Dexter v. Parkins.

cludes the defendant in execution, and of course, under the rule as laid down by Greenleaf before cited, his wife is excluded also. Where one is incompetent either by the common law or by statute on account of a supposed interest or bias, the other must be also. This doctrine is fully recognized in Vandiver v. Glaspy, 7 Rich. S. C. Law R. 14, and on principle is correct. In such cases as this of the trial of right of property a sonin-law claiming through the defendant in execution, more or less suspicion is naturally engendered, that the transaction is only colorable and it may be greatly to the interest of the defendant in the exccution, that property seized as his by an execution, should belong pro hac vice, to the claimant. It is not difficult to imagine such cases. In such case, the wife would be testifying directly in a case where her husband's interest was deeply involved. It would be very convenient in such cases to have the wife a witness, and not an honest disinterested neighbor.

But there is another reason of policy why the wife should be excluded, and that is for the sake of domestic peace. If, called as a witness and she does not testify as her husband wants her to testify, the consequences to her may be anything but agreeable in the privacy of their homes, and its comforts forever destroyed by this one refusal of the wife, to violate her oath and conscience, to advance the interest of her husband. Rather than hazard such consequences, it is far better that they should be excluded, and we hold policy and the law does exclude them.

In this case, the evidence does not show any delivery of the property to the claimant after the execution of the bill of sale. It is absolute on its face, yet the property remained as much in the possession of Smallridge as it did in that of the claimant after as before its execution. Such circumstances are not evidence of fraud, but are fraud absolutely. Thornton v. Davenport, 1 Scam. R. 296; Reed v. Eames, 19 Ill. R. 596, and cases there cited.

The fifth and sixth instructions asked by the plaintiff in execution should have been given without any qualification, for a preferred creditor has no greater right in such cases than a purchaser for a valuable consideration, as against judgment creditors. It is objected however, that the plaintiff in execution did not show any judgment against Smallridge. He did show an execution reciting a judgment, on which the levy was made which was sufficient under this proceeding. By giving notice that he will try the right of property, the claimant admits the regularity and existence of the proceedings against the defendant.

People ex rel. Peoria and Oquawka R. R. Co. v. County of Tazewell et al.

We think there should be a new trial, and the cause is remanded for that purpose, and for further proceedings not inconsistent with this opinion.

Judgment reversed.

22 147 132 585

22 147 46a 619

22 147

THE PEOPLE OF THE STATE OF ILLINOIS, upon the relation 101a 1335 of the Peoria and Oquawka Railroad Company, Complainants, v. THE COUNTY OF TAZEWELL, THE BOARD OF SUPERVISORS, and THE CHAIRMAN OF SAID BOARD OF THE COUNTY OF TAZEWELL, Respondents.

PETITION FOR A MANDAMUS.

Municipal corporations are not bound to discharge indebtedness elsewhere than at their treasuries.

Counties and cities have not the right to make bonds, issued in aid of railroads, payable in the city of New York.

Authorities representing counties and cities are not compelled, when the inhabitants thereof have voted in favor of issuing bonds to aid in constructing railroads, to issue the same, or to subscribe for the whole stock; there is a discretion resting with such authorities in that regard.

Only a proposition to aid in the construction of one railroad should be submitted to the people.

THIS was a petition for a mandamus which recites, That on the 12th of February, A. D. 1849, the General Assembly passed an act incorporating the Peoria and Oquawka Railroad Company, with power to construct a railroad from Peoria to Oquawka, and to Burlington, in Iowa. By amendatory acts, passed February 10th, 1851, and 22nd June, 1852, said company was further authorized to extend said road from Peoria eastward, through Tazewell county, to the Indiana State line.

That said company still exists as a corporation under said laws. Previous to August, 1853, said company had located and partly constructed its road through Tazewell county.

That Tazewell county adopted township organization at the general election in 1849, and has remained so organized ever since.

That at a meeting of the board of supervisors, held on the 23rd August, 1853, a petition was presented to said board, signed by numerous citizens of the county, praying that an election might be ordered to be held on the 24th day of September, 1853, at the usual places of holding elections, throughout the county, ordering the people to vote for and against a subscription by

People ex rel. Peoria and Oquawka R. R. Co. v. County of Tazewell et al.

the said county, of $75,000, to the Mississippi and Wabash Railroad Company, and for and against a subscription of $25,000 to the eastern extension of the Peoria and Oquawka Railroad Company. The petition suggested that payment of the subscription should be provided for by issuing a like amount of bonds of said county, bearing an annual interest of seven per cent., payable semi-annually at the American Exchange Bank, New York, having twenty years to run.

That on the same day a resolution was passed by the board, ordering an election in accordance with the prayer of the petition, and the clerk of the board directed to prepare the proper notices of the said election.

That at a meeting of said board of supervisors, held on the 26th September, 1853, the said board passed a preamble and resolution, reciting the former order for holding the said election, and declaring that the same had taken place as required by the order, and in pursuance of law; and that at said election, a majority of the votes of said county, taking as a standard the number of votes thrown at the last general election previous to said vote on said subscription, was in favor of said subscriptions, to wit, 1,824 in favor, and 710 against said subscriptions; the number of votes cast at the general election aforesaid being 2,314.

The petition further states that in fact, said petition was presented, said orders made, said election held in due form of law, and resulted as stated in said orders.

That it became the duty of the defendants to subscribe immediately to the stock of said road, pursuant to the petition, election and orders aforesaid.

That, though often requested, said defendants have refused to subscribe to said stock, or to issue any bonds in payment, as they were bound to do.

That on the 13th of September, 1858, at a regular meeting of the board of supervisors, the relators presented a petition to the board, requesting defendants to make said subscription of $25,000, and to issue their bonds, according to the vote of the people, the requirements of the law and the records and orders of the said board of supervisors.

That at the same time relators presented to said board the original stock subscription book of the said eastern extension of the Peoria and Oquawka Railroad Company, and requested the subscription of the defendants to be made in the same, and tendered to the defendants a certificate of two hundred and fifty shares of stock, at one hundred dollars per share, of the said eastern extension of said company, which defendants refused to accept.

People ex rel. Peoria and Oquawka R. R. Co. v. County of Tazewell et al.

That on the 14th September, 1858, at the same session of said board, the petition of relators having been referred to a committee, said committee reported against the same; which report was concurred in by the board, and the defendants thereby refused to subscribe to said stock or issue said bonds.

The relators then gave immediate notice to said board that they would apply at this term, to this court, for a mandamus to compel defendants to subscribe said stock and issue said bonds.

The petition concludes with a prayer for a mandamus to compel the defendants to subscribe $25,000 to the stock of said road, and to issue the bonds of the county in payment for the same, bearing date the 26th September, 1853, with seven per cent. interest per annum, payable semi-annually, at the American Exchange Bank, in the city of New York, and payable twenty years after their date.

By agreement, the petition was to stand as an alternative mandamus, and the board of supervisors were to show cause why a peremptory mandamus should not issue; waiving an issuance of the alternative writ.

The following causes were shown against the issuing of the peremptory writ:

First. The law under which the vote in the affidavit of the relators mentioned and set forth was taken, is a nullity, having been passed at the special session of the General Assembly of the State of Illinois, convened by the proclamation of the Governor of the State of Illinois, on the 22nd of October, 1849, when the subject of the law under which the said vote was taken, was not one of the subjects upon which the said General Assembly were specially called together to legislate by the said proclamation of the said Governor.

Second. The vote mentioned in the affidavit of the relators is void, the vote requiring the interest of the bonds to be paid at the American Exchange Bank in New York, when, by law, the county can only pay its obligations at the treasury of the county.

Third. The application by the relators to the said board of supervisors to subscribe the stock and issue the bonds in pursuance of the vote set forth in the affidavit of the relators, not having been made for more than five years after the vote was taken, is a waiver and abandonment of the right of the relators under said vote. And said application now comes too late.

Fourth. It is a matter of discretion with the said board of supervisors whether they will issue the bonds and make the subscription in pursuance of the vote.

Fifth. The Peoria and Oquawka Railroad Company are not the proper parties to be relators.

People ex rel. Peoria and Oquawka R. R. Co. v. County of Tazewell et al.

Sixth. That the relators have mortgaged their road for more than its worth since the vote has been taken, and have no longer the legal title to the same.

Seventh. The company have become insolvent, and if a subscription is made, the stock would be worthless.

Eighth. The vote mentioned and set forth in the affidavit of the relators is void, because it does not comply with the act under which the vote was taken, and is conditional.

Ninth. The vote mentioned in the affidavit of the relators is void in not conforming to the act under which the vote was taken, the act allowing the judges of the County Court, or board of supervisors, to pay for the stock purchased either by borrowing money or by issuing bonds, as said board deem most advisable. The vote allows the issuing of bonds only, and deprives the board of supervisors of a discretion conferred by the act, and is therefore void.

Tenth. The vote mentioned in the affidavit of the relators is void, for the reason that the vote was taken to subscribe to two roads at the same time.

The relators, to these objections filed the following traverse and demurrer:

And now come the said relators, and for traverse of so much of said defendant's return, numbered and marked "First," they say, that the said law of the said State of Illinois was such a law as was contemplated and included within the meaning and spirit of the proclamation, convening the said special session of the General Assembly, as will appear by the said proclamation, a certified copy whereof is hereto attached and made part of this traverse. And the relators further say, that the General Assembly of the State of Illinois, as appears by the statutes of the State, have subsequently recognized, approved, ratified, and in substance re-enacted said law; as by reference to the several acts of the said General Assembly will fully appear.

And as to so much of the said return marked "Third," they say, by way of traverse and also by way of demurrer to the said portion of said return, that the same is untrue in fact-inasmuch as it appears from the certified copies of the records filed with the relators' petition, that five years had not elapsed between the time of said vote being taken and the present application to the defendants to subscribe to said stock and issue their said bonds. And also, that a similar application for said subscription and for the issuing of said bonds had been made on the 7th day of March, A. D. 1854, as appears by the record attached to the petition in said cause.

And the said relators also submit by way of demurrer to said portion of said return, that the same, if true, would constitute