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Opinion of the Court.

It then appearing, that the vote was taken on the next day after the passage of the law, it is apparent that the ten days' notice could not possibly have been given, and such a notice being indispensable to the exercise of the power to levy the tax, it follows that it was unauthorized.

It only remains to be determined whether a court of chancery will take jurisdiction to restrain the collection of this tax. It has been held by this court, that equity will not interpose its power to prevent the collection of a tax, simply for mere irregularities. If, however, the tax is not authorized by law, or, if authorized, it is imposed upon property exempt from the burden, it is otherwise. Chicago, Burlington & Quincy R. R. v. Frary, 22 Ill. 34; Munson v. Miner, 22 id. 595; Metz v. Anderson, 23 id. 463. It has been held, that where a tax is attempted to be levied for the benefit of the officers making the levy, corruptly, equity will relieve. Scholfield v. Watkins, 22 III. 66; Merritt v. Farris, id. 308; Ryan v. Anderson, 25 id. 372. In the case of McBride v. The City of Chicago, 22 id. 574, it was said if the assessment was vitiated by fraud, or the tax payer was likely to suffer irreparable injury, or if the persons levying the same were not officers de jure or de facto, then equity might afford relief, but would not for mere irregularity.

In this case, if the allegations of the bill are true, and they must, for the purpose of the motion, be so held, it is manifest that the whole proceeding was a fraud upon the other taxpayers. The meeting is charged to have been held without the notice required by the law. Those attending (with the exception of two) had paid money to free themselves from the draft; and voted a tax on others to refund to themselves money, without any legal or moral obligation resting upon the town or inhabitants thereof, for repayment of the money thus appropriated. This we regard as such a fraud as requires a court of equity to stay its collection.

Again, the tax was wholly unauthorized, as there were no volunteers, substitutes, or drafted men who went into the service after the passage of the law, and it only authorizes the imposition of the tax for the purpose of raising a fund

Syllabus.

for the payment of such recruits to the army; unless there was at least a reasonable probability that there would be such, there was no power to levy a tax for the accumulation of such a fund. In this case, the bill contains the allegation that the quota of the town had been filled, and the necessity for troops having ceased to exist, it could not have been necessary to collect the tax. The decree of the court below is reversed and the cause remanded.

Decree reversed.

BRONSON MURRAY

V.
SAMUEL SCHLOSSER.

CONTRACT — rescission where time is made essence. In an action of forcible entry and detainer by vendor against vendee, under a contract making time of the essence of the agreement and giving vendor the right to rescind and hold vendee as tenant at will in case of failure to make payments as stipulated, it appeared that default was made and notice of rescission served on vendee's wife during his absence in the military service of the government, as a volunteer soldier ; the court instructed the jury that the contract could not be rescinded except by personal notice, and that notice upon vendee's wife while he was thus absent was not sufficient. Held, that the instructions were erroneous. That the contract required no personal notice of rescission to be served on vendee. And that the right of rescission being reserved by the vendor to be exercised at his option, in case of default, could be asserted by the vendor in any manner manifesting an intention to rescind and that the absence of vendee, however meritorious, did not change the terms of the contract or furnish immunity from the consequence of its violation.

APPEAL from the Circuit Court of Livingston county; the Hon. CHARLES R. STARR, Judge, presiding.

The case sufficiently appears in the opinion of the court.

Mr. J. M. BARRET, for the appellant.

Mr. CHARLES J. BEATTIE, for the appellee.

Opinion of the Court.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

On the 1st of March, 1860, Murray sold Schlosser a tract of land on credit, and the latter went into possession. By the terms of the contract the purchase money was payable in installments, and it was stipulated that, in the event of failure to make the payments as they should become due, time being made of the essence of the agreement, the vendor should have the right to rescind the contract, and hold the vendee or any person in possession under him, as a tenant at will on a rent equal to ten per cent interest on the purchase money, payable quarterly, and should enjoy the same rights as if the relation of landlord and tenant had been created by an original lease. Schlosser failed to pay, and, on the 1st of March, 1865, Bronson caused a notice addressed to Schlosser to be served upon his wife who was in possession, Schlosser being absent in the army. This notice declared a forfeiture of the contract of sale, and that Murray would hold Schlosser to the payment of rent. It does not appear that Schlosser ever paid rent. On the 30th of June, 1866, Murray served upon Schlosser a written demand of possession, and subsequently commenced the present action of forcible entry and detainer. On the trial the court instructed the jury that Murray could not rescind the contract of sale except by personal notice upon Schlosser of his intention so to do, and that the notice of such rescission served upon his wife, while he was in the military.service of the government as a volunteer soldier, would not be sufficient.

These instructions were erroneous. Under such a rule the vendee of land, by placing himself beyond the reach of personal service, could rob these stipulations in a contract of all their efficacy for the protection of the vendor. This was not the design of the contracting parties, and it is by the terms they have embodied in their contract that their respective rights and privileges must be ascertained. The contract requires no personal notice of rescission to be served on the vendee. The right of rescission was reserved by the vendor, to be exercised at his own option in case the vendee should

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fail to perform his covenants; and this right, as has been hitherto decided by this court, could be asserted by the vendor in any manner which would manifest upon his part an intention to rescind. Chisman v. Miller, 21 Ill. 226. The absence of the vendee as a volunteer in the military service of the government, however meritorious, did not change the terms of his contract, or furnish him immunity from the consequences of its violation. For the error in these instructions we must reverse the judgment.

Judgment reversed.

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197

THE PEOPLE OF THE STATE OF ILLINOIS, on the rela

tion of David H. FRISBIE.

ELIGIBILITY TO OFFICE 1088 of residence. On information in the nature of quo warranto to test the eligibility of a party to hold the office of judge ; held, that a conditional removal from this to another State, does not render the party upon return ineligible to the office of judge, under the 11th section of article 5, of our Constitution.

APPEAL from the Circuit Court of Bureau county; the Hon. E. S. LELAND, Judge, presiding.

This was an information in the nature of a quo warranto, by James A. McKenzie, State's attorney for the tenth judicial circuit, on the relation of David H. Frisbie, of Knox county, against Arthur A. Smith, judge of said tenth judicial circuit.

The first count of the information charges that on the 19th day of February, 1867, Arthur A. Smith, at the county of Knox, unlawfully usurped the office of judge of the tenth judicial circuit, and did then and there enter upon and exercise the duties and powers of the office of judge, and enjoy the privileges and immunities of said office, to the great injury of the relator

Statement of the case.

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and other citizens of Knox county, and said tenth judicial circuit. The second count charges substantially the same as the first, with the addition that on the 19th day of February, 1867, Arthur A. Smith unlawfully usurped the office of judge “well knowing that he had not been a resident of the State of Illinois for the term of five years next preceding said 19th day of February, 1867, and next preceding the date of the filing of this information.” It was stipulated on the part of the State's attorney and appellant, that the information might be presented at the March Term, A. D. 1867, of the Bureau Circuit Court; that no special pleas need be filed; that any and all legal defenses might be made without pleas; that the only point at issue should be whether or not appellant had been for the last five years a resident of this State.

That no question should be raised as to the fact that the governor, under the power vested in him by law, did commission appellant as judge of the tenth judicial circuit aforesaid, on the 19th day of February, 1867, and that he took the oath of office required by law, the only question in the case being that of residence. It was further stipulated that either party might use the affidavits of persons who would be competent to be sworn as witnesses in the cause, and that such affidavits should be entitled to the same weight as though the persons making them had sworn to the same matter in open court.

To maintain the issues on his part, appellant proved by John Becker, that he was a citizen of Knox county, Illinois; that he had known appellant in Knox county for the last twenty years; that he had frequent conversations with appellant after his return from the army in July, 1865, and before his return to Tennessee in August of that year; that he and appellant had discussed the question whether it would be possible for a northern man to live south; that witness had visited Tennessee where appellant was stationed during the war; that he was pleased with the country and climate, but had doubts about the temper of the people. Witness had some notion of removing to Tennessee himself, and freqently discussed the propriety of the step with appellant after his return from the army; that

2-44TH ILL.

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