upon the records a full release of the vendor's lien described in the bill as being a cloud upon the cross complainant's title. A cross bill for relief may be filed when the original bill is brought for the specific performance of a written contract which the defendant at the same time insists ought to be delivered up or canceled. Story, Eq. Pl.

§ 391. In the case at bar the bill is brought for the specific performance of a written contract for the sale of land as embodied in the deed, reserving a vendor's lien and describing notes for the unpaid purchase money; and the cross complainant John Gordon, one of the defendants below, insists that the contract reserving the lien should be canceled. It is well settled that laches cannot be imputed to the complainant in a bill who is in possession of the property in controversy. The statute of limitations, or a rule of limitation in equity, does not run against the party in possession of real estate, but only against him who is out of possession. Parker v. Shannon, 137 Ill. 376, 27 N. E. 525. Here, for the reason that the plaintiff in error John Gordon was in possession of the property, his cross bill is not demurrable upon the ground of laches.

The cross bill should have been retained for the purpose of bringing into court the bank, which was the owner of the subjectmatter of the litigation, so that the true state of affairs could be ascertained in equity. The defendant in error Johnson, representing the bank, came into a court of equity to enforce a lien for unpaid purchase money represented by notes given therefor. The cross bill filed by the defendant John Gordon set up equities arising out of the subject-matter of the original bill which entitled him to affirmative relief. He could, therefore, as a matter of right, present such equity by way of cross bill, and it was error to dismiss his cross bill. He sought to set up therein a set-off of what the bank owed him on account of his alleged overpayment to the bank against the purchase money sought to be collected. It is true that a court of equity will not allow such a set-off, unless the party seeking it can show some equitable ground for relief. The mere existence of cross demands is not sufficient, but a set-off is ordinarily allowed in equity when the party seeking the benefit of it can show some equitable ground for being protected against his adversary's demand. Quick v. Lemon, 105 Ill. 578; Houston v. Maddux, 179 Ill. 377, 53 N. E. 599.

For the errors in failing to make the Jacksonville National Bank a party to the proceeding, and in dismissing the cross bill of the plaintiff in error Gordon, the judg ment of the appellate court and the decree of the circuit court are reversed, and the cause is remanded to the latter court for further proceedings in accordance with the views herein expressed. Reversed and remanded.

(186 Ill. 300)

CITY OF CHICAGO v. CHICAGO & N. W. RY. CO.

(Supreme Court of Illinois. June 21, 1900.)

ASSUMPSIT-PLEADING-COMMON COUNTS-UN

LIQUIDATED DAMAGES-LIABILITY-EVI-
DENCE-SPECIAL PLEADING.

The defendant company built its tracks diagonally across certain streets, so as to necessitate the building of a viaduct to accommodate public traffic, and abutting property owners obtained judgments against the plaintiff for the injuries to their property by reason of such viaduct, which the plaintiff paid, and then filed a declaration in the common counts against the defendant to recover the amounts so paid. Held, that evidence to show the recovery of such damages by abutting property owners and their payment by plaintiff was not admissible under the common counts, since the liability was not for a debt, but for unliquidated damages, and was not paid at defendant's request, and there was no contract relation between plaintiff and defendant.

Magruder, J., dissenting.

Appeal from appellate court, First district. Action by the city of Chicago against the Chicago & Northwestern Railway Company. From a judgment in favor of defendant, affirmed by the appellate court (87 Ill. App. 611), plaintiff appeals. Affirmed.

C. M. Walker and S. A. Lynde, for appellant. E. E. Osborn, for appellee.

CARTWRIGHT, J. This suit came on for trial in the superior court of Cook county upon an issue formed by a declaration of appellant containing only the common counts and a plea of non assumpsit filed thereto by appellee. There had been a special count, to which a plea of the statute of limitations was interposed, and the court had overruled appellant's demurrer to the plea. The ruling on the demurrer is assigned for error upon the record, but no argument is made in support of the assignment, which is, therefore, regarded as abandoned. Chicago avenue runs east and west and Halsted street north and south in the city of Chicago, and the tracks of defendant cross these streets near the point of intersection, running in a diagonal direction from southeast to northwest. Plaintiff, in order to maintain the issue on its part under the common counts, offered evidence that the tracks obstructed the public use of the streets to such an extent that it became necessary at the point of intersection, in order to restore the streets for the use of the public, to build a viaduct over the tracks, with approaches on Halsted street and Chicago avenue; that plaintiff built such viaduct and approaches, and defendant contributed a large part of the cost thereof; that suits were brought against plaintiff by owners of property abutting on the approaches to recover damages to their property resulting from such construction, and that judgments were recovered by such owners against plaintiff, which it paid. Defendant objected to the proffered evidence on the ground that

it was not admissible under the common counts. The objection was sustained, and the evidence was not admitted. There being no evidence in support of the declaration, the court instructed the jury to return a verdict for defendant, which they did, and judgment was entered accordingly. The branch appellate court for the First district affirmed the judgment.

The various counts of the declaration were the following: First, indebitatus assumpsit for goods, wares, and merchandise sold and delivered; second, quantum valebant for goods, wares, and merchandise sold and delivered; third, a consolidated money count in indebitatus assumpsit for money loaned, money paid, laid out, and expended for defendant at its request, money had and received by defendant for the use of plaintiff, money due and owing for interest, and money due for work and material; fourth, a count for money found due upon an account stated. The common counts are founded upon an expressed or implied promise on the part of the defendant to pay money to the plaintiff in consideration of a precedent and existing debt. It has often been said that, where there is a contract fully performed, and nothing remains to be done but the payment of money by the defendant, the liability may be enforced under the common counts. It is said that in this case nothing remains to be done by the defendant but to pay the money demanded by the plaintiff. But that may be said of a defendant in any case, and the other part of the propositionthat there must be a contract fully performed by the plaintiff cannot be ignored. There was no contract relation between the plaintiff and defendant with respect to the payment of these damages, or concerning any liability of defendant therefor. Appellant sought to prove, not a contract expressed or implied, but an alleged duty of defendant which was performed by plaintiff. There is no pretense that defendant ever recognized the validity of the claims of property owners, or the amount of damages, or agreed in any manner to pay or satisfy them. No count of this declaration would give any hint to the defendant of the claim against which it was called upon to defend, and, of course, the evidence could not be applied to the counts for goods, wares, and merchandise, money loaned, money had and received, interest, labor and material, or money due on an account stated. They are all utterly foreign to the claim made at the trial. The only count under which it seems to be claimed that the evidence was admissible is the count for money paid out for defendant at its request. It is argued that, if the evidence had been admitted, it would have established defendant's duty and legal obligation to build a viaduct, so as to restore the streets to proper condition for public use; that it would have proved that plaintiff performed such duty to the public

owing by defendant; that, if defendant had performed the duty, it would have become liable to pay damages to property owners suffered by reason of the construction of the viaduct and approaches; and that in performing the duty plaintiff became liable to pay these damages, and paid them. It is argued that from these facts the law would raise an implied promise on the part of the defendant to repay plaintiff the money so paid. An action under this count, however, is only sustainable where the money was paid upon the request, expressed or implied, of the defendant. 2 Enc. Pl. & Prac. 1012; 1 Chit. Pl. 350; 1 Shinn, Pl. & Prac. 488. It is not sufficient that defendant was benefited by the payment, but it must have been done at its request, expressed or implied; and plaintiff could only recover on proof of facts that would show such a request of the defendant. One party cannot voluntarily make himself a creditor of another; and. if plaintiff paid the obligation of the defendant without its knowledge or consent, it cannot recover such payment back under this count. Durant v. Rogers, 71 Ill. 121.

Again, the alleged liability was not for a debt, but for unliquidated damages, which the plaintiff claims were caused by the performance of a duty owing to the public by defendant. The evidence did not relate to the payment of a debt, but of unliquidated damages. The defendant was not a party to the suits by the property owners, either on the record or by notice from defendant to appear and defend, and it was not bound by the judgments recovered. The admission of the evidence in this case would involve a trial upon the merits and an inquiry into the actual damages sustained by the property owner in each case. The amounts paid by the plaintiff being in the nature of unliquidated damages, and not debts due from the defendant, the declaration must be special. 2 Enc. Pl. & Prac. 1014; 1 Chit. Pl. 350. The court was right in refusing to admit the evidence under the pleadings. The judgment of the branch appellate court is affirmed. Judgment affirmed.

MAGRUDER, J., dissents.

(185 III. 629)

PHILLIPS et al. v. PHILLIPS et al. (Supreme Court of Illinois. June 21, 1900.) INFANTS-PARTITION-GUARDIAN AD LITEMPLEADING ADMINISTRATION OF OATH BY ATTORNEY.

1. Where the private interests of a guardian in a suit for partition are adverse and hostile to those of his wards, the court cannot proceed without the appointment of a guardian ad litem for the wards.

2. A decree in partition setting apart to minors lots 182 feet wide and running back 600 feet from the street. after two reports by other commissioners that the property was not divisible, cannot be sustained for injustice to such minors.

3. The administration, by his solicitor, of oath of a client to his pleading is improper.

Bill by Elizabeth Kloepfer against John Phillips and others for assignment of dower to defendant Adam Phillips and for partition, of certain realty. From a decree, John Phillips and others bring error. Reversed.

Hamline, Scott & Lord, for plaintiffs in er

ror.

CARTWRIGHT, J. Elizabeth Kloepfer, one of the defendants in error, filed her bill in the superior court of Cook county against plaintiffs in error and Adam Phillips, another defendant in error, alleging that plaintiffs in error were infants, and tenants in common with her of certain real estate in the village of Winnetka, in Cook county, subject to the dower rights of said Adam Phillips. The bill prayed for the assignment of dower to Adam Phillips and partition of the premises. Plaintiffs in error, the infant defendants to the bill, answered the same by their guardian, the other defendant, Adam Phillips. The guardian also answered in his own right, admitting the allegations of the bill, and, besides claiming dower in the premises, set up a claim for sums paid for special assessments to the amount of $1,500 as a lien against the premises. The answer filed by the guardian for the infants and the one filed in his own right setting up his claims were signed by the same solicitor. The issue made by the bill and answers was referred to a master in chancery, who proceeded to take the evidence, with the same solicitor appearing for Adam Phillips and the infant defendants. The master reported, finding the allegations of the bill to be true, and that Adam Phillips was entitled to dower and a lien on the premises for $1.021.11. The report was approved, and a decree was entered establishing the lien of Adam Phillips and for dower and partition, and commissioners were appointed to assign such dower and make partition. The commissioners reported that a division could not be made, and appraised the premises at the total value of $32,500. This report was approved, and a decree for sale entered. Afterwards the decree and all orders were vacated, and complainant was given leave to file an amended bill. The amended bill was substantially as before, but Peter Kloepfer, the husband of Elizabeth Kloepfer, was joined with her as a complainant. Adam Phillips answered the amended bill, claiming dower as before, and a lien for advances to the amount of $1,500. The infants also answered by Adam Phillips, their guardian, and both answers were signed, as before, by the same solicitor. After another reference to the master, the court entered another decree finding the rights of the parties as before, and that Adam Phillipe was entitled to dower, and establishing his claim against the premises at $1,068.46. Commissioners again reported that dower could not be assigned, or the premises divided, and appraised the total value of the

report, and ordered the premises sold. At the sale one of the solicitors for complainant bought the premises, but paid nothing, alleging that he bid them off in the interest of the parties with the view of finding a purchaser at private sale. The court vacated the sale. Afterwards the complainant, Elizabeth Kloepfer, filed her petition to set aside the last report of the commissioners and decree for sale, and the court set them aside, and discharged the commissioners. New commissioners were appointed, who filed a report showing an assignment of dower and partition of the premises. The report was approved, and the property partitioned according to a survey and plat. The master was then directed to take proof and report the reasonable amount of solicitor's fees and the costs and expenses, and to apportion the same. The master reported, allowing complainant's solicitor $1,000, and allowing costs taxed by the clerk at $467.75, which sums were apportioned among the parties. This report was approved, and a decree was entered allowing said solicitor's fees and costs, and apportioning the same. By the partition some of the minors were given lots with a frontage of 182 feet on the Green Bay road, and running back about 600 feet.

In all the proceedings in the court and before the master the same solicitor represented the interests of the infant defendants and the adverse claims of their guardian, Adam Phillips. It is the duty of a court to protect the rights of infant defendants, and to see that their interests are represented, not only by a proper guardian, or guardian ad litem not having an adverse interest, but also by counsel distinct from those representing hostile interests. In this case the infant defendants were not represented in the superior court or before the master. The interest of their father and guardian, Adam Phillips, was hostile and adverse to their interests, and they were represented only by him and by the same solicitor who acted for him in his individual right. He claimed a dower interest in their lands, and established a claim for $1,068.46, for which he was not only allowed a lien, but obtained a personal judgment against his wards, and an order for execution against them. The guardian could not represent the minors in a matter where he had an adverse interest, and his solicitor could not serve opposite and conflicting interests with fidelity to each. It was error for the court to proceed without the appointment of a guardian ad litem. Ames v. Ames, 151 Ill. 280, 37 N. E. 890; Roodhouse v. Roodhouse, 132 Ill. 360, 24 N. E. 55.

It is apparent that injustice was done to the infants in the partition finally made. After two reports that the premises were not susceptible of division, new commissioners were appointed for the purpose of making partition, on the representation of complainant that it could be done. In the partition finally made, lots 18% feet wide, running

back about 600 feet from the street, were set off to the minors; and it is common knowledge there is no possible use or sale for a village lot of such dimensions.

It is also assigned as error that the original and amended bill, the petition of complainant, and the report of the commissioners making partition were sworn to before complainant's solicitor, and that the same solicitor was at one stage of the proceedings appointed a commissioner to make partition, and acted as such. So far as we can discover, the commissioner had not acted as solicitor at the time he was appointed commissioner, and the report in which he joined was afterwards set aside. The question whether he was eligible is not now material. The various bills and a petition and the last report of commissioners were sworn to before the solicitor for complainant. By statute in Kansas and Michigan an attorney is made incompetent to act as an officer, and administer oaths in a suit in which he is employed, and that practice is against the rules in England and New York, and is generally discountenanced. Linck v. City of Litchfield, 141 Ill. 469, 31 N. E. 123; 2 Shinn's Pl. & Prac. § 1262. We have held, however, that the verification in such a case is not to be treated as a nullity, and the objection may be waived if the opposite party does not take advantage of it. Infants are generally presumed to avail themselves of all objections, and are not usually held bound merely by waiver. The case must be reversed on other grounds, and we content ourselves with saying that the action of the solicitor in administering the oaths to his client was improper. All orders and decrees entered in the case are reversed, and. the cause is remanded to the superior court of Cook county, with directions to appoint a guardian ad litem for the infant defendants, and to take such proceedings thereafter as may be propReversed and remanded.

er.

BOOTH v. PEOPLE. (Supreme Court of Illinois. June 21, 1900.)

CONSTITUTIONAL LAW-DEALING IN FUTURES -MISDEMEANOR-DUE PROCESS OF LAWSPECIFIC COMMODITIES-EQUAL PROTECTION OF LAWS.

1. Cr. Code, § 130, making it a misdemeanor to purchase options on commodities for future delivery, is not repugnant to the fourteenth amendment of the federal constitution, or to Const. 1870, art. 2, § 2, providing that no person shall be deprived of life, liberty, or property without due process of law; as such act is designed to probibit gambling in commodities, and as such is within the legitimate scope of the police powers of the state.

2. Cr. Code, § 130, making it a misdemeanor to purchase options on certain commodities for future delivery, is not repugnant to the fourteenth amendment of the federal constitution, providing that no state shall deny to any person the equal protection of the laws, in that it limits the terms of the act to a certain class of commodities, as the act is within the legitimate scope of the police powers of the

state, and it was competent for the legislature to choose those commodities which had been employed to carry out such gambling contracts.

Error from criminal court, Cook county; A. N. Waterman, Judge.

Alfred V. Booth was convicted of entering into a contract for the purchase of an option on corn for future delivery, and brings error. Affirmed.

Lee D. Mathias, for plaintiff in error. Charles S. Deneen, State's Atty., Albert C. Barnes, Asst. State's Atty., and E. C. Akin, Atty. Gen. (W. E. Caylor, of counsel), for the People.

BOGGS, C. J. The plaintiff in error was convicted and adjudged to pay a fine of $100 under an indictment which charged that he, on the 16th day of August, 1899, in said county of Cook, in the state of Illinois, aforesaid, unlawfully did contract in writing with the Weare Commission Company, a corporation, to then and there have to himself, to wit, to said Alfred V. Booth, a certain option to buy at a future time, to wit, on or before the 26th day of August, 1899, a certain commodity, to wit, grain, to wit, 10,000 bushels of corn, from the said Weare Commission Company, a corporation as aforesaid, which said contract is in the words and figures as follows, to wit: "Alfred V. Booth, Grain and Provision Broker. "Chicago, Aug. 16, 1899. "Sep. Corn, 1899. C 312 Paid.

"10 Weare Com. Co. "Good till close of change, Sat., Aug. 26, 1899. Weare C. Co. "J. J. C."

-contrary to the statute, and against the peace and dignity of the same people of the state of Illinois. The evidence explained the writing set out in the indictment to constitute an agreement giving defendant the option to buy 10,000 bushels of corn, at 311⁄2 cents per bushel, from the Weare Commission Company, at any time within 10 days after the 16th day of August, 1899. The allegations of fact set forth in the indictment were fully established by the evidence.

Counsel for plaintiff in error contends it did not appear from the proof the plaintiff in error entered into the contract with any other than the bona fide intention to accept the corn if he desired to avail himself of the benefit of the contract, or that he had any intent, when the contract was executed, to accept compliance with the contract merely by way of the payment to him of the difference between the contract price and the market price of the corn at the time of the maturity of the contract, and further contends it appeared from the evidence that the contract was in fact consummated by the actual delivery of the grain to him. Counsel for defendant in error do not question the position thus taken by counsel for plaintiff in error as to the facts proven on the hearing. Counsel for plaintiff in error admits the facts so charged in the

indictment, and established by the evidence in support thereof, justified the conviction, under the provisions of section 130 of the Criminal Code, as interpreted by this court in Schneider v. Turner, 130 Ill. 28, 22 N. E. 497, 6 L. R. A. 164, but insists-First, said section 130 is in contravention of the provision incorporated in the constitution of the United States, and also in the constitution of the state of Illinois, that "no person shall be deprived of life, liberty or property without due process of law"; and, second, that said section is violative of the provision of section 1 of the fourteenth amendment of the constitution of the United States, which provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." We will consider these points in order as made by counsel.

1. Liberty and property, as used in said constitutional provisions, include the right to acquire property, and that means and includes the privilege of contracting and making and enforcing contracts. Frorer v. People, 141 Ill. 171, 31 N. E. 395, 16 L. R. A. 492. A citizen cannot be deprived of an attribute of property, like the right to make a reasonable contract with reference to property, without "due process of law." Due process of law is a general public law of the land. Millett v. People, 117 Ill. 294, 7 N. E. 631; Ritchie v. People, 155 Ill. 98, 40 N. E. 454, 29 L. R. A. 79. The general assembly of the state of Illinois possesses full plenary power of legislation, except in so far as its powers are limited by the state or federal constitution. The state inherently possesses, and the general assembly may lawfully exercise, such power of restraint upon private rights as may be found to be necessary and appropriate to promote the health, comfort, safety, and welfare of society. This power is known as the "police power" of the state. In the exercise of this power the general assembly may, by valid enactments, i. e. "due process of law," prohibit all things hurtful to the comfort, safety, and welfare of society, even though the prohibition invade the right of liberty or property of an individual. 18 Am. & Eng. Enc. Law, 739, 740; Town of Lake View v. Rose Hill Cemetery Co., 70 Ill. 191. An enactment, to have that effect and be valid, must be an appropriate measure for the promotion of the comfort, safety, and welfare of society. It must be, in fact, a police regulation. Courts are authorized to interfere and declare a statute unconstitutional, or not the "law of the land," if it conflicts with the constitutional rights of the individual, and does not relate to, or is not an appropriate measure for, the promotion of the comfort, safety, and welfare of society. Ritchie v. People, supra. With the wisdom, policy, or necessity for such an enactment courts have nothing to do. what are the subjects of police powers, and what are reasonable regulations, are judicial questions, and the courts may declare enactments which, under the guise of the police power, go beyond the great principle of se

But

curing the safety or welfare of the public, to be invalid.

Laws for the suppression of all forms of gambling have, without exception, so far as we are advised, been regarded by the courts and law writers as a proper exercise of the police power. This is conceded by counsel for plaintiff in error, but his contention is the contract for entering into which the plaintiff in error was convicted is neither illegal nor within itself immoral, is neither void nor voidable, under principles of the common law; that this court so declared in Schneider v. Turner, supra; and that it is not within the power of the state, in virtue of the police power, to deprive a citizen of the right guarantied by the constitutions of the United States and of the state of Illinois to enter into a contract which is not within itself harmful, immoral, or injurious to the health, morals, or safety of the public. The proposition is that a contract which within itself is not harmful, immoral, or illegal, and which constitutes a "right of property" or "liberty," within the meaning of those words as employed in the organic law of the federal and state governments, cannot be denounced as illegal in the exercise of the police power of the state. This would be to place a limitation upon the police power which might greatly impair its usefulness, and often render its proper exercise entirely futile. It would restrict its operation to declaring that illegal which was already illegal. As we have hereinbefore said, it is not without the power of the general assembly, in the proper exercise of the police power, by an enactment otherwise valid, to declare that unlawful which was theretofore lawful, even if the act so condemned be an attribute of the right of liberty or property guarantied to the citizen by the constitutional provisions under consideration. The language of the constitutional provision is so chosen as to recognize the right of the state to deprive a citizen of life, liberty, or property by "due process of law." "Due process of law" is synonymous with "law of the land"; hence the law of the land may expressly prohibit and make criminal the doing of an act which, in the absence of such law of the land, would constitute a liberty or property right, within the meaning of the constitution, even though such act be not within itself immoral.

In Magner v. People, 97 Ill. 320, it was urged that certain provisions of the then existing game laws of the state, which declared it unlawful for any one to have in his possession wild fowl or birds of the kind designed to be protected by the statute, which had been lawfully taken or killed in another state, were in contravention of clause 8 of article 1 of the constitution of the United States, which confers upon congress the power to regulate commerce among the several states. It was there held that the object of the statute was the protection