate!! company; that this consolidated company operated this line from Kankakee to St. Anne and Lafayette, from 1872, for several years, when it turned it over to the Cincinnati, Indianapolis, St. Louis and Chicago Railroad Company, its successor, who have since operated it. The bill claims a large amount of tolls, freight, incomes and profits that have arisen from the operation of the road. The bill claims that the consolidation of the two roads was illegal, and bases the illegality upon the charge that the town of Kankakee did not consent to the consolidation, and had no notice of the same. The bill prays that the consolidation might be set aside, and the property restored to the Kankakee and Indiana Railroad Company, and that an account of the earnings, income and profits of the line from Kankakee to St. Anne may be taken, and the town’s share thereof paid to it, and the stock of all stockholders but that of the towns of Kankakee and Aroma to be cancelled, on account of its being claimed to be fictitious. • Summons was issued and served upon the defendants, and at the return term, motion was made by one of the defendants to dismiss the bill for want of authority on the part of the solicitor filing the bill, to appear for and represent the complainant. This was supported by an affidavit. The counsel filing the bill then presented a counter-affidavit by the supervisor of the town of Kankakee, in which he states, that acting, as he believed, for the best interests of the town, he employed the solicitor by whom the bill was filed, to file the bill, and reported to the board of town auditors all of his acts and the acts of the solicitor in the premises, and they were all approved by such board, and the solicitor was directed by the board of town auditors to take further proceedings in the suit to protect complainant. The court dismissed the bill, and this appeal is from that judgment.

      Mr. Stephen E. Moobe, for the appellant.'
    Mr. Thomas P. Bonfield, for the appellees.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The suit is one of importance, and its prosecution and defence, if conducted to a final hearing,.must be attended with heavy expenses in attorneys’ fees and in court costs. It is therefore more than a matter of form to the tax-payers of the town that it shall only be commenced and prosecuted at their expense by lawful authority. If the suit was commenced without authority, the action of the court in dismissing it was proper. Frye v. Calhoun County, 14 Ill. 132.

Under our system of township organization there is no officer or board representing the -corporate authority of the town. The electors, only, represent it, and they, in doing so, must and do necessarily act, through town meetings or town elections.. (Williams v. Town of Roberts, 88 Ill. 22.) There, can therefore be no implied authority in the supervisor or the town auditors to represent the town in its corporate capacity. If, in a given case, they or either are authorized to do so, it is by virtue of some statute, and that statute is the measure of their authority.

By section 2, article 4, chapter 139, of the Eevised Statutes of 1874, every town has corporate capacity to sue and be sued; and by section 3 of the same article, the electors present at the annual town meeting have power to direct the raising of money by taxation for the prosecution or defence of suits by or against the town, or in which it is interested; and also to provide for the institution, defence or disposition of suits at law or in equity, in all controversies between the town and any other town, or any individual or corporation, in which the town is interested. The only power, in this respect, given -to the supervisor, will be found in section 3, article 11, of the same chapter,-and is this: “He shall prosecute, in the name of his town, or otherwise, as' may be necessary, for all penalties or forfeitures given by law to such town or for its use, and for which no other officer is specially directed to prosecute, except as may be otherwise directed by the town meeting. ” It is not claimed, nor could it be, reasonably, by counsel, that this section meets the case. • Nor does counsel claim the existence of any other section conferring the specific .power upon the supervisor, or upon the town auditors, essential to the commencement and prosecution of this suit. No provision of the statute authorizes the town auditors, individually or collectively, to cause such suits to be commenced or prosecuted. As a board their functions are limited to examining and auditing the accounts of the supervisor, overseer of the poor and- overseer of the highways of such town, and all charges and claims against their town, and the compensation of town officers, etc. Rev. Stat. sec. 4, art. 13, ut supra.

Cooper v. Town of Delavan, 61 Ill. 96, was decided under a provision of the statute, whtich was not retained in the revision of 1874, to the effect that whenever any suit or proceedings shall be commenced against the town, it shall be the duty of the supervisor to attend to the defence thereof, and to lay before the electors of the town, at the first town meeting, a full statement of such suit or proceedings for their direction as to the defence thereof. Even if that provision had been retained,' it would be no authority for the commencement of a suit like the present. Had the legislature .so intended; it would have been just as easy as it was to say what was therein said, to have added, “the supervisor shall have power to cause suits to be commenced and prosecuted. ” And because they said the one and omitted the other, we are to assume, necessarily, that they intended the one and not the other. It is purely a legislative question whether one officer rather than another, or whether any particular person besides the town electors, shall be empowered to cause suits in behalf of the town to be commenced and prosecuted; and the able and ingenious argument of counsel in behalf of vesting that power in the supervisor should therefore be addressed to the legislature rather than to the court. It is quite probable that in the extreme cases he puts, of the threatened destruction or invasion of the property of the town, any taxpayer who would thereby be affected in the burden of taxation might, on the authority of Colton et al. v. Hanchett et al. 13 Ill. 615, and subsequent cases decided on like principle, have an injunction to stay the threatened destruction or invasion. But that is impertinent to the case before us. We are powerless to legislate on this question,—we .must enforce the statutes the General Assembly have seen fit to enact. We can not supplement other remedies and other methods- of protecting and enforcing the rights of the town.

Counsel make the point that the court erred in dismissing the case, even conceding that the suit was commenced without lawful authority, because the motion "was only made by one of the defendants,—that the order of dismissal should have been only as to the party making the motion. This is not tenable. The court would, of its volition, without any motion, have dismissed the suit at any time when its attention was called to the fact that it was being prosecuted without lawful authority.

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Mulkey

license: Public Domain

text:
    Nathan Stein et al. v. Penrose D. Good.

      Filed at Ottawa November 14, 1885.

    1. Judgment by confession—in vacation—proof of execution of power of attorney. A judgment by confession entered by the clerk of the court in vacation, without there being filed at the time any proof of the execution of the power of attorney, will be set aside on motion of the defendant, and the execution issued thereon quashed. Qucere, if such judgment is not yoid.
    2. Same—when allowed to stand until trial on merits. Where a judgment by confession, under a power of attorney, is sought to be vacated, or opened, on the ground of mere irregularities in the proceeding, as a general rule it should not be set aside absolutely for that reason, but should be allowed to stand as a security until the case can be heard on the merits,
    3. Same —papers constituting part of record. In the case of judgment by confession under a power of attorney in vacation, where wholly ex parte, the papers filed constitute a part of the record without being preserved in a bill of exceptions. In such case the record should show, unequivocally, that the power of attorney on file was executed by the defendant.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Warren county, the Hon. John J. Glenn, Judge, presiding.
    Messrs. Grier & Dryden, for the appellants :'
    No seal is necessary to a warrant of attorney to confess judgment. Truett v. Wainwright, 4 Gilm. 411.
    A warrant of attorney, authorizing confession at any time after its date, authorizes confession before maturity of note or debt. Adam v. Arnold, 86 Ill. 185; Sherman v. Baddeley, 11 id. 622.
    Confession of judgment by an attorney is conclusive of his authority so far as the validity of the judgment is concerned. If without authority, the remedy is against the attorney, or application to open judgment. Cyphert v. McCane, 22 Pa. St. 195; Denton v. Noyes, 6 Johns. 295; Ingalls v. Sprague, 10 Wend. 675; Gaillard v. Smart, 6 Cow. 386; Acker v. Ledyard, 8 N. Y. 65; Bates v. Voorhees, 20 id. 528 ; Hamilton v. Wright, 37 id. 505; Brown v. Nichols, 42 id. 26 : Cox v. Railroad Co. 63 id. 419.
    That the want of an affidavit showing the execution of the warrant of attorney is not fatal, we cite, the following among many other eases: Griffin v. Mitchell, 2 Cow. 548; Close v. Gillespie, 3 Johns. 526,; Miller v. Earle, 24 N. Y. 110; Ingram v. Roberts, 33 id. 409; Stone v. Williams, 4 Barb. 322; Sharp v. Young, 5 N. J. L. 976; Evans v. Adams, 3 Green, (N. J.) 373; Wilkins v. Croft, 2 N. J. L. (1 Pen.) 91; Dew v. Zellars, 7 N. J. L. 153 ; Stewart v. Hibernian Banking Association, 78 Ill. 596; v. Wallace, 87 id. 84.
    If the judgment was unjust, or appellee had any defence, the court should have opened the ease, leaving the judgment to stand as a security until a trial was had on the merits. Lyon v. Boilvin, 2 Gilm. 629; Truett v. Wainwright, 4 id. 411; Lake v. Cook, 15 Ill. 353; Fleming v. Jencks, 22 id. 475; Sloo v. Bank, 1 Scam. 428; Condon v. Besse, 86 Ill. 159; Walker v. Ensign, 1 Bradw. 113.
    In the following cases the judgments were allowed to stand, although there was no proof of the execution of the power of attorney preserved: Truett v. Wainwright, 4 Gilm. 411; Fleming v. Jencks, 22 Ill. 475; Roundy v. Hunt, 24 id. 598 ; Rising v. Brainard, 36 id. 79; Hempstead v. Humphrey, 38 id. 91; Stahl v. Shipp, 44 id. 133; Page v. Wallace, 87 id. 84.
    Mr. W. C. Norcross, and Messrs. Williams, Lawrence & Bancroft, for the appellee:
    Proof of the execution of the warrant of attorney was essential to the jurisdiction. Roundy v. Hunt, 24 Ill. 601; Anderson v. Field, 6 Bradw. 313 ; Friar v. National Bank, 73 Ill. 473; Tucker v. Gill, 61 id. 238.
    Section 34, chapter 110, of the Be vised Statutes, which dispenses with proof of execution unless denied under oath, applies only to instruments declared on. Hall v. Freeman, 59 Ill. 57.
    The written power to confess judgment is to be strictly construed and pursued. Thomas v. Mueller, 106 Ill. 44; Keith v. Kellogg, 97 id. 151; Roundy v. Hunt, 24 id. 601.
    That an attorney who confesses a judgment under a warrant of attorney is a mere attorney in fact, and as such must not only produce his warrant of attorney to do so, but must ■make proof of its execution, is either stated absolutely or by necessary implication in all the following cases: Roundy v. Hunt, 24 Ill. 601; Durham v. Brown, id. 93; Tucker v. Gill, 61 id. 238; Hall v. James, 32 id. 41; Iglehart v. Insurance Co. 35 id. 15 ; Iglehart v. Morris, 34 id. 502 ; Thomas v. Mueller, 106 id. 44; Anderson v. Field, 6 Bradw. 313.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

This is an appeal from the Appellate Court for the Second District, affirming an order of the Warren circuit court vacating a judgment entered in Vacation, and quashing an execution issued thereon.

The circuit court set aside the judgment in question absolutely, and quashed the execution issued thereon, for the reason no proof of the execution of the power of attorney, under which the confession was made, was filed with it. The simple question .presented by the record for determination is, whether the court committed an error in doing so for which the Appellate Court should have reversed the order. While the question is not entirely free from difficulty, we are inclined to answer it in the negative. The appellee maintains that the clerk, without such proof on file, had no power or jurisdiction to act at all, and that the judgment, therefore, was a nullity. The position of appellants is, that the validity of the judgment did not depend upon the proof of the execution of the power of attorney, but rather upon its existence, and whether it authorized the confession of the judgment made under it; that as neither of these facts was questioned, and the justness of appellants’ claim is not assailed, it was error to set aside the judgment. The authorities have been reviewed by counsel on both sides in support of their respective positions, but, as is not unfrequently the case, they have reached different conclusions. We do not deem it necessary to review the eases cited, for the purpose of determining whether they support the one view or the other. It may be admitted that if all the expressions to be found in the cases bearing on the question were collected together, and construed without regard to the particular facts in the cases to which they severally relate, both positions might possibly find apparent support. Indeed, it would be no cause for surprise if they did.

We fully recognize the general rule that where some mere irregularity has occurred in the confession of a judgment under a power of attorney, and i-t is assailed on that ground, it should not be set aside absolutely for that reason, but should be permitted to stand as security until the case can be heard on its merits. But this is a general rule of practice, only, and may well have its exceptions, like most general rules. While we are unable to say the court erred in setting aside the judgment absolutely for the reason stated, it is unnecessary to express any opinion as to whether such omission to file the proof in question rendered the judgment void. In this class of cases, where the whole proceeding is strictly ex izarte, and the papers filed constitute a part of the record without any bill of exceptions making them so, public interests would seem to demand that some evidence should appear in the record showing, unequivocally, that the judgment was confessed by authority of the defendant in the judgment,—or, in other words, showing- that the power of attorney on file was actually executed by him. These judgments are most generally confessed when the defendant is in failing circumstances, and when the business community have an interest in his affairs. In such ease it is a matter of importance to his creditors to be’ able to know with reasonable certainty whether the instrument purporting to be authority for the confession of the judgment, is genuine, and, in short, whether the law authorizing the judgment has been substantially complied with. Such information is generally essential to the protection of their own interests. Uniformity and regularity in these proceedings are therefore of the utmost importance to the community, and we are aware of no better method of securing these desirable objects than by saying to those who take such judgments, that they must, at their peril, see that the law has been complied with, or take risk of losing the benefit of their judgments.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Medard Dupuis et al. v. The Chicago and North Wisconsin Railway Company.

      Filed at Ottawa November 14, 1885.

    1. Eminent domain—measure of compensation for land taken—as to time of fixing value. In a proceeding to condemn land for public use, the compensation to be paid must be fixed by the value of the property at the date of the filing of the petition.
    2. Same—mode of ascertaining value—and herein, as to the special use to which property is adapted or applied. Where land sought to be taken under the Eminent Domain act has a market value, the correct measure of damages is its fair cash market value. But if the lands are devoted to some particular use, and in consequence of such use have an intrinsic value, the owner, in order to get just compensation, is entitled to receive whatever they are worth for the use or purpose to which they may be devoted.
    3. In order to determine the fair cash value of lands taken for public use, it is proper for the jury to consider the purposes for which they are used,— whether they are adapted to that particular use, whether they are profitable and valuable for that use; and in so far as the particular use to which they were or had been appropriated added to their market value, this may be considered by the jury.
    4. If the lands sought to be condemned are valuable as located, bordering on or near a river, for a saw-mill, planing-mill, or factory of any description, or for any other purpose, testimony tending to prove such -purpose is proper for the consideration of the jury in passing upon the fair market value of the property taken or damaged.
    5. Where the value of a mill on property sought to be condemned for railroad purposes is involved, ■ evidence that the mill was of an old pattern that had gone out of use, and on that account was less valuable, is proper on the assessment of the damages and compensation to be awarded the owner.
    6. Same—measure of damages as to land not taken, but damaged. Where other land of a party not sought to be condemned is damaged by the right of way, the measure of damages as to it is the difference between its value before and after the construction of the road.
    7. Instruction—directing the attention of the jury to the evidence and facts on one side of the case only. On the assessment of damages for property sought to be condemned for railroad purposes, it.appeared there was a mill on one of the lots sought to be taken, and the condition and value of the mill was in dispute, and much evidence on these p.oints was given on each side. The court, at the request of the petitioner, instructed the jury that they should only consider what the mill on the property was then worth, and tolc\ them that in estimating its value they should consider the age and present condition, as shown by the evidence and their own examination of the same; the condition and value of the roof, siding, floors and timbers, as to decay and rottenness; the old-fashioned and decayed condition of the machinery; the time it had been used, and its want of adaptability to manufacturing lumber in competition with modern mills, and every other condition of the mill and its machinery which the evidence and observation of the jury showed to decrease the present value thereof, and after considering all these things, give such compensation, etc.: Held, that the instruction was erroneous in directing the attention of the jury to every element detracting from the value of the mill, and in omitting everything tending to show the mill was valuable, and was misleading.
    Appeal from the County Court of Carroll county; the Hon. Benjamin L. Patch, Judge, presiding.
    Mr. M.T. Johnson, and Mr. J. M. Hunter, for the appellants.
    Mr. James Shaw, and Mr. D. S. Berry, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a proceeding in the county court of Carroll county, by the Chicago and North Wisconsin Eailway Company, to condemn certain lots in the city of Savannah for right of way and depot purposes. The defendants filed a cross-petition, claiming that certain property not actually taken was damaged by the construction of the railroad. The jury impaneled in the cause examined the premises, heard the evidence, and reported the compensation to be allowed the defendants for the land taken and damaged, to be $2175. The court overruled a motion for a new trial, and entered a judgment of condemnation, and the defendants appealed.

There is much conflict in the evidence in regard to the value of the property involved, and in view of the conflicting evidence, and in view of the fact that the jury in person examined the premises, we would not be inclined to reverse the judgment if the jury had been properly instructed as to the law of the case. But a part of the instructions did not state the law correctly. The third, fourth, fifth, sixth, seventh, tenth and eleventh instructions given for the petitioner are all claimed to be erroneous.

The third instruction directed the jury that the cash market value of the land taken, where it has a market value, is the proper measure of damages for land taken, and as to lands damaged the measure of damages is the difference between the value of the land before and after the construction of the road. We perceive no error in this’instruction. Where the lands proposed to be taken under the Eminent Domain law have a market value, the correct measure of damages for lands taken is the fair cash market value. (Jacksonville and Southeastern Railway Co. v. Walsh, 106 Ill. 253.) The fair market value would always give the owner just compensation, and that is all he is entitled to receive under the law. If the lands were devoted to some particular use, and in consequence of such use had an intrinsic value, the owner, in such a case, in order to get just compensation, would be entitled to recover whatever the lands were worth for the use or purpose to which they might be devoted. As to that part of the instruction relating to lands damaged, it is sanctioned by Chicago and Pacific Railroad Co. v. Francis, 70 Ill. 238, and Page v. Chicago, Milwaukee and St. Paul Railway Co. id. 324, and needs no further discussion.

The fourth instruction, which is also objected to, announces the same rule as to the market value of lands taken as is declared in the third, and also confines the right of the owner in his recovery, to the value at the time of filing the petition. In South Park Commissioners v. Dunlevy, 91 Ill. 49, it was held, in a proceeding to condemn lands for public use, the compensation to be paid must be fixed by the valuation of the property at the date of the filing of the petition. The instruction was in harmony with the rule laid down in the ease cited, which we regard the correct rule on the subject.

The petitioner’s fifth instruction in substance directed the jury that they should not take into consideration any profits, or supposed profits, realized from the business carried on upon such lands or lots, or the probable character of such business or profits in the future. Such profits are not proper elements in ascertaining the damages to which the defendants are entitled in this proceeding. This instruction was, in our opinion, calculated to mislead the jury. It may be true that the profits or supposed profits arising from the business was not a proper element of damages, as declared in the instruction, but it will be observed that the instruction does not stop with profits or supposed profits, but goes further, and informs the jury that they should not take into consideration the character of the business transacted on the property. As said before, the main inquiry was the fair market value of the property to be talien, but in arriving at a solution of this question, it was proper for the jury to consider the purposes for which the lands were used,—whether they were adapted to that particular use, whether the lands were profitable and valuable for that use; and in so far as the particular use to which the lands were or had been appropriated, added to their market value, that might be considered by the jury. If the lands were valuable, as located, bordering on or near the river, as it is contended they were, for a saw-mill, planing-mill, or factory of any description, or for any other purpose, the testimony tending to prove such purpose was proper for the consideration of the jury, in passing upon the fair market value of the property taken or damaged. This view we regard in harmony with the rule declared in Jacksonville and Southeastern Railway Co. v. Walsh, 106 Ill. 253, which has been cited as authority by appellee’s counsel.

The sixth instruction is like the last part of the third, which has already been considered.

The seventh instruction may be correct in so far as it announces a principle of law for the government of the jury, but after informing the jury that they should only consider what the mill on the property was then worth, it proceeds to inform them that in estimating the value, they should consider its age and present condition, as shown by the evidence and their own examination of the same; the condition and value of the roof, siding, floors and timbers, as to decay and rottenness ;• the old-fashioned and decayed condition of the machinery; the time it has been used, and its want of adaptability to manufacturing lumber in competition with modern mills, and every other condition of the mill and its machinery which the evidence and observation of the jury show, to declare the present value thereof; and after considering all these things, the jury should give such compensation, etc. The mill mentioned in the instruction was on-the property which petitioner desired to condemn. The condition of the mill and its value were in dispute. Much evidence in regard to it was introduced by both parties. The instruction takes up every element in the evidence that decreases its value, and the jury are directed to consider those facts, while nothing whatever is said in regard to the evidence which tends to prove that the mill is valuable. Instructions of this character have often been condemned. The instruction could have no other effect than to mislead the jury and bias their minds as to the value of the mill, in favor of the petitioner.

The tenth instruction is substantially like the last part of the third, which has been considered.

The eleventh instruction is, in substance, like the fifth, and is erroneous for the same reason.

One question was raised in regard to the admission of evidence. The petitioner asked one of its witnesses this question: “If the timbers and structure of the mill were just built, and the machinery of the same style, but new, what would be the value of the property as it now stands?” The object of the question was to show that the mill was of little or no value, and we perceive no objection to it. If the mill was of an old pattern, and had gone out of use, and on that account was less valuable, it was proper to show that fact.

For the errors indicated, the judgment will be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Sheldon

text:
    Elizabeth Shorediche v. William Shorediche.

      Filed at Ottawa November 14, 1885.

    1. Divorce—sufficiency of proof of extreme and repeated cruelty. On a bill for divorce by a wife against her husband, the evidence showed that some eight years before, the defendant, while lying on a lounge, kicked the wife on the breast, upon her refusal to lot him have money, and her admission that he did not mean to do the injury was proved. The proof further showed that shortly before the filing of the bill, the defendant, while engaged in a struggle with his son, in which she interfered, struck her a blow on the cheek, her testimony leaving it doubtful whether or not the blow was accidental. She also testified, on cross-examination, as to having been shaken by him, leaving black marks on her wrists. The court below' dismissed the bill: Held, that under the evidence the decree could not be said to be so clearly wrong as to call for a reversal.
    2. Evidence of abusive and obscene language of the husband to his wife, in the presence of the family and others, can not be taken to supply the lack of proof of the material charge in the bill as to extreme and repeated cruelty and habitual drunkenness.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. P. L. Shuman, for the appellant.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill for divorce, filed by Elizabeth Shorediche, against William Shorediche, in the circuit court of Cook county, the bill containing the charges of extreme and repeated cruelty, of using harsh, abusive and obscene language toward the complainant in the presence of her neighbors and children, of habitual drunkenness for two years, and failure to support complainant and family for five years preceding the- filing of the bill. Answer was filed, and upon hearing, on oral evidence, the court decreed in favor of the defendant, dismissing the bill at complainant’s costs, for want of equity. On appeal, the Appellate Court for the First District affirmed the decree, and complainant appealed to this court.

The only statutory grounds for divorce charged in the bill are extreme and repeated cruelty, and habitual drunkenness for two years. All the evidence in support of the first charge, as given by the complainant herself, is comprised, substantially, in her having been kicked on the breast some eight years before, and being struck a blow on the cheek a short time before the filing of the bill. As to the first mentioned act, she says defendant was lying on a lounge, and she sat at its foot, and that the kick was given on her refusal of defendant’s demand for money. There was in evidence an admission on her part, when showing the mark of the injury to a witness, that the defendant did not mean to do the injury. Defendant’s account is, that he had taken off his boots, and was lying on the lounge, reading; that complainant commenced annoying him by troubling his feet, and that he drew back his foot’ and kicked her. The blow on the cheek seems to have been received during a struggle of some violence, between defendant and his son, when complainant interfered. Her own account does not leave it certain that the blow was anything more than accidental. She says: “He (defendant) was wanting to fight; didn’t care who he would strike, or what, and in the struggle I got a blow,—a well-directed blow on the cheek. * * * He didn’t look,— didn’t care who he would hit; he wanted to fight me or my son, and it didn’t matter who he could hit.” This kick and blow were the only acts of physical violence testified to by complainant on her direct examination. During the course of the cross-examination, in answer to the court, complainant did testify further as to having been shaken, and carrying black marks on her wrists where defendant had taken her by the wrists and shaken her.

As to the charge of habitual drunkenness for two years, it can hardly be said that charge is substantiated by the evidence. There is considerable evidence of use of abusive language, but this can not be taken to supplement the lack of proof of the material charges in the bill which form grounds for divorce.

We are unable to say, under the evidence, the decree is so clearly wrong that it should be disturbed, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    William Jack et al. v. F. D. Weiennett, Collector.

      Filed at Ottawa November 14, 1885.

    1. Taxation—a tax defined, and as distinguished from, an ordinary debt—paramount character of claim for taxes. Taxes are an enforced personal contribution of persons and property, levied by authority of the State, for the support of the government and for all public needs.
    2. A tax is not a debt, in the ordinary sense of that word. The State may distrain and sell property for a tax, if not paid when demanded, without first obtaining a judgment, and as between it and creditors of the person owing the tax the State is entitled to a preference. The claim of the government for the payment of taxes upon the citizen is paramount to all other claims and liens against his property.
    3. The constitution requires that the General Assembly shall provide such revenue as shall be needed, by levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property. To enforce this provision it is indispensable that the tax shall have priority in right of payment over individual debts.
    4. Same—taxation and the insolvent laws—rights of assignee and purchasers. Where an insolvent debtor makes an assignment of his property for the benefit of his creditors, even before the tax books are placed in the hands of the collector, the State will still have the right to subject the property assigned, for the payment of any taxes due from the assignor; and when the property assigned consists of notes and choses in action, the collector, on proper petition to the county court, will be entitled to an order of that court directing the assignee to first pay the taxes of the assignor out of the trust fund.
    5. If, however, property assigned for the benefit of creditors is sold in good faith to a purchaser before the tax books come to the hands of the collector, so that no lien has as yet attached, the purchaser will take free of any lien for taxes. But tangible property in the hands of the assignee after the collector receives his warrant, is subject to distress and sale by the collector, the same as if in the hands of the assignor.
    6. If the insolvent laws could be held to have the effect of releasing either * persons or property from taxation, to that extent they would be unconstitutional, as section 6, article 9, of the constitution, denies the power of the legislature to release any person or property from his or its share of taxes levied for State purposes.

      7. Same—lien for taxes—its duration. The statute continues the power and duty of the county collector and his successor to collect taxes after his return and final settlement, until they are paid, and the lien created by the warrant continues from one collector to another, even after return of the tax books and the entry of the taxes in another book.
    8. Assignment eob benefit oe cbeditobs—assignee takes subject to all liens and equities. An assignee of a failing debtor takes the property assigned subject to all equities, liens or incumbrances, whether created by operation of law or by the act of the insolvent, which existed against the same in the hands of the insolvent.
    9. Pbaotioe—time to object—as to sufficiency of petition for collection of taxes from an insolvent’s estate. Where an objection to the sufficiency of a petition of a county collector to the county court for an order directing the assignee of an insolvent to pay the taxes against the insolvent, is merely technical in its character, and such as might have been readily obviated by amendment, on the hearing, had it been made in the court below, if not so made it will be considered as waived, and can not be heard for the first time in this court.
    Appeal from the County Court of Peoria county; the Hon. Lawrence W. James, Judge, presiding.
    Day Bros. & Co. were merchants at Peoria, Illinois, and as such were assessed for taxes for the year 1884, in the sum of $1827. In September of that year they sold their stock of goods and other tangible personal property to Charles B. Day. On the 9th day of October thereafter, they made a general assignment of the balance of their effects, consisting of claims, demands and promissory notes due them, amounting to about the sum of $25,000, to appellants, for the benefit of their creditors. Appellants took possession thereof, and have collected enough therefrom to pay the taxes so due for the year 1884. The collector, claiming that the taxes were a charge on the fund collected, and entitled to priority of all other claims after the payment of costs and expenses of collection, presented a petition to the county court setting out the foregoing facts, and praying that the assignees be directed to make payment accordingly. That court ordered in accordance with the prayer of the petition, and this appeal is from that order.

      Mr. William Jack, and Mr. Leslie D. Putekbatjgh, for the appellants:
    Any preference in favor of particular creditors is prohibited, and all must share alike. Dey v. Dunham, 2 Johns. Ch. 182; Robbins v. Emory, 1 S. & M. Ch. 207; State v. Bank, 6 Gill & Johns. 217; Hoffman v. Mackall, 5 Ohio, 124; Forbes v. Scannell, 13 Cal. 242; Hall v. Dennison, 17 Vt. 310; Vernon v. Morton, 8 Dana, 247.
    The assignee takes subject to equities, it is true, but they must be actual- equities existing at the time of the assignment. He takes subject only to liens, etc., which have attached before.- Drake on Assignments, sees. 391, 403.
    The tax in question was not a charge on the property at the time of the assignment. Petition of Johnson, 104 Ill. 50.
    A tax on personal property does not become a lien on property until the warrant comes to the hands of the collector. Hall v. Figley, 23 Ill. 418; Binkert v. Railway Co. 98 id. 218; Gaar, Scott & Co. v. Hurd, 92 Ill. 314.
    A tax on personalty is a debt of no higher nature than any other one. It is a creature of the statute, dependent upon the statute"for its creation, its force and effect, and its collection and lien or charge upon the property of the debtor. Even in cases in which, by laws of Congress, a general right of priority is given to the United States, it is settled that this right of priority attaches only on the residue of the fund in the assignee’s hands after payment of the expenses incurred in its collection. United States v. Hunter, 5 Mason, 229.
    Mr. John M. Niehaus, State’s Attorney, for the appellee:
    Taxes are not debts in the ordinary sense of the word, but contributions required for the support of the government. Shreveport v. Gregg, 28 La. Ann. 836.
    Taxes are charges imposed by or under the authority of the legislature upon persons and property subject to its jurisdiction. People v. McColery, 34 Cal. 432.

      A tax is not a mere debt. Hilliard’s Law of Taxation, p. 16, see. 26.
    That a tax does not create the relation of debtor and creditor would seem apparent. Perry v. Washburn, 20 Cal. 334.
    The term “taxes,” includes all contributions imposed upon individuals for the service of the State. Green v. Craft, 28 Miss. 70; Union County v. Bordelain, 7 La. Ann. 341.
    Taxation is an incident of sovereignty. Debold v. Ohio Trust Co. 1 Ohio St. 563; Mississippi Mills v. Cook, 56 Miss. 59; Duer v. Small, 4 Blackford, 263; Mechanic’s Bank v. Debold, 1 Ohio St. 591.
    The right of the State to impose taxes upon the citizens, and the duty of the latter to pay the same, do not rest upon contract, but are limited only by the fundamental law of the State. Pamo v. New Albany, 22 Ind. 204.
    State exigencies are not to be measured by those of individuals. Sears v. Cottrell, 5 Mich. 255.
    A tax for the support of the government takes precedence over all other demands. 1 Blackstone’s Com. 281; Dennis v. Maynard, 15 Ill. 481; Dunlap v. Gallatin County, id. 9; Butler v. Bailey, 2 Bay, 249; Doe v. Deavers, 8 Ga. 482.
    The statutory mode of collecting taxes is not exclusive. Mayor v. Howard, 6 Harris & J. 383; Dubuque v. Railroad Co. 39 Iowa, 56; Dollar Savings Bank v. United States, 19 Wall. 227; Dillon on Hun. Corp. sec. 653; People v. Stahl, 101 Ill. 351; Ryan v. Gallatin, 14 id. 78; Genera v. Cole, 61 id. 397.
    If a tax has been legally assessed, the owner becomes personally liable for it. Oakland v. Whipple, 39 Cal. 113.
    The assignee is not a purchaser for value. He takes the property subject to all equities and charges. Burrill on Assignments, 538; Hardin v. Osborne, 94 Ill. 576; Yeatman v. Savings Institution, 95 U. S. 764.

      Where a fund is in its charge, a court may order the taxes paid out of it before the fund is paid over. Cooley on Taxation, 299, note 2.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The main controversy here is, whether creditors, in case of assignment under our insolvent laws, acquire such vested rights in the property assigned that it can not be thereafter taken or appropriated for the payment of taxes levied before that time, but which had not then become a lien on the property assigned. If a claim for taxes is but an ordinary debt, creating the relation of debtor and creditor, the question must be answered in the affirmative; for all creditors» under the statutes relating to insolvency, must share pro rata under the assignment. But such a claim is not a debt, within that sense. Cooley says: “Taxes are defined as being the enforced personal contribution of persons and property, levied by the authority of the State, for the support of the government and for all public needs. They are the property of the citizen, demanded and received by the government, to be disposed of to enable it to carry into effect its mandates, and to discharge its manifold functions. ” And again he says : “In an exercise of the power to tax, the purpose always is, that a common burden shall be sustained by common contributions, regulated by some fixed general rule, and apportioned by the law according to some uniform ratio of equality.” Cooley on Taxation, 1, 2. See, also, Blackwell on Tax Titles, 7; Opinion of Judges, 58 Maine, 591; Shreveport v. Gregg, 28 La. Ann. 836; People v. McColvy, 34 Cal. 432.

A creditor has no right to distrain and sell property. He must first get a judgment and an execution. But the State, because of the importance and urgency of its claim, is not required to wait for a judgment. If a tax due is not paid on demand, the collector may proceed to seize property and sell it for its payment. (See Cooley on Taxation, 298-301.) Before property can be protected, and the rights of creditors enforced, the State must have the means of subsistence. It can not perform its functions without them, and they can only be obtained through some system of taxation. The claim for the payment of taxes upon the citizen is, therefore, of necessity paramount to all other claims against his property. Our • constitution, moreover, requires that the General Assernbly shall provide such revenue as shall be needful, by levying a tax, by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her, or its property. (Section 1, article 9.) To the enforcement of this provision it is obviously indispensable that the tax shall have priority in right of payment over individual debts.

In Dunlap v. Gallatin County, 15 Ill. 7, the court held that the -claim of the county for taxes is entitled -to priority over individual debts, and the following, from the language- of the opinion, in discussing that question, is quite pertinent here: “The claim of the county” (i. e., for taxes,) “does not stand on the same footing with the other indebtedness of the bank. It is entitled to priority in payment. A tax is not an ordinary debt. It is levied for the support of government, and takes precedence of all other demands against the owner. It is a charge upon the property, without reference to the matter of ownership. The property itself may be seized and sold, although there may be prior liens upon it. The estate of a deceased person is primarily liable for the taxes that may be due from it. The State is not bound to wait until the estate is administered, and then participate with the creditors in the distribution of the proceeds. It may enforce payment to the exclusion of all other creditors. And so of an insolvent estate in the hands of trustees, under a compulsory or voluntary assignment. In this case the property passed to the assignees for the benefit of the creditors of the" bank. It became a common fund for the payment of their debts. But the assignees acquired the same subject to the right of the State to charge it with taxes. The creditors likewise acquired interests therein subordinate to the right of taxation. They are only entitled to the surplus that may remain after the payment of the taxes, and the necessary expenses of administering the assignment. ” The same principle is referred to with approval in the subsequent case of Dennis v. Maynard et al. 15 Ill. 477.

The assignment simply placed the property in the hands of the assignees for the payment of debts, as it was in the hands of the owners for that purpose before that time. The assignees are not purchasers. They take their title subject to all equities, liens or incumbrances, whether created by operation of law or by the act of the insolvent, which existed against the property in the hands of the insolvent. (Yeatman v. Savings Institution, 95 U. S. (5 Otto,) 766; Hardin v. Osborn, 94 Ill. 576; Dunlap v. Gallatin County, supra.) Undoubtedly, if the property had been sold in good faith to a purchaser before the tax books went into the hands of the collector, then, under the authority of previous decisions of this court, the purchaser would have taken free of any lien for the taxes. But that principle has no application in this case, because no one is claiming here as purchaser. It would, moreover, seem quite clear that if this property had been of that tangible character which admits of distress, and the tax collector’s books had been delivered to him for the collection of the taxes, the collector could have distrained and sold the property, entirely disregarding the claims of private creditors. It is manifest the form of the property can make no difference,—it is still personal property, and the legal rights and liabilities are precisely the same, whatever may be its form.

If the insolvent laws can be held to have the effect of releasing either persons or property from taxation, they are to that extent unconstitutional, for by section 6, article 9, of the constitution, the General Assembly is denied the power to release any person or property from his or its proportionate share of taxes levied for State purposes. The State, then, still having the right to subject this property in the hands of the assignees to the payment of these taxes, after the tax books were placed in the hands of the collector a lien in its favor attached, and thereafter there is no pretence that anything occurred to divest the right of the State. Our present Eevenue law provides that “the power and duty to collect any tax due and unpaid shall continue in and devolve upon the county collector and his successors in office, after his return and final settlement, until the tax is paid; and the warrant attached to the collector’s book shall continue in force and confer authority upon the collector to whom the same was issued, and upon his successor in office, to collect any tax due and uncollected thereon, although such books may have been returned, or the tax carried forward into any other book.” (2 Starr & Curtiss, p. 2076, sec. 162.) The difficulty of collecting a tax on account of the intangible character or inaccessible position of the property out of which it is to be paid, can not affect the question of the right to require such property to be devoted to such payment.

We think there was no error in the order of the county court.

Objection is urged to the sufficiency of the petition in the respect that it is not specific enough in the allegation that a sum is in the hands of the assignees, by virtue of the assignment, from which it can be seen this tax can be paid. The objection is made now for the first time. It is purely technical. There is no question in respect of the fact. No injustice is done by holding, in conformity .with our ruling in chancery cases on kindred questions, that the objection comes too late. Had it been made upon the hearing, the amendment would have been allowed as a matter of course, and it would have necessitated no delay.

A final objection is to the jurisdiction of the court. We think the order is within the undoubted powers of the court in such cases. See Starr & Curtiss’ Annotated Stat. chap. 72, sec. 43 1; Freydendall v. Baldwin, 103 Ill. 325.

The order is affirmed.

, Order affirmed.

Mr. Justice Cbaig, dissenting.

Mr. Justice Sheldon does not concur.


author: Mr. Justice Scott

text:
    Lebbeus H. Rogers v. T. H. Traver, Assignee.

      Filed at Ottawa November 14, 1885.

      Appeal—judgment of Appellate Court—whether final. Where the Appellate Court reverses a judgment or order of the circuit court, and remands the cause “for such other proceedings as to law and justice shall appertain,” the judgment of the Appellate Court not being final can not be reviewed by this court on appeal or writ of error.
    Wbit of Ebbob to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogebs, Judge, presiding.
    Mr. Chables F. White, and Mr. M. L. Wheeleb, for the plaintiff in error.
    Mr. H. H. C. Milleb, for the defendant in error.
   Mr. Justice Scott

delivered the opinion of the Court:

On the 30th day of July, 1884, Lebbeus H. Rogers filed his petition in the county court of Cook county, in which he claimed he was the owner of certain personal property in the hands of T. H. Traver, under and by virtue of an assignment made to him by Cushing, Cummings & Co., and asked the court to order such assignee to'turn the property over to petitioner. On the hearing’ in the county court the property in controversy was adjudged to belong to petitioner, and the assignee was by the court directed to deliver it to him. From * that decision the assignee prayed fór and was allowed an appeal to the circuit court, which he afterwards perfected by filing the usual appeal bond. On motion of the petitioner the appeal was dismissed out of the circuit court for want of jurisdiction in that court to entertain such appeal. The assignee excepted in due form to this decision of the circuit court, and on his further appeal the cause was heard in the Appellate Court for the First District, where the judgment of the circuit court was reversed, and was remanded to that court for “such other proceedings as to law and justice shall appertain.” Since then petitioner has brought the case to this court on error. •

It is obvious this is not a final judgment in the sense those terms are used in the statute, so that the unsuccessful party could bring the case to this court on appeal or writ of error. It is simply a judgment of reversal, and the cause is remanded to the circuit court for “such other proceedings as to law and justice shall appertain.” This question has been so often discussed in this court it need not now be elaborated. Anderson v. Fruitt, 108 Ill. 388.

The writ of error will be dismissed, which is done.

Writ of error dismissed.


text:
    The Chicago and Atlantic Railway Company v. Ellen Carey, Admx.

      Filed at Ottawa November 14, 1885.

      1. Practice—directing what the verdict shall be, on failure of proof by the plaintiff. If, when the plaintiff in a cause closes his case, there is no evidence tending to prove a material fact essential to a recovery, the court should, on request, instruct the jury that upon the evidence before them it is their duty to find for the defendant.
    2. So in an action by the personal representative of a person killed by passing cars of a railway company, if the proof shows the killing, only, and there is no evidence tending to show negligence on the part of the defendant or its servants, the court should, on request of defendant, instruct the jury to find for the defendant; but if there is any evidence from which such negligence may be inferred, no matter by which party introduced, the court should not take the case from the jury by instruction.
    3. Negligence—as to proof of use of due care. A person was killed in the night time by cars in motion. There was no eye-witness of the injury. The proof showed that about midnight the deceased left a store a few blocks distant from the place of the accident, and started on the sidewalk in the direction of his home, and was then duly sober, and that the place where he was killed was on his direct route home, and the accident must have happened very soon after he was last seen that night: Held, in an action to recover for his death, that the circumstances were such as might justify an inference whether or not the deceased used due care, and that direct proof on this point was not necessary.
    4. Allegations and proofs—in action to recover for death of a person, by next of kin, etc.—proof as to loss of support, under the pleadings. In an action by the administratrix of a deceased person to recover damages for negligently causing his death, the declaration averred that by the death of the deceased, (plaintiff’s husband,) the widow and minor children named were deprived of their support, and said minors of their means of education, to the damage, etc.: Held, that such averment was sufficient to admit evidence tending to show the ability of the deceased to earn money.
    Appeal from the Appellate Court, for the First District j— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John Gr. Rogers, Judge, presiding.

      Mr. W. 0. Johnson, and Mr. J. S. Slick, for the appellant:
    The children of deceased are not entitled to recover for injury, beyond their majority. Walters v. Railroad Co. 36 Iowa, 458.
    Next of kin not dependent on deceased for support, and having no reasonable expectation of pecuniary benefit from him,- are entitled to nominal damages only. Railroad Co. v. Swett, 45 Ill. 197; Railroad Co. v. Shannon, 43 id. 338.
    The court erred in allowing evidence that decedent was a strong, able-bodied man, and able to earn money, because there is no such allegation in the declaration. Proof of the physical condition, bodily health, or ability to render valuable services, is not admissible unless such facts are alleged. Gilligan v. Railroad Co. 1 E. D. Smith, 453; Stafford v. Drew, 3 Duer, 626; Rogers v. Smith, 19 Ind. 323; Pennsylvania Co. v. Lilly, 73 id. 252; Regan v. Railroad Co. 51 Wis. 599; Quinn v. Moore, 15 N. Y. 432.
    The burden of proof was on plaintiff to show that deceased used all due care. Dyer v. Talcott, 16 Ill. 300 ; Railroad Co. v. Fay, id. 558; Murphy v. Railroad Co. 45 Iowa, 661; Railroad Co. v. Eaton, 53 Ind. 307.
    Where the circumstances point just as much to negligence on his part as to its absence, or point in neither direction, a recovery can not be had. Cardell v. Railroad Co. 75 N. Y. 330; Willoughby v. Railroad Co. 37 Iowa. 432.
    Where the evidence given at the trial, with all the inferences that the jury could justifiably draw from it, is insufficient' to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court, should direct a verdict for the defendant. Pleasants v. Faut, 22 Wall. 116; Herbert v. Butler, 97 U. S. 319 ; Bowditch v. Boston, 101 id. 16; Griggs v. Houston, 104 id. 553. And see 15 Am. & Eng. Ry. Cases, 243.
    The total failure of the appellee to introduce any evidence tending to show that the deceased ivas, at the time of the accident, in the exercise of due care, is of itself sufficient to have authorized the court to direct the verdict. Hendrick v. Lindsay, 93 U. S. 143; Commissioners v. Clark, 94 id. 278; Pleasants v. Faut, 22 Wall. 116.
    The mere fact of an injury having been suffered is not enough to establish a charge of negligence against the person causing the injury. Shearman & Redñeld on Negligence, secs. 5, 6; Curtis v. Railroad Co. 18 N. Y. 534; 20 Barb. 282.
    Mr. C. Stuabt Beattie, and Mr. Edward H. Morris, for the appellee:
    The declaration alleged: “And that by reason of the death of the said William Carey, as aforesaid, the said Ellen Carey has been and is deprived of her support, and the said children (naming them) have been and are deprived of the means of their support and education.” Under this allegation of damage, proof that deceased was a strong man, and of his ability to earn money, and his habits, was properly admitted. It will be presumed he provided for his family. Railroad Co. v. Warner, 108 Ill. 546; Railroad Co. v. Moranda, 93 id. 304.
    The question of care, skill and prudence is to be left to the jury. Railway Co. v. Bray, 57 Ill. 515; Railway Co. v. Jackson, 55 id. 492; Pennsylvania Co. v. Webber, 76 Pa.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action on the case, brought by the appellee, as administratrix, against the. appellant, the Chicago and Atlantic Railway Company, to recover damages for the killing of appellee’s husband by one of the appellant’s trains at a public crossing of Fifty-first street, in the town of Lake, in Cook county. There was no witness of the occurrence. Deceased spent the evening at the store of one Hart, on Fifty-first street, about five blocks east of the appellant’s tracks, and was last seen, before the injury, by Hart, about 12:30 A. M., when deceased left Hart’s store to go to his home west of the track, and started west on Fifty-first street. That street runs east and west, and the railroad crosses it running north and south. There is a sidewalk on each side of Fifty-first street. About half-past one o’clock A. M., deceased was found in a water-closet about four hundred feet west of the tyacks, alive, with only one shoe on. His face and hands were bruised and foot crushed. There was blood all the way from the track and Fifty-first street to this closet. Deceased’s other shoe was found in the morning on the north side of Fifty-first street, wedged in between the track and the boards of the sidewalk.

At the trial, after the plaintiff had introduced all of her evidence and rested, defendant’s counsel moved the court to dismiss the case for want of sufficient evidence to maintain it, and that motion being overruled, evidence was introduced on the part of the defendant, and after all the evidence ivas in, defendant’s counsel again asked the court to instruct the jury that, upon the evidence before them, it was their duty to find a verdict for the defendant. The court refused to so instruct, and these' rulings of the court are assigned as error. Had this instruction been asked at the conclusion of plaintiff’s evidence it should then have been given, as there had been then introduced no evidence of defendant’s negligence, all' the evidence looking in that direction being that of a witness who, at the probable time of the accident, was three or four hundred feet away, and testified that he had no recollection of hearing the whistle or bell. But the testimony introduced by the defendant furnished such evidence tending to show negligence, that it was then, in our opinion, proper for the court to refuse such an instruction, and if so, appellant has no just ground of complaint for either one of the court’s rulings.

Defendant’s testimony showed that about midnight a gravel train came in from the south, and stopped at Fifty-first street. The train was there opened enough to make a cut at the street crossing, and ivas so left cut in two for a while. Twelve or fifteen cars were pulled over the street to the north side, and the others left on the south side. A short time afterward the train was moved north of Fifty-first street to Forty-ninth street, by another engine,—a switch engine,—and put on a side-track there, where the gravel ears were to be unloaded. In doing this, the engineer of the switch engine testified that near midnight he coupled on to the cars of the train which stood north of Fifty-first street,—about twelve or fifteen cars north of Fifty-first street,—pushed them across Fifty-first street against those standing on the south side, coupled them, and pulled them north over Fifty-first street; that there was a headlight on both ends of the switch engine, and the fireman was all the time ringing the bell. Under such evidence introduced by the defendant, the question of negligence could not properly have been taken by the court from the jury, but it should have been submitted to them to say whether, under the circumstances, there was not negligence in thus pushing these cars across Fifty-first street Avithout the taking of more precaution than appears in this case.

It is said there Avas no proof of the exercise of due care by the deceased. It was in evidence that about midnight he started to Avalk home on Fifty-first street,—that he was then sober. The situation of the cars would not lead one to think they Avere suddenly to be moved south across Fifty-first street. These were circumstances from which there might be inference whether or not deceased used due-care. Direct testimony upon the point was not required.

It is insisted there Avas error in allowing the plaintiff to introduce evidence tending to show the ability of the deceased to earn money, there being no averment in the declaration upon that subject. The position is, that it is necessary the declaration should set forth the facts which are relied on to show that the beneficiaries designated by the statute have sustained pecuniary injury by the death of the deceased, and so that there should have been an averment of this particular fact of ability to earn money in order to admit proof of it. The averment in the declaration is, that by the .death of the deceased, plaintiff’s husband, the widow and minors named were deprived of their support, and said minors of their means of education, to the damage of plaintiff, as administratrix, in the sum of $5000. We think this averment was sufficient in the respect of particularity, to admit this particular of evidence objected to.

We do not consider the objections to the instruction given for the plaintiff. as well taken, in its application to the facts of this ease.

The judgment of the Appellate.Court will be affirmed.

Judgment affirmed.


text:
    Victoria A. Lindsay v. The City of Chicago.

      Filed at Ottawa November 14, 1885.

    1. Special assessment for local improvement—necessity of ordinance, in order to a confirmation. Under the general Incorporation law, in order to obtain a judgment of confirmation of a special assessment for a local improvement, it is essential for the city or village to aver and prove that an ordinance authorizing the improvement had been passed. Such ordinance is the foundation of the proceeding, and can not be dispensed with.
    . 2. Ordinance—evidence—proof of the passage and publication of an ordinance, and of its contents. Where the ordinances of a city or village incorporated under .the general law are printed in book or pamphlet form, purporting to be published by authority of the city council or board of trustees, such book or pamphlet is evidence of the passage and contents of the ordinances therein contained, and of their legal publication.
    3. By the statute, all ordinances of a city or village incorporated under the general law, and their publication, may be proved by the certificate of the city or village clerk, under the seal of the corporation. Under this law, ■a certified copy of an ordinance, under the seal of the corporation, made by the clerk, will have the same force and effect, as evidence, as a printed book of ordinances, which is made evidence of the publication and passage of an ordinance.

      4. The production of a duly certified copy of an ordinance of a city acting under the general Incorporation law, affords prima facie evidence that every step has been taken .with reference to it to make it a valid ordinance. If the party against whom the ordinance is sought to be used desires to controvert the fact that it was duly passed by a majority vote on the call of the ayes and noes, as required by section 18, article 3, of the act, it devolves upon him to produce the journal, and thereby overcome the prima f acie case made by the production of the ordinance, or a certified copy thereof.
    Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Mr. E. J. -Whitehead, for the appellant.
    Mr. Gr. W. Haynes, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This is an appeal from a judgment of the county court of Cook county, confirming a special assessment. In the petition presented to the county court, in which the city of Chicago asks to have the assessment confirmed, it is alleged that on the 13th day of November, 1882, the city council passed an ordinance providing that Canalport avenue, from Canal street to Halsted street, be paved with a certain specified pavement. What purports to be a copy of the ordinance is attached to the petition. On the day fixed by the court for those interested to file objections to the confirmation of the assessment, appellant appeared, and objected, in writing, to the confirmation of the assessment, upon the alleged ground that no ordinance was ever passed by the city council of Chicago directing or authorizing the paving of Canalport avenue, as alleged in the petition. On the hearing, the petitioner offered in evidence a certified copy of the ordinance set out in the petition, and the appellant objected to the reading of the certified copy in evidence, because there was no evidence that the ordinance had been passed by the city council of Chicago. The court overruled the objection, and entered a judgment of confirmation.

It was essential for the city, in order to obtain a judgment of confirmation, to aver and prove that an ordinance authorizing the improvement had been passed. Section 19, article 9, of the City and Village act, provides: “Whenever such local improvements are to be made, wholly or in part, by special assessment, the said council in cities * * * shall pass an ordinance to that effect, specifying therein the nature, character, locality and description of such improvement. ” (Rev. Sta-t. 1874, p. 234.) An ordinance providing for the improvement was the foundation of the proceeding, and the passage' of an ordinance could not be dispensed with.

But it is contended that the evidence before the court established the existence of an ordinance, while on the other hand it is contended that the passage of an ordinance could only be established by the production of the journal containing the proceedings of the city council, and that the journal must show that the yeas and nays were taken, and that a majority of the members elect voted for the ordinance on the call of the yeas and nays. This last position is predicated on section 13, article 3, of the City and Village act, which declares: “The yeas and nays shall be taken upon the passage of all ordinances, * * * which shall be entered on the journal of its proceedings; and the concurrence of a majority of all the members elected in the city council shall be necessary to the passage of any such ordinance dr proposition.” (Rev. Stat. 1874, p. 215.) If this was the only provision of the statute relating to the passage, or proof of the passage, of ordinances, there would be much force in the position of appellant. But such is not the case. Section 4 of article 5 of the same statute, provides: “All ordinances, and the date of publication thereof, may be proven by the certificate of the clerk, under the seal of the corporation. And when printed in book or pamphlet form, and purporting to be published by authority of the board of trustees or the city council, the same need not be otherwise published; and such book or pamphlet shall be received as evidence of the passage and legal publication of such ordinances, as of the dates mentioned in such book or pamphlet, in all courts and places, without further proof. ”

It is too plain to admit of argument, that where the ordinances of a town or city have been printed in book or pamphlet form, purporting to be published by authority of the board of trustees or city council, the book shall be received as evidence of the passage of the ordinance, because this is the plain language of the statute. But a book of ordinances was not put in evidence. The petitioner, in lieu of the book, put in evidence a certified copy, attested by the clerk, under the seal of the corporation. This, in our opinion, proved the passage of the ordinance as effectually as the fact would have been proven had a printed book of ordinances been admitted. The language found in the first part of section 4,—“All ordinances, and the date of publication, may be proven by the certificate of the clerk, under the seal of the corporation, ”— will admit of no other construction. It is said this means that you may thus prove the contents of an ordinance. But such is not the language of the act. The language is, the ordinance may be proven. The legislature no doubt intended, by the use of this language, that a certified copy of an ordinance, under the seal of the corporation, made by the clerk of the council, should have the same force and effect, as evidence, 'as a printed book of ordinances, which, in express terms, is made evidence of the passage and publication of an ordinance. In Byars v. City of Mt. Vernon, 77 Ill. 467, it was held, under the last part of section 4, supra, that where the ordinances of a city or town incorporated under the general law, are published in a book by authority of the board of trustees or city council, such book is competent evidence of the passage of the ordinances contained therein. And in Schott v. The People, 89 Ill. 196. the decision was cited with approval, and it was- there said: “It is doubtless "competent for the legislature to enact that the simple production.of the ordinance or of a copy thereof shall be prima facie evidence that every step has been taken with reference to it essential to make it a valid ordinance; and this is the effect of section 65 of the general act in relation to the incorporation of cities, towns and villages. ”

We are satisfied that under the first part of section 4, the legislature intended to provide that the production of an ordinance certified by the clerk, under the seal of the corporation, .should be at least prima facie evidence of the passage of such ordinance. And if the appellant desired to controvert the -fact that the ordinance was passed as required by section 13, article 3, of the statute heretofore cited, it devolved upon him to produce the journal, and thus overcome the prima facie ease made out by the production of the ordinance.

The judgment of the county court will be affirmed.

Judgment affirmed.


text:
    Adolph Cohn v. Morris Mitchell et al.

      Filed at Ottawa November 14, 1885.

    1. Specific performance—discretion in granting relief. Courts of equity have large discretion in cases of specific performance; but such discretion is a judicial one, and subject to review when relief is denied in a case clearly within the general principles of equity jurisdiction. It results from this that every ease of specific performance depends in a great degree upon its owm special circumstances.
    2. Same—as to contracts relating to personal property. As a general rule a court of equity will not decree the specific performance of a contract relating to personal property, unless there is some element or feature in it to show that the relief at law may not be adequate,—as, when the measure of damages resulting from the non-performance of the agreement is uncertain dr difficult to ascertain, or when the thing contracted for has to the complainant some intrinsic or special value, and the like caBfes.
    . 3. Same—of performance, or an offer to perform, as essential to the right to relief.' To entitle a party to relief by specific performance, he must show that he has performed, or at least offered to perform, the agreement on his part; and if an offer, only, is relied on, it must have been made within a reasonable time, or some sufficient excuse shown for not doing so.
    4. In this case, several loans of money were made upon the security of certain shares of stock in a private corporation, hypothecated,by the borrower, under an agreement for a renewal of the notes given upon the same terms as the original. The borrower made no offer to renew the notes until the first one was about four months past due, and no new notes were prepared and tendered, and the only excuse for not making the tender was the fact that the notes for a part of the time were in the hands of another. It-was held, that the borrower was not entitled to a decree for the specific performance of the agreement for renewal, and that the excuse for not tendering the renewal notes in proper time was not sufficient.
    5. It was a further feature of the agreement, on the part of the borrower, in pledging his stock in the corporation, that he should pay the lender any dividends that might be declared thereon. It appeared that through his instrumentality, in part, the capital stock of the corporation was increased from $100,000 to $200,000, whereby the value of the stock was diminished to about half its former value, and that he applied his dividend of $1907.31 in the purchase of the new stock, instead of paying the same to the lender, and that he failed to tender renewal notes in a reasonable time after the maturity of the originals: Held, on bill by the borrower to enforce a specific performance of the agreement for renewal of the notes, that he was not entitled to the relief sought.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. G-. W. & J. T. Kretzinger, for the appellant:
    A contemporaneous written agreement for renewing a note is binding on the parties, though detached from the note. 2 Parsons on Notes and Bills, 534, 538.
    A bill lies for its specific enforcement. McMullen v. Vanzant, 73 Ill. 192.

      The entry of judgment by confession upon the notes is no bar to the bill to enforce the agreement to renew the notes. Carrington v. Halabird, 17 Conn. 537; Truett v. Wainwright, 4 Gilm. 411; Wistar v. McManes, 54 Pa. St. 327; Broomley v. Holland, 7 Ves. 3; 2 Bouvier’s Law Dic. 467.
    Messrs. Rosenthal & Pence, and Messrs. Abbott, Oliver & Showalter, for the appellees.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

The above cases come to this court by appeal from the Appellate Court for the First District. Both grow out of the same state of facts, and will be considered in one opinion. They were brought by the appellant, Adolph Cohn, originally in the Superior Court of Cook county,—one on the law, and the other on the equity side of the court. The suit at law was brought against'the appellee Morris Mitchell, alone, and the chancery suit against him and Seth F. Hanchett, as sheriff. Cohn was unsuccessful in both cases, in the trial as well as the Appellate Court.

It appears that on the 7th of June, 1883, Cohn and Mitchell entered into a written agreement by which the latter agreed to lend the former such sums of money as he might require, not to exceed $10,000. As a condition of the loan, Cohn was to subscribe for $20,000 of the capital stock of the American Varnish Manufacturing Company, which was then about to be organized, and in which Mitchell as well as Cohn proposed taking stock. The stock, when issued to Cohn, was. to be deposited by him with Mitchell, as collateral security for the loans contemplated by the agreement, and they (the loans) were to be evidenced by judgment notes, each payable in one year from date, with interest at eight per cent per annum, payable semi-annually, and was to contain a recital showing that the stock was pledged for its payment, with power, to sell. It was further stipulated in said agreement, as follows : “The money so borrowed is to be paid solely to the corporation aforesaid, as installments on the stock subscribed by said Cohn. Said Mitchell binds himself to renew any or all the notes aforesaid on the terms aforesaid. It is further mutually agreed that said Cohn may at any time pay $500 or more on the said notes, or any of them, and have the same credited as he may direct. It is further agreed that all dividends declared on the said stock, during the outstanding of any of the said notes, shall be paid and credited thereon, provided that should any interest dividend be declared, such dividend is to be used in the payment of interest on the notes, at the option • of said Cohn. Said notes are to be so drawn that no default in- the payment of principal or interest can authorize a sale of the collateral except after the lapse of ninety days from and after such default. ”

The American Varnish Company was organized as contemplated, with a capital stock of $100,000, and Mitchell, pursuant to the agreement, advanced to Cohn the following sums of money, to-wit: August 1, 1883, $4000; September 24, 1883, $2000; November 1, 1883, $2000; December 27, 1883, $1000. Judgment notes were given by Cohn to Mitchell for the amount of these advances at the times they were respectively made, and in conformity with the agreement. It will be perceived that the first of these notes matured in August, 1884, and the last, December 27th of the same year. Cohn testifies that about the time the first note matured he learned that it was in the hands of one Samuels, and that he (Samuels) refused to renew the note; that he thereupon called on Oliver, the attorney of Mitchell, and told him that the transfer to Samuels was colorable only, and for the purpose of avoiding the performance of the above agreement. He further states that immediately after this interview with Oliver he received from him a note stating, “I did not see you Saturday, as requested. Mr. John Samuels informs me, under date of November 20th, that he' would consent to a renewal of the note rather than involve Mitchell in a lawsuit, and Mitchell has since told me that he has taken up the note from Samuels and settled with him in full. Mitchell was in to-day and demanded renewal of the- past due notes forthwith, and I think you had better attend to it at once, otherwise you are entirely likely to lose your stock very soon.” This note from Oliver bears date November 24, which was near four months after the first note matured.

About the 4th of December Cohn called on Oliver, who presented to him for his signature a renewal note, without the clause in it prohibiting the sale of the stock securing it except upon ninety days’ notice, which Cohn refused to sign, but, as cláimed by him, offered to sign one with that clause in it. Nothing was done, however, and Cohn went off to consult counsel. On the 4th of December, J. T. Kretzinger, as his attorney, called upon Oliver, for the purpose of reaching an understanding and adjusting their differences. Oliver informed Kretzinger that Rosenthal & Pence had been retained by Mitchell as counsel in the case, and that he had no doubt the matter could be satisfactorily arranged, and, as claimed by Cohn, agreed with Kretzinger that nothing should be done until a full consultation was had between the parties and their attorneys.

On the 5th, Oliver and Mitchell called on Kretzinger and informed him that they understood the stock of the company had been increased, thereby diminishing its value, and consequently the security of the notes, and that if this were so, he was not bound to renew them on the same terms. Upon this suggestion it was agreed that an examination should be made as to the condition of the company, value of its stock, etc., which was accordingly made on the same day. From the examination it appeared that on the 27th of September, 1884, at a meeting of the stockholders of the company the following resolution was unanimously adopted: “Resolved, that the capital stock of the American Varnish Company be changed from one thousand shares at $100 each, or a capital of $100,000, to two thousand shares at $100 each, or a capital of $200,000, and that a stock dividend be declared from the accrued profits.” And that in pursuance of this resolution, on the 3d of October following, a dividend of $12,036.55 was declared, $1907.31 of which was paid to Cohn on account of the stock held by him, which, instead of being paid by him on the notes held by Mitchell, as stipulated in the agreement, was invested by him in the new issue of stock at par value. Notwithstanding these developments, Mitchell and Oliver, as claimed by Cohn, expressed themselves satisfied with the condition of affairs, as the new stock seemed to be of par value, and another meeting was arranged for the 8th, at eleven o’clock A. M., with the understanding that nothing was to be done in the meantime by Mitchell.

On the morning of the 8th, Oliver wrote to Kretzinger as follows:

“My Dear Sir—I meant to have called this morning, but it could do no good, as your client is obdurate, and will make no concessions. Mr. Mitchell is now determined, in view of the opinion given him by his counsel, to push the matter with vigor. He therefore will take judgment against Cohn at once. I am sorry these matters could not have been amicably settled. Tours, ” etc.

This note was not received, however, until in the afternoon, but judgments, as therein indicated, were confessed that morning upon the three notes past due, amounting in the aggregate to $8457.80. Executions were issued upon these judgments, and were levied by the sheriff upon the stock securing the notes, and also on forty other shares of stock belonging to Cohn. Motions were thereupon made in the cases at law to vacate and set aside the judgments, which, upon a full hearing, the court declined to do, and its action was affirmed by the Appellate Court, "as already stated. The appellant thereupon filed a bill on the equity side of the court, praying that the sheriff be enjoined from selling the stock levied upon, and that Mitchell be decreed to specifically perform the agreement. This suit also resulted adversely to Cohn, as already seen.

The above statement of facts is substantially that of Cohn himself, which is materially modified in one or two particulars by the statéments of Mitchell and Oliver. Thus the latter testifies that before the maturity of the first note he told Cohn that it was in the hands of Samuels ;• that Cohn replied it was his intention to pay it; that this was repeated by him during the months of September and October; that it was not until some time in November that Cohn told him that he could not raise the money, and that the notes would have to be renewed; that previous to this time Mitchell had taken the notes back from Samuels. Mitchell also testifies that he learned for the first time on the 6th of December, 1884, that Cohn had subscribed for a part of the increased or watered stock, and that he had used his share of the October dividend in paying for the same. He, moreover, .testifies that he was not served with notice, and that he had no knowledge of the stockholders’ meeting at which the stock "was increased and a dividend declared, until long after it occurred. He further says, that upon inquiry he found the watered stock was not worth over forty-five to fifty cents on the dollar.

Upon this simple narration of facts it is manifest, from whatever aspect considered, these cases have no merit in them. So far as the law case is concerned, that is practically abandoned on the argument. As to the chancery case, that stands on no better footing than the other, though counsel seems to have more confidence in it.

It is to be remarked, in the first place, courts of chancery have a large discretion in this class of cases. It is true it is a judicial discretion, and is therefore subject to review where relief is denied in a case clearly brought within the general principles which control courts of equity in the exercise of this branch of their jurisdiction. A court of review, however, before interposing in any ease must be able to say there has been an abuse of this discretion. It results from this general principle, that every case of specific performance must necessarily depend in a large degree upon its own special circumstances. (Andrews v. Sullivan, 2 Gilm. 327; Fish v. Laser, 69 Ill. 394; Allen v. Woodruff, 96 id. 11; Radcliff v. Warrington, 12 Ves. 332.) Again, the general rule clearly is, that a court of equity will not decree the specific performance of a contract relating to personal property unless there is some element or feature in it to show that the relief at law might not be adequate,—as, where the measure of damages resulting from the non-performance of the agreement is uncertain or difficult to ascertain, or where the thing contracted for has to the complainant some intrinsic or special value, and the like. The contract sought to be specifically enforced in this case is one relating solely to personal property. No special feature in the ease has been suggested as authorizing the relief sought, and the only authority cited as supporting the theory of the bill is McMullen et ux. v. Vanzant, 73 Ill. 192. The statement cited by counsel from that case, to the effect “that the fact that an action at law would lie on the agreement sought to. be enforced was no reason why it might not be enforced in equity, ” is certainly true, and would hardly be denied by any one. The case, however, has but slight bearing, if any, on the one before us. There are two elements of equity jurisdiction that enter into that case that do not in this,—fraud and an express trust,—the- latter alone being-sufficient to warrant the decree.

We will not stop, however, to inquire whether there is any element or feature in this case from which it may fairly be inferred that a remedy at law will not afford adequate relief, and thus take it out of the general rule that a bill will not ordinarily lie to enforce the specific performance of a contract relating to personal property, merely, for we shall place our decision on a different ground altogether. Nor is there any occasion to rest our conclusion on the defence of res juclicata, which is relied on mainly by appellees. We prefer, to place it, as we do, upop the broad ground that there is no equity in the case. Waiving all other questions, we ■ think it clear the appellant is in no position to ask a specific performance of the agreement in question. Before one is entitled to relief of the kind sought, it must appear that he has either .performed, or at least offered to perform, the agreement hiniself; and if an offer only is relied on, it must have been made within a reasonable time, or some sufficient excuse shown for not doing so. According to the plaintiff’s own showing, no offer was ever made to renew the notes in question until the first one was about four months past due. As these notes matured it was the duty of Cohn to prepare new ones, and go and tender them. The fact that they were in the hands of Samuels for a part of the time was not at all in the way of making a tender. Persons having money loaned out, secured only by hypothecated stocks that may be valuable to-day and worth nothing to-morrow, as was the case here, do not want their loans represented by past due or dishonored paper. • If a party liable on such paper has the right of renewal, he must promptly exercise it at the time of its maturity, or at least within a reasonable.time thereafter. That was not done in this case, and no sufficient excuse is shown for the delay. But this is not all. It affirmatively appears that the increasing of the shares of stock from one thousand to two thousand was effected largely through the instrumentality of Cohn, in the absence and without the knowledge of Mitchell. This necessarily diminished the value of the stock pledged for the payment of the notes, and Mitchell, under the circumstances, was under no obligation to accept renewed notes secured by this watered stock at its face value, which Cohn finally proposed to have him do. But even this is not all. Cohn was guilty of a palpable violation of his agreement with Mitchell, in not paying the $1907.31 stock dividend received by him on the notes in question, for which breach of duty not even the slightest excuse or justification has been shown.

The judgments of the Appellate Court in these cases are affirmed.

Judgments affirmed.