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The case was tried by the court without the intervention of a jury, and judgment rendered in favor of defendants. Plaintiff appeals.

lar question arose, it is said: "The defend- | situated in survey 743, claim 93." Defendants had put in evidence * ** the tes-ants Hardy and Demut filed a plea of not timony of the subscribing witnesses, given guilty. English was defaulted. when the will was admitted to probate, and this was prima facie evidence of its validity. This testimony raised a presumption of the competency of the testator, which would be valid until disproved by counter-testimony. It placed upon the plaintiffs in error the burden of showing the incompetency of the testator by proof sufficient to overcome the prima facie case made for him."

In view of the principle established by these authorities, it is plain that the instruction as to the burden of proof was calculated to mislead the jury. Conceding that the burden of proof, in the first instance, devolved upon the defendant to sustain the will, after he had put in evidence the will, and the testimony of the subscribing witnesses, given when the will was admitted to probate, the burden of proof no longer rested on his shoulders. It was then the duty of the jury to determine whether the testator possessed the necessary testamentary capacity from the weight of all the evidence introduced by the respective parties. The instruction did not, however, leave the jury free to determine the question from the weight of the evidence, but directed them that the burden still rested upon the defendant who asserted the validity of the will. This imposed a higher degree of proof on defendant than the law required. In Wilbur v. Wilbur, 21 N. E. Rep. 1076, (decided at the present term,) a similar instruction was held to be erroneous, and we refer to that one for a fuller expression of our views on the question. For the error indicated the judgment will be reversed, and the cause remanded.

(129 Ill. 646)

BRICKEY V. ENGLISH et al.1 (Supreme Court of Illinois. Oct. 31, 1889.) TAX-DEEDS.

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The only evidence offered by plaintiff to prove title in himself was a tax-deed, the judgment, certificate of purchase, and affidavit for deed, on which it was based, in each of which the description is as follows: "Part of survey No. 743, claim No. 93,-31.35 acres. The part of survey No. 743 is in no manner designated, and the deed is therefore void for uncertainty. People v. Railroad Co., 96 Ill. 369; Lancey v. Brock, 110 Ill. 610. The proceeding under which the deed was obtained was for the same reason also void. People v. Reat, 107 Ill. 581; Pickering v. Lomax, 120 Ill. 297, 11 N. E. Rep. 175.

The affidavit on which the deed issued was fatally defective for other reasons; especially in that it failed to state the facts relied on as showing service of notice on the occupants of the lands purchased. The language of the affidavit is "that this affiant served, or caused to be served, written or printed, or partly written and partly printed, notices of purchase at said tax-sale, upon Thomas Patrick and William Hayden and Frank English, the only persons in actual possession or occupancy of said piece or parcel of land or lot." Here is uncertainty in every essential. Who served the notice, how it was servel, whether written or printed, or partly written and partly printed, as well as when it was served, are facts upon which the affidavit furnishes no light whatever, and they are facts which by section 217, c. 120, Rev. St., must be particularly stated. Price v. England, 109 Ill. 394; Davis v. Gossnell, 113 Ill. 121; Wallahan v. Ingersoll, 117 Ill. 123, 7 N. E. Rep. 519; Gage v. Reid, 118 Ill. 35, 7 N. E. Rep. 127. The judgment of the circuit court is affirmed. The cost of additional abstract by defendants

1. A tax-deed for part of a certain survey, with-in error should be taxed to plaintiff in error.

out describing the part, is void for uncertainty.

2. Under Rev. St. Ill. c. 120, § 217, which requires an applicant for a tax-deed to make affidavit particularly stating the facts relied on as showing service of notice to the occupants, an affidavit "that this affiant served, or caused to be served, written or printed, or partly written and partly printed, notices," is fatally defective for uncertainty.

Error to circuit court, Monroe county; AMOS WATTS, Judge.

A. G. Gordon and W. H. Horine, Jr., for plaintiff in error.

WILKIN, J. This is an action of ejectment by plaintiff in error against defendants in error, to recover certain lands in Monroe county, this state, described in the declaration as commencing at the S. E. corner of survey 743, claim 93; thence along easterly line," etc.; giving metes and bounds, and concluding: "Containing 31.35 acres, more or less, and

66

1Reported by Louis Boisot, Jr., of the Chicago

bar.

(130 I11. 62)

INDIANAPOLIS & ST. L RY. Co. v. PEOPLE.2 (Supreme Court of Illinois. Oct. 31, 1889.) RAILROAD COMPANY-TAXATION-ESTOPPEL.

A railroad company, which has omitted some of its property from the schedule of property returned by it to the county clerk for assessment by the state board of equalization, is estopped from asserting that such omitted property cannot be assessed by the town assessor because it should

have been included in such schedule.

Error to county court, St. Clair county; JOHN B. HAY, Judge.

This was a proceeding by James D. Baker, collector of St. Clair county, to obtain judgment for delinquent taxes for the year 1886 against real estate described as "total real estate other than track, Schedule D, lot 5a, survey 780, 18 acres." Plaintiff in error objected, on the ground that said real estate

2 Reported by Louis Boisot, Jr., of the Chicago bar.

was "a part of, and included in, the right of | returned as railroad track, and so assessed; way between East St. Louis terminals of said and it was sought by the proceeding below to company. "On the hearing the collector ob- subject it to double taxation, the local assessjected to the introduction of testimony in ors having assessed it as real estate other support of said objection, on the ground that than railroad track. In attempting to bring said defendant company was estopped to urge this case within the scope of these cases it is the same in this proceeding because the sched- said: "Although this land is not included in ule returned by it to the county clerk of said the return of the company of its railroad county, in accordance with the provisions of track, that return is not binding on the state section 41, c. 120, Rev. St., did not contain board of equalization, as that board is given a statement of the property on which said tax power and authority, by committee or otherwas assessed, a copy of which schedule was wise, to examine persons and papers, (section filed with the objection. This schedule, by 109, c. 120;) and it is, of course, to be preits heading, states that in accordance with sumed that they discovered the omission, and the provisions of the statute the company assessed the road an additional sum per mile "makes return of its property for taxation on account of this property." The fallacy of by schedule as follows: Schedule marked this position consists in the unwarrantable 'A' shows the property designated by law assumption that we will presume, in the abrailroad track. * * * Schedule marked sence of all proof, that the state board did 'B,' * * * rolling stock. * ** detect the false return of the company, and Schedule marked C,' tools. * * * Sched- did make an assessment of property which it ule marked D' shows all real estate, other did not schedule for assessment, and that the than railroad track, belonging to or con- company can have the benefit of that pretrolled by this company, its location, and sumption to relieve it from the payment of a listed value." To this caption schedules tax assessed in conformity with its return. marked "A," "B," and "C" are attached. It was the duty of the company to make a Schedule D does not appear. To this return the vice-president and assistant secretary of the company make affidavit, stating "that the foregoing schedules, marked A,' 'B,' 'C,' and 'D,' contain, and are a full, true, and correct exhibit of, all the property owned or controlled by said company which is located in the county of St. Clair, state of Illinois." The objection to the offered proof was sustained, and judgment rendered in favor of the collector, from which this writ of error is prosecuted.

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true return of its property, and both the state board and the local assessor had a right to act upon the supposition that it had honestly discharged that duty; and the assessor was fully authorized, and it was his duty, to make the assessment for which the judgment below was rendered. There is nothing whatever in this record tending to show, nor did plaintiff in error offer to prove, any fact from which it could be inferred that the tax in question is unjust, or that it has been deprived of any right secured to it, as the ownE. C. Rhoads and John T. Dye, for plain-er of the property assessed, by law. tiff in error. M. W. Schaefer, for defendant formal objections to taxes, not affecting un

in error.

Mere

justly the right of the citizen, cannot be allowed to defeat judgments for their collection. Chiniquy v. People, 78 Ill. 570; Purrington v. People, 79 Ill. 11. The attempt here is to escape the payment of a just tax through an irregularity (if, indeed, there is an irregularity) resulting from the negligent or wrongful act of the property owner. We think the court below properly applied the doctrine of estoppel in excluding the of fered evidence. Its judgment will be affirmed.

(130 III. 225)

MALAER et al. v. HUDGENS.1 (Supreme Court of Illinois. Oct. 31, 1889.) PARTITION-RESALE-APPEAL-JURISDICTION,

WILKIN, J., (after stating the facts as above.) It is not claimed that lot 5a, survey 780, was included in the schedule marked "A." There is nothing in the record tending to show that it was not included in Schedule D. and therefore the presumption that it was returned as real estate other than railroad track must obtain. It is not pretended that it was assessed by the board of equalization, or that any tax whatever has been paid on it for the year 1886. The proof offered on the hearing, and excluded, was to the effect that this lot was in fact railroad track, and used by the company as such. Its competency is based on Railway Co. v. Miller, 72 Ill. 147; Railroad Co. v. People, 98 Ill. 357; and PeoA supplemental decree in partition, orderple v. Railroad Co., 116 Ill. 181, 4 N. E. Rep. ing a resale of the land for the payment of costs, 480. All that is decided in these cases and does not, when there is no controversy over the the case of Railway Co. v. Goar, 118 Ill. 134, original decree of partition, involve a freehold, 8 N. E. Rep. 682, is that property situated as 89, giving the right to appeal directly to the suwithin the meaning of Rev. St. Ill. 1889, c. 110, this is claimed to be may be treated as rail-preme court in suits involving a freehold. MAroad track, within the meaning of the rev- GRUDER, J., dissenting. enue act; and that when used by a railroad company as such, and so scheduled, it is properly assessable by the state board of equalization, and not by local assessors. In each of the cases cited the property had been' bar.

Error to circuit court, Johnson county; O. A. HARKER, Judge.

1 Reported by Louis Boisot, Jr., of the Chicago

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Clemens & Warder, for plaintiffs in error. | for all of said lands; and an order was made approving such report. This writ of error was sued out of this court on the 14th day of November, 1888, and by it the record was brought directly from the circuit court to this court. The assignments of error are as follows: "(1) The decree of the court below at its April term, 1882, for the sale of the lands described for the costs of the suit, was a nullity, and void. (2) The court below erred in its order at the November term, 1883, approving the master's report of sale of the lands in question, under the void order of the court at the April term, 1882. (3) The court below erred in its order at the November term, A. D. 1884, approving the master's report of deed to C. N. Damron, under the sale based upon the void decree of sale at the April term, 1882. (4) The court below erred in not setting aside the sale of the master in chancery, reported at the November term, A. D. 1883, of said court. (5) The court below erred at its November term, A. D. 1884, in failing to cancel at that time the master's sale of said lands, when called to act upon the master's report of a deed to C. N. Dairon. By reason whereof the plaintiffs in error pray that the decree of the court below at its April term, A. D. 1882, be declared null and void, and the action of said court thereafter, at its November term, 1883, and at its November term, 1884, confirming and approving of the action of the master thereunder, be reversed," etc.

BAKER, J. Alexander Hudgens filed his bill in the Johnson circuit court against the plaintiffs in error, Constantine Malaer and Mahala Springs, asking the partition of certain real estate. At the December term, 1878, of the court, plaintiffs in error were defaulted, and a decree pro confesso entered. The court found that defendant in error was the owner in fee of an undivided eight-tenths of the lands, and that each of the plaintiffs in error was the owner in fee of an undivided one-tenth of said lands, and decreed partition, and appointed commissioners to make the same. The commissioners reported, showing the lands were not susceptible of division, and placing values upon the several tracts, which amounted in the aggregate to $1,400. At the same term of the court this report was approved, and the lands decreed to be sold; and the terms of the sale, as fixed by the court, required that 10 per cent. of the purchase money should be paid in cash, and the residue in 12 months,-the deferred payment to be secured by note, with personal security, and a mortgage on the premises. At the November term, 1879, the master in chancery reported that he had struck off said lands, on January 27, 1879, to Alexander Hudgens, for $933.333, but said Hudgens had failed to comply with the terms of the sale. The court thereupon ordered the master to resell the same. On March 23, 1881, a written notice, signed by the master, There is no doubt a freehold was involved was served on Hudgens, that unless he made in the partition suit, and in the decree rengood his bid on or before the 1st day of the dered at the December term, 1878, of the cirApril term of the court, 1881, he (the mas-cuit court; but no error is assigned which ter) would make application to have the claims that that decree was erroneous, or challands resold. At said April term an order lenges the fact that the rights, titles, and inwas entered, reciting such notice, and order-terests of the parties were as therein detering the master to readvertise and sell as pro- mined. The sole objects of the present writ, vided in the decree of 1878, and ordering that and of the assignments of error, are to call all additional expenses and costs occasioned in question the validity of the decree of the by the default of Hudgens should be taxed to April term, 1882, for the sale of the lands him. At the April term, 1882, an order was "to satisfy the costs," and of the order made made reciting the sale to Hudgens for at the November term, 1883, approving the $933.333; his failure to comply with the master's report of the sale of the premises, terms of sale; and that he had been notified in and of the order made at the November term, writing, more than 10 days before the first 1884, approving the master's report of the day of the term, to comply with said terms execution of a deed based on such sale. The of sale; and ordering, adjudging, and decree- rule is that, although a freehold may have ing that said lands be sold by the master in been involved in the suit, and in the decree chancery "to satisfy the costs." At the No- therein rendered, yet, if no objection is taken vember term, 1883, of the court, the master to that part of the decree relating to the freereported that in pursuance of the decree ren- hold, an appeal from, or writ of error that dered at the April term, 1882, he had, on the brings up, another part of the same decree, 10th day of July, 1883, struck off and sold having no relation to the question of freehold, the whole of said lands to C. N. Damron, will not lie to bring the record directly from subject to the right of redemption, for $35; the circuit to the supreme court. Cheney v. that being the amount of costs. An order Treese, 113 Ill. 444; Walker v. Pritchard, 121 was entered on November 22, 1883, approv- Ill. 221, 12 N. E. Rep. 336. A freehold is ing this report; and the cause was continued not involved, within the meaning of the for final report. At the November term, statute, (Rev. St. Ill., Ed. 1889, c. 110, § 89,) 1884, the master reported he had, in pursu- giving an appeal directly to, or writ of error ance of the decree rendered at the April term, directly from, this court, from or to the trial 1882, executed and delivered on the 15th day court, where the litigation may, on certain of November, 1884, to C. N. Damron, in de- contingencies, result in the loss of a freehold, fault of redemption, a deed of conveyance but which will not necessarily have that ef

to compel it to establish a station and stop its trains at a town on its line at which it has not been in the practice of receiving and delivering passengers and freight, under Act Ill. 1877, § 1, (2 Starr & C. St. 1924,) which provides that all railroad companies are required to build and maintection of freight, "where such railroad companies tain depots for the comfort of passengers and proare in the habit of receiving and delivering passengers and freight, at all towns and villages on the line of their roads having a population of five hundred or more," though such town has a larger population than 500.

Appeal from circuit court, Madison county; AMOS WATTS, Judge.

fect, or where the freehold may be directly affected by the judgment or decree, unless payment is made or some act done to arrest the sale of the land, or discharge a lien thereon for the payment of money. In order that there should be a right of immediate appeal to, or writ of error from, this court, the title to the freehold must be directly put in issue. Railroad Co. v..Watson, 105 Ill. 217. A freehold is involved, within the sense and contemplation of the constitution and the statute, 2. Where a petition for such mandamus alonly in cases where either the necessary result leges that such town is situated on the line of the of the judgment or decree is that one party seven miles apart, and has over 1,800 inhabitants; railroad about midway between two other towns gains and the other loses a freehold estate, or that many of them desire to travel on such road; where the title is so put in issue by the that there are various manufacturing and other pleadings that the decision of the case neces-enterprises in the town, that in order to procure transportation on the road the inhabitants are sarily involves à decision of such issue. San- obliged to go and to carry their freight to a town ford v. Kane, 127 Ill. 591, 20 N. E. Rep. 810. three and one-half miles distant; and that the acThe court, in decreeing in April, 1882, that commodation of the public in and near said town the lands should be sold for the payment of freight depot therein, a demurrer thereto should requires the establishment of a passenger and the costs that had accrued in the cause, and be overruled, as mandamus will lie at common in subsequently approving of the reports of law. the master, did not adjudicate upon any issue formed to try the title to the freehold, nor was it the necessary resuit of the decree and sale that either party either gained or lost a freehold estate. In fact, leaving out of consideration the partition decree of 1878, which is not brought here by this writ for review, there was in the proceedings in the cause no place or room for a contention between the parties to the suit in regard to the title to the freehold. If any contention in respect to the freehold has arisen, as the result of the decree of 1882 and subsequent orders, it is not between plaintiffs in error and defendant in error, but between them jointly and a third party, the purchaser at the master's sale; and that contention was not at issue or determined in this cause, and such purchaser is not a party to this record, or brought before us as a terre-tenant, or otherwise. The writ of error herein should have been sued out of the appellate court. For want of jurisdiction in this court to review the decree and orders brought here by this writ, and pass upon the errors assigned, the writ is dismissed.

MAGRUDER, J., (dissenting.) I do not concur. The suit is a partition suit. A freehold is involved. The costs are merely incidental to the main issue. In cases involving a freehold, the appeal should be to the supreme court, and this is true whether the decree disposes of the costs incurred in the suit, or of some other question therein. Appeals in the same case should go to the same court, and not to different courts.

(130 Ill. 175)

&

Geo. Hunt, Atty. Gen., for appellant. Wise
Davis, for appellee.

SCOTT, J. The petition in this case was exhibited by the attorney general in the circuit court of Madison county in the name, and on behalf, of the people against the Chicago & Alton Railroad Company, praying that the company be compelled, by a writ of mandamus, to establish a passenger and freight depot in the town of Upper Alton, upon the St. Louis, Jacksonville & Chicago Railroad, owned, operated, and controlled by respondent, at a suitable and convenient point, to accommodate the public and all persons desiring transportation for freights or passengers to and from such town, and to stop its trains, freight and passenger, or a sufficient number thereof to accommodate the public, and discharge freight and passengers thereat when so requested.

Undoubtedly railroad companies, unless controlled by charter contracts, or by some general law on the subject, are permitted much freedom of judgment or discretion as to the operation and equipment of their lines of road, and in the location and maintenance of depots, and in the adoption of the various conveniences for the public. That freedom to act for the best interests of the public in such matters is lodged in the president and board of directors. Where there is a failure from mere captiousness or other cause to so exercise the powers with which they are invested by law as to accommodate the public at business centers or elsewhere, or where there is such an abuse of their powers as

PEOPLE ex rel. HUNT, Attorney General, v. works a public wrong, the general rule is

CHICAGO & A. R. Co.

(Supreme Court of Illinois. June 16, 1888.) RAILROAD COMPANIES-STATION AND TRAFFIC Ac

COMMODATIONS-MANDAMUS.

1. Where neither the charter of a railroad company nor any other statute prescribes the rules for locating its stations, mandamus will not lie

the remedy must be obtained through legislation. The courts, either law or equity, are seldom, if ever, able to afford the requisite relief. In respect to the matter of locating Co., 64 Ill. 414: "Railroad companies, in ordepots this court said in Marsh v. Railroad der to fulfill one of the ends of their creation.

-the promotion of the public welfare,-should | fied in the statute, but it is not averred it is be left free to establish and re-establish their a point on its line of road where respondent depots wheresoever the accommodation of the is "in the practice of receiving and deliverwants of the public may require." More re-ing passengers and freight;" so the demand cently, in the case of Railroad Co. v. People, made by this petition does not come within 120 Ill. 200, 11 N. E. Rep. 347, the general any duty imposed upon respondent by the doctrine on this subject was restated, where provisions of this statute, nor does it appear it was said: "The company, however, is giv- it is made its duty by its original charter, or en, as it should be, a very large discretion in otherwise by law, to "establish a passenger determining all questions relating to the and freight" depot at the point indicated, and equipment and operation of its road. Hence to stop its trains, passenger and freight, for courts, as a general rule, will not interfere the accommodation of the public. It not being with the management of railways in these shown that respondent owes any specific respects except where the act sought to be duty in this respect, imposed by statute or enforced is specific, and the right to its per- otherwise, the right to its performance being formance in the manner proposed is clear so clear and undoubted that it will be enand undoubted." On turning to its original forced by mandamus, the judgment of the charter it is seen that the respondent corpora- lower court denying the writ must be aftion is declared to have the general manage- firmed. Judgment affirmed.

ment of its affairs for the complete exercise of its corporate powers, which of course include the right to fix the location and number of depots or stations at which it will receive and discharge freight and passengers on its line of road such as in the judgment of the company the public exigency demands.

99

ON REHEARING.
(Oct. 31, 1889.)

BAILEY, J. This was a petition for a mandamus, brought by the people of the state of Illinois, on the relation of the attorney general, against the Chicago & Alton Railroad Company, to compel said company to establish and maintain a station for the receipt and discharge of passengers and freight at Upper Alton, in Madison county.

The only act of the general assembly to which the attention of this court has been directed that seems intended to control this freedom of action or discretion given to railroad companies in such matters is the act of 1877. The petition alleges that said company is a But that act, it will be seen, does not aid the railroad corporation, organized under the demand made by this petition. It provides laws of this state, and owning, operating, (section 1, Sess. Laws 1877, p. 165) "that and controlling a line of railway in said counall railroad companies in this state carrying ty, known as the "St. Louis, Jacksonville & passengers or freight shall, and they are Chicago Railroad," and extending from Godhereby required to, build and maintain depots frey, a station in said county, to Wann, also for the comfort of passengers and for the pro- a station in said county, said stations being tection of shippers of freight, where such seven miles apart; that said company is a comrailroad companies are in the practice of re- mon carrier, and operates and runs upon and ceiving and delivering passengers and freight, over said railway two passenger trains daiat all towns and villages on the line of their ly from south to north, and one passenger train roads having a population of five hundred or daily from north to south, and two or more As has been seen, the prayer of the freight trains daily in each direction; that petition is that respondent may be compelled about midway between said stations there is "to establish a passenger and freight depot located upon the line of said railway the town in the town of Upper Alton," on the Jack-of Upper Alton, the same being an incorposonville branch of its road, "at a suitable and rated town or village containing over 1,800 convenient point to accommodate the public," inhabitants; that many persons require the and "to stop its trains, freight and passen- use of said railway in order to be transported ger, or a sufficient number thereof to accom-thereon as passengers to and from said town modate the public." Should the company be required to establish or appoint a station at Upper Alton for the purpose of receiving and discharging passengers and freight, it would follow, as a matter of course under the statute, it would be compelled "to build and maintain" a depot at that point if the town contained a "population of five hundred or more." But this statute does not make it the duty of respondent to "establish a depot" or station at every town, or village on the line of its road having a "population of five hun-depot and freight-house at said town of Updred or more. It simply requires it shall "build and maintain depots"-that is buildings-for the "comfort of passengers and for the protection of shippers of freight." This petition does allege the town of Upper Alton contains a population in excess of that speci

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of Upper Alton, and that in said town are many merchants, manufacturers, dealers, and business men, who require the transportation of freight, produce, and manufactures over said line of railway to and from said town of Upper Alton; "that the accommodation of the public living in and near to said town of Upper Alton, in the transportation of freight and passengers to and from said town, require, and long have required, that said Chicago & Alton Railroad Company establish a

per Alton, and stop its trains, both freight and passenger, thereat for receiving and discharging freight and passengers;" that said company has acquired, and for many years has owned, suitable and convenient grounds for the establishment of a depot and freight

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