Merritt et al. v. Farris et al.

object of the law has been attained, and trifling and unimportant matters of form, should not be permitted to defeat the purposes of the law.

It was also insisted that a portion of the persons in the district liable to taxation, as well as a portion of the taxable property situated in the district, were not assessed, and that the tax was thereby rendered void, as being in violation of the 5th section of the 9th art. of the State constitution. That provision is this, "The corporate authorities of counties, townships, school districts, cities, towns, and villages, may be vested with power to assess and collect taxes for corporate purposes; such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same." It is first urged, that this levy is not warranted by the constitution, because it is not uniform as to persons and property, within the jurisdiction of the corporate body imposing the tax. The constitution, in its application to the various departments of the government and to individual rights, must receive such a construction as to give it a practical operation. It must be so applied as to promote and effect the objects of its adoption, and not to defeat the end for which it was established. Equality is provided for, both as to persons and property, in the levy and collection of all taxes by the constitution, whether for State or other purposes. And to hold that the omission to assess an individual, or to assess property, liable to taxation under the revenue laws, will render the whole tax levied under that assessment, to the extent of the revenue of which it forms a part, to be void, instead of accomplishing the object of the constitution, would only render its provisions authorizing the collection of revenue inoperative. If the omission to assess an individual, or to assess property liable to assessment, would render the whole district school tax void, it would for the same reason, render the whole township, county, and State levies equally so, when made by the same officer assessing for each of them. These taxes are all levied on the assessment made by the township or county assessors. And if his omission to assess property, destroys the equality of the entire tax of the district, it has the same effect upon the State, county and township tax, as the omitted property is liable to be assessed for all of these purposes, and its omission increases the burthen of other tax payers, to the extent of the amount it would have yielded. The framers of the constitution could not have designed, that such an omission should avoid the tax levied upon the property, which is regularly assessed. They intended to require, and did require, that the law should provide for a uniform mode of assessment and collection, which would not sanction exemptions from the burthens of taxation,

Merritt et al. v. Farris et al.

and they imposed the duty upon the officers acting under the revenue laws, of executing them fairly and impartially, but it never could have been intended that their omissions, should render the whole tax void, and to suspend the collection of the revenue. If an officer willfully and corruptly, or from gross negligence, were to make such omissions, he would doubtless be liable to make compensation in damages, to those suffering injury.

It was also urged, that this tax was not levied and collected by the school district, as contemplated by this provision of the constitution, as the assessment was made by the township assessor, and collected by the township collector, but it could only be assessed and collected by officers of the district. The law authorizes the directors to adopt the general assessment for the purposes of taxation, and upon it, to make their levy, and when made it is collected for and paid over to them. The various officers, concerned in the collection of the district school tax, are for the purposes of that tax, under the law, as fully district officers as if they were elected for the purpose by the voters of the district. And the mode adopted for the assessment and collection of this tax, leaves it entirely under the control of the district, and when it is done, the assessment and collection of the tax, is virtually made by the district.

This court, in the case of Munson v. Minor, post, and in the case of Chicago, Burlington and Quincy Railroad Company v. Frary, ante, p. 34, held that equity will not restrain a tax levied by officers either de jure or de facto, where the power to levy a tax is an incident to their office, and that mere irregularities and informalities in its levy or collection will not be inquired into by a court of equity, but that the parties supposing themselves aggrieved will be left to seek their remedy at law. In this case we find these defendants acting as directors, and the law having conferred upon them the power to levy this tax, even if the objections had as a matter of fact, been well founded, we could not hold that a court of equity has the power to grant relief. The decree of the Circuit Court must be affirmed.

Decree affirmed.

Marsh v. Bennett.

JOHN L. MARSH, Appellant, v. JAMES O. BENNETT, Appellee.

APPEAL FROM PEORIA COUNTY COURT.

Pleas which profess to answer the declaration, but only answer a part of it, are obnoxious to a demurrer.

In an action on a note, a plea which sets up, that the maker and payee of the note were owners of land, and that the payee took a conveyance of the land, in order to sell it on joint account, and gave the note as security for the prompt payment of the purchase money when the land should be sold, that it remains unsold, etc., the payee being anxious to sell, etc., is good, as showing a want of consideration.

THIS suit was brought in the Peoria County Court, for the June term, 1858. The plaintiff below filed a declaration upon a promissory note, containing two special counts and also the common counts. The defendant below demurred to the declaration, which was sustained as to the first special count, and overruled as to the others. Plaintiff below then filed an amended declaration.

To this amended declaration the plea stated in the opinion was filed.

The cause was tried at the January term, 1859, before the Judge of the Peoria County Court, and a jury.

The jury retired and brought in a verdict for the plaintiff for $1,927.36, and defendant moved for a new trial.

The court overruled the motion for a new trial, and rendered judgment on the verdict. Defendant excepted, and prayed an appeal.

H. M. WEAD, for Appellant.

BRYAN & STONE, for Appellee.

CATON, C. J. The third and fifth pleas are bad. They profess to answer the whole declaration, when they only answer a part of it, and the demurrer was properly sustained to them.

The fourth plea alleges that the consideration of note sued on was, that the plaintiff and defendant were, on the 24th day of February, 1857, owners in fee simple of the lands in the second plea described; and that the legal title thereof was vested in defendant for the purpose of sale and conveyance whenever said lands could be sold; that plaintiff was the equitable owner of one undivided half of said lands; that the legal title being vested in the defendant, and the equitable title of half of said lands being in the plaintiff, the defendant executed the note sued on, which was to be held by plaintiff as security for the prompt

Johnson et al. v. People.

payment to plaintiff of one-half of the purchase money for which said lands should thereafter be sold by defendant, after deducting all moneys advanced by defendant and costs and charges of sale. Avers that defendant has always been willing and anxious to sell said lands, that no part thereof has been sold, that he has received no money thereon, that said lands remain unsold, and that the legal title thereof is still vested in defendant for the purposes aforesaid; and that the equitable title to said undivided half of said lands is still vested in plaintiff. Concludes with a verification. To this plea there was also a demurrer, and demurrer sustained, and defendant abided by his plea.

This plea we think presents a good defense to the note. Our statute treats a promissory note as one part of an agreement, that is, the agreement to pay the money, and allows the other part of the agreement, that is, the consideration, on which the agreement to pay the money was made, to be shown by parol, thus forming an exception to the general rule, that an agreement cannot rest partly in writing and partly in parol. If a note was given without consideration, or if the consideration has totally or partially failed, this may be pleaded, and proved by parol. This plea shows a total failure of consideration, or rather a want of consideration. If the statements of this plea are true, there was no consideration for the promise to pay the money, till the maker should receive money for the use of the payee, upon a sale of the land. Till then, he could sustain no damage, and the promise to pay was without consideration. He might have held it till a consideration had arisen. This he did not choose to do, but brought his action, when in fact no consideration for the promise existed. The judgment must be reversed and the cause remanded.

Judgment reversed.

ANDREW J. JOHNSON, CORNELIUS F. BACKUS, and EDGAR L. MORSE, Plaintiffs in Error, v. THE PEOPLE, Defendants in Error.

ERROR TO RECORDER'S COURT OF THE CITY OF CHICAGO.

A conspiracy to obtain goods by false pretenses, is an indictable offense.
If a person indicted for a misdemeanor is put on trial, the right to a final judg
ment on the demurrer, is supposed to have been waived.

Johnson et al. v. People.

On an indictment for a misdemeanor, the plea of not guilty must be entered by counsel or the accused without an arraignment. Without an issue there is nothing to be tried, and if this is not shown, it is error to sentence.

If the record shows a trial by consent, the defect may be held to be cured; or the omission to enter the plea may be obviated by an order of court.

The awarding of a separate trial in criminal cases, is a matter of discretion, not assignable for error.

THIS indictment in the Recorder's Court of Chicago, contains but one count for conspiracy, the substance of which is: "That defendants, on the 3rd day of May, 1858, at Chicago, wickedly and unjustly devising and intending one Joshua B. Casey to defraud and cheat of his goods and property, did then and there falsely and fraudulently conspire, combine, confederate and agree together among themselves, to get and obtain knowingly and designedly, by false pretenses, of the said Joshua B. Casey, one horse, of the value of six hundred dollars, the property of him, the said Joshua B. Casey, with the intent then and there to cheat and defraud the said Joshua B. Casey of the said horse."

To this indictment, plaintiffs in error demurred in proper persons.

Plaintiffs in error applied for continuance immediately, and filed three affidavits.

Cornelius F. Backus, one of defendants, filed three affidavits for continuance of cause and separate trial, showing that on the same day in which indictment was found, he is required to go to trial; that he has a good defense, and that one Charley S. Brodber was a material witness, then absent; that he expected to procure his attendance, and could not safely proceed to trial; and discloses what he expects to prove, that he, Backus, had nothing to do with the trade, no way interested, and that the horse was sold to Johnson, etc.

Backus made an application for a separate trial, stating that he was included in the indictment, so that he could not be a witness; that he cannot have fair trial with the others, and states the reasons and facts.

A jury was called, who were impanneled to try the cause, and they found all the defendants guilty.

The motions for a new trial, and in arrest, were overruled. The points of error as made:

Court erred in overruling the demurrer.

Court erred in overruling the application for continuance.

Court erred in refusing separate trial to Backus.

Court erred in trying the cause, defendants not having been arraigned.

Court erred in not giving a new trial.

Court erred in not arresting the judgment.