Chicago, Burlington and Quincy Railroad Co. v. Frary et al.

B. C. Cook, for Appellant.

W. H. L. WALLACE, for Appellees.

CATON, C. J. The main question involved in this case has been examined and considered by this court with all the care and diligence of which we are capable, and with a due sense of its importance, and the influence which our decision must have upon the rights and interests of the individual citizen and the public. We have in this case been called on to inquire in what cases the powers of a court of chancery may be exercised to restrain the collection of the revenue of the State. The decisions of this court show, that in a large majority of the cases, involving the regularity of the proceedings for the collection of the revenue, we have met with irregularities in the proceedings to such an extent as to destroy the titles to real estate acquired at tax sales. In this way, has a court of common law, afforded a remedy for irregularities in the execution of the revenue laws. The same and even additional redress is afforded to parties whose personal property is seized for a tax illegally assessed. If in all these cases the court of chancery had taken the matter in hand, and examined the regularity of the proceedings, whenever an attempt was made to collect the revenue, and restrained its collection, if it were shown that the law had not been complied with in the assessment of the taxes, the result would have been that in many if not most cases the collection of the revenue would have been enjoined, and taxes would not have been collected. Under such a system of the administration of the laws, with so complicated a revenue system as ours, rendered so by a tender regard for the rights and interests of the citizen, no government could exist for a single year. Let us now, by sustaining this bill stretch out the strong arm of this court and stay the hand of the collector in every case where any irregu larity can be shown in the assessment of the revenue, and a flood of injunctions would be spread over the land at once, State and county revenue would cease to be collected, at least till the termination of protracted litigation, and the wheels of government would stop. It is no answer to say, let those whose duty it is to administer the revenue law do it with greater care, and do everything which the law requires, just as it requires, and at the time specified, and be careful that they do no more than is required. We must take things as they are and look at practical results.

Neither precedents nor reason, will warrant the use of the writ of injunction for such purposes, and to produce such results. Where the law affords an adequate remedy this writ cannot be

Chicago, Burlington and Quincy Railroad Co. v. Frary et al.

used, and especially where greater mischief will flow than good will result from it, the court will always withhold this species of relief. Equity cannot attempt to prevent, any more than it will redress, all wrongs. It is not in ordinary but in extraordinary cases that this writ is properly invoked. If the law can redress the wrong if it can repair the injury, equity must suffer it, and let the courts of law redress it. This is the general rule to which there are no doubt exceptions, and exceptions too in cases of the collection of taxes. Those exceptions are confined almost, if not entirely, to cases where the tax itself is not authorized by law, or if the tax itself is authorized, it is assessed upon property which is not subject to the tax. Such was the case of The Illinois Central Railroad Company v. The County of Mc Lean, 17 Ill. R. 291. There we enjoined a tax levied upon property not subject to that tax. But it is unnecessary to refer to all the cases to be met with in our own and other reports on this subject. Where an injunction has been finally sustained it will generally, if not always, be found to be of this class. That it is possible, that cases may sometimes be found, where this distinction has been disregarded from inadvertence, or from the peculiar circumstances connected with them. can find no other basis for a reasonable and practical distinction. If we permit the injunction to be issued where the tax is authorized by law and the thing taxed is liable to that tax, there is no stopping point short of enjoining all taxes, whenever any irregularity has intervened. This power the court of chancery has never assumed, nor could it, without the most disastrous consequences to the State. There may be cases, the particular circumstances, or peculiar hardship of which, will justify an exception to this general rule. This is not one.

We

We have examined the alleged irregularities in the levy of this tax, and are by no means prepared to say that they can be sustained any where. Indeed we think a satisfactory answer to all these objections possible, but we choose to place our decision upon the broad ground of jurisdiction, that all may distinctly know when the court of chancery will and when it will not interfere to enjoin the collection of the public revenue, or at least that they may know what the general rule on this subject is. We affirm the decree.

Decree affirmed.

Oder, use, etc., v. Putman. Winston v. McFarland, Ex'r, etc.

BYRON ODER, who sues for the use of Jesse Fisher, Plaintiff in Error, v. JONATHAN PUTMAN, Defendant in Error.

ERROR TO TAZEWELL.

The Supreme Court has not jurisdiction of a case, on error, while it is pending in the court below.

THIS case is stated in the opinion of the court.

S. D. PUTERBAUGH, and J. ROBERTS, for Plaintiff in Error.

N. W. GREEN, for Defendant in Error.

CATON, C. J. As there was no final judgment in this case, the writ of error will have to be dismissed. There was a demurrer filed to the first count, which was sustained, and judgment for the defendant for costs. On the common counts an issue was formed, which was not disposed of so far as is shown by this record. While that issue is pending in the court below, this court has no jurisdiction.

The writ of error must be dismissed.

Writ of error dismissed.

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166 289

RUSSELL L. WINSTON, Appellant, v. IRA MCFARLAND, Executor of James McFarland, deceased, Appellee.

APPEAL FROM LA SALLE.

Where an executory contract is in question, alleged to have been founded in fraud, the court will not aid either party.

THIS was an action of debt brought in the La Salle County Circuit Court, by Ira McFarland, executor, etc., of James McFarland, deceased, against Russell L. Winston (Appellant,) and tried at the Nov. term of said court, 1858, before HOLLISTER, Judge, and a jury, and a verdict had for the plaintiff for $1,184.06 debt, and $536.12 damages, and judgment entered thereon. A motion for a new trial was made and overruled, and a bill of exceptions signed and sealed, and an appeal taken by the defendant in the court below to this court.

The declaration contains four counts upon a promissory note.

Winston v. McFarland, Ex'r, etc.

On the trial of the cause, the only evidence offered on the part of the plaintiff, was a sealed note.

The defendant filed the plea of nil debet, and several special pleas, among them the following, marked as an additional plea,

to which a demurrer was sustained:

"And now comes the said defendant, and for an additional plea in this behalf, and says actio non, because, he says, that on the day of the date of the said note or instrument in writing in said 1st, 2nd, 3rd and 4th counts mentioned, (said note in said several counts being one and the same note) to wit: on the first day of August, A. D. 1854, to wit: at Peru, in the county aforesaid, the said defendant was then and there indebted to the said James McFarland, then in full life, in the sum of fifteen hundred dollars, and in that sum only, and the said note was given for the sum of three thousand dollars, as in said counts respectively is alleged, and the said defendant then executed and delivered to the said James McFarland a mortgage upon certain real estate in the county of Bureau, in the State of Illinois, to secure the said sum of three thousand dollars in said note mentioned; that said defendant was then apprehensive that he would be liable to suit upon certain supposed fraudulent and forged drafts which said defendant had before then endorsed, and that his property would be subject to levy and sale upon execution issued upon judgments which might be obtained against him, upon such supposed forged and fraudulent drafts, so endorsed by him as aforesaid, and to create an apparent incumbrance upon his said property, and to protect the same from levy and sale upon such executions, the said note and mortgage v. as executed as aforesaid, and for that purpose was the said note and mortgage so executed as aforesaid accepted by the said James McFarland, when in fact and in truth, the only indebtedness from said defendant to said James McFarland was the said sum of, to wit: fifteen hundred dollars, and this the said defendant is ready to verify, wherefore, etc."

To which plea the plaintiff demurred:

1st.

Generally.

2nd. That the facts set up in said plea, if true, do not render said note null and void.

3rd. That the facts relative to the consideration of said note, are not set up with sufficient certainty, and is in other respects informal and insufficient.

There was an order allowing the additional plea to be filed— and sustaining plaintiff's demurrer to said additional plea; trial and verdict for plaintiffs below.

Motion for new trial overruled.

Moir et al. v. Harrington et al.

In the assignment of errors was the following:

2nd. The court erred, in sustaining the demurrer to the additional plea of the defendant, filed by leave of the court.

CHUMASERO & ELDREDGE, for Appellant.

C. BLANCHARD, for Appellee.

BREESE, J. The point presented by the additional plea of the defendant below, the appellant here, has been so fully considered by this court, in the case of Miller v. Marckle, 21 Ill. R. 152, that we deem it unnecessary to go over the ground again.

We there decide, when a contract is executory, as this is, the court will interfere for neither party-that it will leave the parties where it finds them, aiding neither. The maxim, "in pari delicto, melior est conditio defendentis," is fully recognized.

The judgment is reversed, and the cause remanded, with leave to the plaintiff to traverse the plea.

Judgment reversed.

WALKER, J. I dissent from the judgment of the majority of the court in this case.

JAMES MOIR et al., Appellants, v. BENJAMIN HARRINGTON, et al., Appellees.

APPEAL FROM HENDERSON.

A plea which professes to answer the whole cause of action, but only answers a part, is obnoxious to a demurrer.

THIS was an action of assumpsit brought on a promissory note made by defendants.

The declaration contained special and common counts.

The defendant filed two pleas. The first was the general issue. The second plea set up, "that the said note was given for the sole and only consideration of the sum of $1,000, loaned to two of defendants, Hopkins and Harrington, on November 17, 1856, and that the other defendant, Phelps, signed the same as security without other consideration; that at the time of making the note and loan, the plaintiff corruptly contracted with Hopkins and Harrington to receive interest for the loan and forbearance of said money, for six months from date of said note, to