Opinion of the Court. Syllabus.

682, under the title of legal tender cases, be reversed. The cases referred to are the latest decisions of the Supreme Court of the United States upon that subject, and are binding upon us, since the question involved arises under the Constitution of the United States.

The answer claims a homestead for John McInhill, but admits the fee to have been in Edward McInhill. The record contains nothing showing a homestead right in John McInhill. Decree reversed and cause remanded.

Decree reversed.

ANDREW M. WILEY et al.

v.

EDWARD C. SILLIMAN et al.

1. MUNICIPAL SUBSCRIPTION-election-excess of authority. By the charter of the Dixon, Peoria & Hannibal Railroad Company, of March 5, 1867, each town and township through which the road might be located was authorized to subscribe and take stock of the company not exceeding $35,000, upon a vote of the people in favor of the same. Under this law an election was had in the township of Elmwood upon two propositions for subscription, the first for $35,000 and the other for $40,000 additional to the first, both of which were carried and the bonds of the township issued: Held, on bill to enjoin the collection of taxes to pay the interest of the bonds that the sub scription of $35,000 was valid, but as to the $40,000, the election and subscription were void, and a decree dismissing the bill was reversed.

2. SAME-notice of election. The charter required twenty days' notice of an election to authorize a municipal subscription to the company. The election was called and notices thereof given under the charter, and pending such call, and, after posting notice, the legislature passed an act authorizing towns to subscribe $100,000 to this company-but no new notice was given under this act, and the election was held seven days after its passage: Held, that the amendatory act could not affect such election, and render a vote for a sum in excess of $35,000 valid.

3. SAME-curative act-power of legislature. Where the people of a township at an election voted in favor of a subscription of $40,000 to a railroad

Syllabus. Statement of the case. Opinion of the Court.

company without any authority of law, the general assembly afterward passed a special act declaring the election and subscription made under it to be legalized and binding upon the township: Held, that as the election and subscription were null and void, and as the legislature could not create a debt against a municipal corporation without its consent, the curative act was void.

APPEAL from the Circuit Court of Knox County; the Hon. ARTHUR A. SMITH, Judge, presiding.

This was a bill in chancery by appellants in behalf of themselves and sixty-one other persons named, and all others interested, to enjoin the collection of a tax levied to pay interest on bonds issued by the township authorities, which bonds were claimed to be illegal.

The bill was filed in the circuit court of Peoria County and taken to Knox County on change of venue.

The facts bearing upon the merits are stated in the opinion of the court in Marshall v. Silliman, 61 Ill. 218. On the hearing the injunction was dissolved and the bill dismissed.

Messrs. WEAD & JACK, for the appellants.

Messrs. HARDING, McCOY, & JOHN S. STEVENS, for the appellees.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

This case is, in all its substantial particulars, like the case of Marshall v. Silliman, 61 Ill. 218, the difference being that this relates to bonds issued by the town of Elmwood and the other to bonds issued by the town of Brimfield. The two cases have been submitted on substantially the same briefs. In the other case we found the $15,000 subscription to be invalid, and the others binding. Here we have two subscriptions, one for $35,000 and one for $40,000. This last for the $40,000 was void, for the reasons given in

Opinion of the Court. Syllabus.

the other case in reference to the $15,000. The election was held March 16, 1869, on a notice posted by the supervisors February 16, 1869. When the notice was posted the charter of the company only authorized a subscription for $35,000. That was voted on the same day under a proper notice issued in compliance with the provisions of the charter. The notice under which the vote for the $40,000 was held, was, as in the other case, a mere call for a special town meeting, signed by only twelve voters, and did not seek to follow the provisions of the charter, as indeed it could not do, since the power under that had already been exhausted. It is true that, on the 9th of March, 1869, the legislature passed another act authorizing towns to subscribe $100,000, but a new notice was not given. The charter required twenty days' notice, and only seven intervened between the passage of the amendatory act and the vote.

On the 17th of April, 1869, the legislature passed a curative act, the same, in substance, as that already considered in the other case, and on this counsel for appellee place their reliance. We have sufficiently considered it in the other

case.

The subscription for the $35,000 was valid. That for the $40,000 was not.

Decree reversed.

CYRUS NEWKIRK

V.

LEMUEL MILK et al.

1. TEXAS AND CHEROKEE CATTLE-different owners—which liable for infection. Where two separate lots of Texas or Cherokee cattle, owned and in the possession of separate owners in this State contrary to the statute of 1867, were each on the same feeding ground or section where the cattle of the plaintiff were being herded, and plaintiff's cattle became infected, from

Syllabus. Statement of the case.

which they died, the court, in a suit against the owners of one lot of these cattle, instructed the jury, that if plaintiff's cattle took the disease from either lot of the Texas cattle, and the testimony as to which lot communicated the disease was equally balanced, to find for defendants: Held, that the instruction was erroneous. If both lots of cattle contributed to infect plaintiff's cattle, so that it was impossible to say that one lot was more concerned in doing so than the other, it seems that the defendants were liable.

2. In such a case it is not error to refuse an instruction for the plaintiff that if the Texas or Cherokee cattle that were on the section where plaintiff's cattle run, infected plaintiff's cattle with disease, of which they died, then the defendants were liable, and could not be acquitted on the ground that the damages might have accrued from the acts of the owners of the other lot of cattle. If the disease was contracted from the other lot of cattle, defendants were not liable.

3. Neither was it error to refuse an instruction that if Texas or Cherokee cattle imparted the disease to plaintiff's cattle, without limiting it to defendants' cattle, the jury should find defendants guilty.

APPEAL from the Circuit Court of Iroquois County; the Hon. CHARLES H. WOOD, Judge, presiding.

This was an action on the case by the appellant against the appellees, to recover for damages sustained in the loss of cattle by infection from Texas cattle brought by appellees into this State.

Defendants pleaded the general issue. There was a trial, and verdict for appellees.

The following are the refused instructions asked by appellant referred to in the opinion:

1. "That if the jury believe, from the evidence, that the defendants, during the spring and summer of 1868, imported into this State Texas or Cherokee cattle, brought them to Loda, and drove them over section 25, the herding ground of Bosley; and that about the same time, Fowler & Earl, of Indiana, imported into this State Texas or Cherokee cattle, brought them to Paxton, and that several such cattle wandered over the same section 25; and if the jury believe further, from the evidence, that the Texas or Cherokee cattle that were on section 25 did impart a disease to the plaintiff's cattle, of which they died, then both the defendants, Fowler & Earl, would be

Statement of the case.

liable to the plaintiff for all damage sustained. They were all trespassers, and the defendants can not be acquitted on the ground that the damage might have accrued from the acts of a co-trespasser.

2. "If the jury believe, from the evidence, that the defendants, and Fowler & Earl, imported Texas or Cherokee cattle into Iroquois County, Illinois, and cattle belonging to the defendants, and also cattle belonging to Fowler & Earl, went over the herding ground where the plaintiff's cattle were, and Texas or Cherokee cattle did impart disease to plaintiff's cattle of which they died; and if the jury believe, from the evidence, that the cattle of defendants and those of Fowler & Earl had the power to impart the disease of which the plaintiff's cattle died, then the jury will find the defendants guilty." The following is the fifth instruction given for the defendants:

5. "If the jury believe, from the evidence, that the cattle of defendants, and the cattle called Fowler & Earl's, would communicate disease to native cattle, when they, the native cattle, came in contact with the cattle of defendants and of Fowler & Earl; and if the jury believe, from the evidence, that the cattle of plaintiff took a disease of which they died, either from the cattle of Fowler & Earl or from the cattle of defendants; and if they further believe that the testimony is equally balanced as to which of said cattle, defendants' or Fowler & Earl's, they, plaintiff's cattle, took the disease from, then the jury should find a verdict for the defendants."

The proof showed that plaintiff's cattle were herded with Bosley's herd on section 25; that defendants drove their Texas cattle across and over this land; and that Fowler & Earl also brought a lot of the same kind of cattle into the same county to Paxton, and that some of them wandered over the same section where plaintiff's cattle were being herded.

Mr. URIAH COPP, JR., for the appellant.

Messsrs. BLADES & KAY, for the appellees.