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for what reason? Because it is not of a general nature, and is local to that kingdom?

The answers to these questions cover the objections which the defendant, according to my present understanding, raises against my proposition.

It is to be observed for what it is worth, that the rights of the plaintiff accrued under the act of 1819, before the act of 1845 was passed; and the introduction into the latter act of the additional words, "so far as the same is applicable," restrictive as they are, must not be permitted to shape or qualify the former act. But even if it should, and it be held that the former law holds no broader meaning than the latter (which I do not concede), yet it seems to me, and I maintain, that the doctrine of shifting inheritances is more fraught with equality and justice than the principle they would substitute for it, and consequently more consonant with and applicable to the condition of things as found and existing among our people and under our government.

There is no hardship in the rule, or in its operation. Whoso takes by law is no purchaser. The estate costs nothing, but it is a free gift, under the will which the law makes. What the law gives, it may give on condition, and may take away accordingly. Whoso takes by inheritance or devise, takes an estate defeasible in its nature. There is a power in the administrator to sell the estate of the intestate, now vested in the heirs, for the purpose of paying debts; and that too, though the heirs may have sold for value. Heirs and devisees may be defeated by a power of sale in executors. A devisee under one will may lose his estate, after many years, by the discovery of a subsequent will; and it would seem that purchasers for value at an executor's sale might lose their estate in the same way.

The fact that the rule may have been of feudal origin, an incident, original or derivative, of the feudal tenures (though I do not admit the fact to be precisely so), and interwoven with many other rules that are objectionable, and which have been discarded by most of the States, should not be made use of to condemn it, while it has merits in itself, or is harmless as a part of the great whole, for by such pro cedure, what, from our political standpoint, would be left to us of the whole common law,

or of ecclesiastical or civil law?

It does not devolve upon me to prove the affirmative of this proposition. The great body of the common law was adopted with exceptions. The exceptions should be proved. The Congress of 1787, in establishing the common law, with express modifications, may well be deemed to have made all the modifications it desired.

Another objection raised by defendant is that this rule, although once adopted, has been repealed, as I suppose, either expressly by the statute of wills of 1829 (Gale, Statute, 720. § 140), which repeals all laws inconsistent with that act, or impliedly, by the full legislation presented by that act, or anterior acts upon the same subject-matter; and it is claimed that now, as to descents, there is no common law rule, but only a statute rule.

ask when the repeal took effect? The ordinance of 1787 established a law of descents and wills, and the state legislature has many times made laws on the same subject-matter. When shall it be said that they perfected the law, so as to require no aid from the common law, and so shall be deemed to have abandoned it? Shall one say it was by the act of 1829, under which plaintiff's rights accrued? and yet the next legislature found further work to do, and almost every succeeding legislature, also, until 1845, when there was another revision, somewhat more full than before, and yet the subject is not at rest.

I am advised, also that defendant claims same advantage on the argument for repeal from § 50 of the act of wills, of 1829, as to the rights of posthumous children, and in this wise, that the statute, in providing affirmatively to this extent for after-born heirs, impliedly negatives any provision for other after-born heirs, embracing the principle contended for by plaintiff; for it is said, unless it has this meaning, it has no force, being only a reiteration of the common law. It con

But this law in fact is a new law. tains a new original provision. At the common law, the posthumous child was not deemed an heir until born. The estate, until his birth, descended to the nearest heir, with right of possession and pernancy of rents and profits. This statute gives to the child immediately, the title and back rents and profits, from the date of the death of the ancestor.

As to the other point, an express repeal, "laws conflicting," only, are repealed. The point on which the plaintiff in error relies, is not one in conflict with the statute of 1829.

The case of Clinefelter v. Ayres, 16 Ill. 329, is very apropos upon this question. It is a decision upon the same statute of wills of 1829, and upon this very point of implied repeal.

The failure on the part of the legislature to speak of shifting inheritances, the failure to define the term "brother," I have called a casus omissus in legislation. This is left then as at common law, and is to be determined by the common law.

dell v. Janney, 4 Gilm. 194, 205; Tyson v. PosBarnitz's Lessee v. Casey, 7 Cranch, 456; Betlethwaite, 13 Ill. 727; Gardner v. Collins, 2 Pet. 58; Levy v. McCartee, 6 Pet. 108; McCool v. Smith, 1 Black, 459, 17 L. ed. 218.

I cite these further authorities in support of my principal propositions:

Cutlar v. Cutlar, 2 Hawks (N. C.) 324; Caldwell v. Black, 5 Ired. 463; Dunn v. Evans, 7 Ohio, 169; Drake v. Rogers, 13 Ohio St. 21.

The matter of shifting remainders is analogous to that of shifting inheritances; and similar rules of law obtain as to them.

I present these authorities to show that they are sustained by American courts:

5 Conn. 100; 2 Sandf. Ch. 533; 8 How. 495; Cochran v. VanSurlay, 20 Wend. 365; 3 Pick. 360.

In view of these the conclusion is irresistible, that in Illinois, which early adopted the common law, and has not repealed or changed it in this particular; whose legislature and Repeal by implication is a doctrine not fav-court of final resort have ever looked to it for ored by law; and if indulged in now, let me rules of decision in all cases not otherwise pro

vided for; this rule, relied on by the plaintiff in | who were born at the time of distribution, were error, must be deemed to be the law of the state. entitled, and none others." Messrs. Sam. W. Fuller and H. F. Mather, for defendant in error:

We think the following propositions are well supported by authority, and are applicable to

the case:

"The descent and heirship of real estate is exclusively governed by the law of the country within which it is actually situate. No person can take, except those who are recognized as legitimate heirs by the laws of that country, and they take in the proportions and in the order which those laws prescribe."

Story, Conf. L. § 483; United States v. Crosby, 7 Cranch, 115; McCormick v. Sullivant, 10 Wheat. 192; Kerr v. Moon, 9 Wheat. 565; Oakey v. Bennett, 11 How. 33; 2 Washb. Real Prop. 413.

The common law of England, so far as the same is applicable and of a general nature, has been declared to be the rule of decision, and in full force in the state of Illinois, until repealed by_legislative authority.

Laws 1833, p. 425-Rev. Laws, 1845, p. 337. In Seely v. Peters, 5 Gilm. 130, the supreme court of Illinois decided, that the common law relating to division fences was impliedly abolished by the legislation upon that subject, which was inconsistent with it; much more should it be held, that express legislation shall prevail over the common law rule of descents, as to all cases within the scope of the statutes. The supreme court of Illinois has always looked to the statutes of that state, to determine who are the heirs of persons dying intestate.

Lesher v. Wirth, 14 Ill. 39; Tyson v. Postlethwaite, 13 Ill. 728; Detrick v. Migatt, 19 Ill. 146; McConnel v. Smith, Adm'r, 23 Ill. 611; Paschall v. Hailman, 4 Gilm. 285.

In the last case it was decided that the estate of an intestate is to be distributed according to the laws in force at the time of his decease, which accords with the general law on this subject.

2 Washb. Real Prop. 413; Miller v. Miller, 10 Met. 393.

We insist that the Illinois statute of willsin force at the time Mary Ann Wolcott died, controlled the descent and inheritance of her estate, without qualification or restriction by any inconsistent common law rule.

Whatever that law may have been as derived from the feudal law, the rule established by the English statute of distributions (22 and 23 Car. II. chap. 10), as construed by the courts, was different, and except infants, "en ventre sa mere," at the time of the ancestor's death, only those heirs who were living at the time of the descent cast, inherited the estate, and their shares were not to be diminished by after-born heirs of the same degree.

This will be seen by reference to Reeve, Descents, Introduction, pp. 71 to 75; Burnet v. Mann, 1 Ves. Sr. 157.

"The child must be in rerum natura, at the death of the intestate brother, whose estate is in question."

Wallis v. Hodson, Barn. Ch. 272. Judge Reeve stated his opinion, thus: "I am of opinion that such posthumous children, See 5 WALL. U. S., Book 18.

This being the construction of the English statutes, it furnishes a rule for construing those of Illinois on the same subject, and the supreme court of that state has decided that posthumous children inherit directly from the father, and not from their brothers and sisters.

Detrick v. Migatt, 19 Ill. 146; McConnel v. Smith, Adm'r, 23 Ill. 613.

They are regarded as if living at the time the descent is cast. There is no "shifting" of an inheritance to them, which was once vested in others.

It seems to us to be argument enough on this part of the case to show that the descent of the estate to Mary Ann Wolcott was within the scheme and plan of descents established by the law of 1829. Such statutes are everywhere retion of property within the several states, in all garded as controlling the descent and distribucases which come within their provisions; and this upon the theory that such laws are the supreme and paramount laws of the land.

We conclude our argument on this part of the case by saying that, while the plaintiff may be able to find a few cases, which have been decided in this country, recognizing the rule of "shifting inheritances," they have all been decided upon the ground that the statutes of the states in which they arose made no provision for the cases in question. It was so in North Carolina: Cutlar v. Cutlar, 2 Hawks, 324; Caldwell v. Black, 5 Ired. 463;-and in Ohio, when the case of Dunn v. Evans, 7 Ohio, 169, was decided. Drake v. Rogers, 13 Ohio St. 21.

The rule is not recognized by Kent, Washscents as existing in this country. burne, or any other writer upon the law of de

It was contended for in the case of Cox v.

Matthews, 17 Ind. 367 (1861) and was repudiated by that court.

See also 4 Kent, 374.

The cases are countless, almost, in which it has been held that the various statutes of the states furnish the rules of inheritance, as to all cases within their provisions.

Cook v. Hammond, 4 Mas. 467; Eyre v. Storer, 37 N. H. 114; Whitney v. Whitney, 14 Mass. 88.

Mrs. Wolcott was the only heir of her child at the time the descent was cast upon her. Her child did not and could not have any posthumous heirs, and being thus vested with the estate by virtue of the law of Illinois, she had the power to convey it, without restraint by any foreign and inconsistent rule of inheritance impairing or qualifying her title.

Mr. Justice Swayne delivered the opinion of the court:

This is a writ of error to the circuit court of the United States for the northern district of Illinois.

The plaintiff in error brought an action of ejectment against the defendant in error, in the court below, to recover the premises in controversy. The cause was submitted upon an agreed statement of facts. So far as we deem it necessary to consider them, they are as follows:

On the 29th of September, 1830, Alexander Wolcott bought of the state of Illinois certain lands, of which those in controversy are a part.

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At the time of the transaction he paid the purchase money and received the usual certificate.

He died on the 30th of October, 1830, leaving a daughter, Mary Ann Wolcott, his only child, and his wife, Ellen M. Wolcott, him surviving.

He left a will, duly executed, which contained the following provision: "I further give and devise to my said wife, Eleanor M. Wolcott, and my said daughter, all my freehold estate whatsoever, to hold to them, the said Eleanor M. Wolcott and Mary Ann Wolcott, their heirs and assigns forever."

Mary Ann Wolcott, the daughter, died on the 16th of January, 1832, age seven years, intestate and without issue.

On the 13th of May, 1833, Ellen M. Wolcott conveyed to David Hunter, his heirs and assigns, with a covenant of general warranty, "all her right, title, claim, and interest, both in law and in equity, which she has by will, indenture, or otherwise, by, from or through her deceased father, John Kinzie, or her deceased husband, Alexander Wolcott, of and to all the real estate of which they or either of them, died seised, or possessed, lying and situate in the town of Chicago, Cook county, and state of Illinois."

The grantor intending by these presents to convey all the real estate of which she is seised and possessed, lying and being and situate in the county of Cook and state of Illinois.

The premises in controversy were conveyed by the deed.

On the 5th of July, 1833, a patent was issued by the governor of Illinois for the land purchased by Alexander Wolcott as before stated, to his "legal representatives, heirs, and assigns." Ellen M. Wolcott, his widow, married George C. Bates, on the 26th of May, 1836.

The plaintiff, Kinzie Bates, is the issue of this marriage, and was born on the 13th of April, 1838, and is the only child of his parents. Ellen M. Bates, his mother, died on the first of August, 1860, leaving her husband, George C. Bates, then and still surviving.

The plaintiff in error claims title as the heir at law of his deceased half sister, Mary Ann Wolcott.

At the time of her decease the statutes of Illinois governing the descent of real estate of persons dying intestate, was as follows: "Estates, both real and personal, of resident or nonresident proprietors of this state, dying intestate, or whose estate or any part thereof shall be deemed and taken as intestate estate, and after all just debts and claims against such estate shall be paid as aforesaid, shall descend to and be distributed to his or her children and their descendants in equal parts; the descendants of a deceased child or grandchild taking the share of their deceased parents in equal parts among them; and when there shall be no children of the intestate, nor descendants of such children, and no widow, then to the parents, brothers, and sisters of the deceased person and their descendants, in equal parts among them, allowing to each of the parents, if living, a child's part, or to the survivor of them, if one be dead, a double portion, and if there be no parent living then to the brothers and sisters of the intestate and their descendants. When there shall be a widow and no child or

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children or descendants of a child or children of the intestate, then the one half of the real estate and the whole of the personal estate shall go to such widow as her exclusive estate forever, subject to her entire and absolute disposition and control, to be governed in all respects by the same rules and regulations as are and may be provided in cases of estates of femes sole. If there be no children of the intestate or descendants of such children and no parents, brothers or sisters, or descendants of brothers and sisters, and no widow, then such estate shall descend in equal parts to the next of kin to the next intestate in equal degree, computing by the rules of the civil law; and there shall be no representation among collaterals except with the descendants of the brothers and sisters of the intestate; and in no case shall there be a distinction, between the kindred of the whole and half-blood, saving to the widow, in all cases, her dower of one third part of the real for life, and the one third part of the personal estate forever."

Mary Ann Wolcott, from whom the plaintiff in error claims to have derived his title by inheritance, died nearly four years before his birth. During all the intervening time it is not denied that the title was vested in his mother and her grantee. Such was the effect of the statute. It is clear in its language, and there is no room for controversy upon the subject. Although born after the title became thus vested, he insists that upon his birth it became, to the extent of his claim, devested from the grantee and vested in him. His later birth and relationship to the propositus, he contends, is to be followed by the same results as if he had been living at the time of her death. It is alleged that the rule of "shifting inheritances," in the English law of descent, is in force in Illinois, and must govern the decision of this case.

*The operation of this rule is thus [*714 tersely illustrated in a note by Chitty, in his Blackstone: "As if an estate is given to an only child, who dies, it may descend to an aunt, who may be stripped of it by an after-born uncle, on which a subsequent sister of the deceased may enter, and who will again be deprived of the estate by the birth of a brother. It seems to be determined that every one has a right to retain the rents and profits which ac crued while he was thus legally possessed of the inheritance." Harg. Co. Litt. 11; 3 Wils. 526; 2 Chris. Bl. 208, n. 9.

Such is undoubtedly the common law of England. Watkins Descents, 169.

It is said the ordinance of 1787, which embraced the territory now constituting the state of Illinois, and the acts of the legislature of that state of the 4th of February, 1819, and of the 3d of March, 1845, are to be considered in this connection.

The ordinance created a court which it declared "shall have common-law jurisdiction," and it guaranteed to the people of the territory "judicial proceedings according to the course of the common law." There is no allusion in it to the common law but these. The two acts of the legislature contain substantially the same provisions. What is expressed in the second act and not in the first, is clearly implied in the former. The latter declared that "the common law of England, so far as the

same is applicable and of a general nature, shall be the rule of decision, and shall be considered as in full force until repealed by legislative authority." Rev. Stat. Ill. 1845, p. 337. Mary Ann Wolcott died, and the plaintiff in error was born before this act became a law, but it may be properly referred to as containing an exposition of the legislative intent in the prior act. Although the former act adopts "the common law of England" in general terms, it was undoubtedly intended to produce that result only so far as that law was "applicable and of a general nature."

By the common law, actual seisin, or seisin 715*] in deed, is indispensable *to the inheritable quality of estates. If the ancestor were not seised, however clear his right of property, the heir cannot inherit.

According to the canons of descent, hereditaments descend lineally, but can never ascend. This rule is applied so rigidly that it is said "the estate shall rather escheat than violate the laws of gravitation."

The male issue is admitted before the female. When there are two or more males, the eldest only shall inherit, but females altogether.

Lineal descendants, in infinitum, represent their ancestors, standing in the same place the ancestor would have stood, if living.

On failure of lineal descendants of the ancestor, the inheritance descends to his collateral relations--being of the blood of the first purchaser-subject to the three preceding rules. The collateral heir of the intestate must be his collateral kinsman of the whole blood. In collateral inheritances, the male stock is preferred to the female. Kindred of the blood of the male ancestor, however remote, are admitted before those of the blood of the female, however near, unless where the lands have, in fact, descended from a female. Watk. 95.

mo

These principles sprang from the martial genius of the feudal system. When that system lost its vigor, and in effect passed away, they were sustained and cherished by the spirit which controlled the civil polity of the kingdom. The celebrated statute of 12 Charles II. ch. 24, which Blackstone pronounces a greater acquisition to private property than Magna Charta, was followed by no change in the canons of descent. The dominant principles in the British Constitution have always been narchical and aristocratic. The canons tend to prevent the diffusion of landed property, and to promote its accumulation in the hands of the few. They thus conserve the splendor of 716*] the nobility and the influence of the leading families, and rank and wealth are the bulwarks of the throne. The monarch and the aristocracy give to each other reciprocal support. Power is ever eager to enlarge and perpetuate itself, and the privileged classes cling to these rules of descent with a tenacity characteristic of their importance as means to the end they are intended to help to subserve.

Before the Revolution, some of the colonies had passed laws regulating the descent of real properties upon principles essentially different from those of the common law. In most of them the common law subsisted until after the close of the Revolution and the return of peace. It prevailed in Virginia until the act of her legislature in 1785 took effect, and it was, per

haps, the law upon this subject in "the northwestern territory," at the time of its cession in 1784 by Virginia to the United States. With the close of the Revolution came a new state of things. There was no monarch, and no privileged class. The equality of the legal rights of every citizen was a maxim universally recognized and acted upon as fundamental. The spirit from which it proceeded has founded and shaped our institutions, state and national, and has impressed itself upon the entire jurisprudence of the country. One of its most striking manifestations is to be found in the legislation of the states upon the subject under consideration. Of the results an eminent writer thus speaks:

"In the United States the English common law of descents, in its most essential features, has been universally rejected, and each state has established a law of descents for itself." 4 Kent, Com. 412.

It

Another writer, no less eminent, upon this topic says: "In the law of descents there is almost a total change of the common law. is radically new in each state, bearing no resemblance to the common law in most of the states, and having great and essential differences in all." Reeve, Desc. 11.

So far as British law was taken as the basis of this legislation, *in the different [*717 states, it was the statutes of Charles II. and James II., respecting the distribution of personal property, and not the canons of descent of the common law. The two systems are radically different in their principles.

The ordinance of 1787 contains a complete series of provisions upon the subject. They are the type and reflex of the action of many of the states at that time. The ordinance declared that the estates of persons dying intestate "shall descend to and be distributed among their children, and the descendants of a deceased child, in equal parts; the descendants of a deceased child or grandchild to take the share of their deceased parent in equal parts among them; and when there shall be no children or descendants, then in equal parts to the next of kin, in equal degree; and among collaterals the children of a deceased brother or sister of the intestate shall have, in equal parts among them, their deceased parent's share; and there shall in no case be a distinction between kindred of the whole and half blood."

We find here not a trace of the common law.

These provisions are diametrically opposed to all its leading maxims. We cannot infer from their silence that anything not expressed was intended to be adopted from that source by implication or construction.

The statute of 1845 is also a complete code It is to upon the subject of which it treats. be presumed to cover every case for which the legislature deemed it proper to provide. If the same question had come before us under the ordinance, we should have said with reference to the common law, conflict is abrogation and silence is exclusion. The spirit and aims of the two systems are wholly different. One seeks to promote accumulation-the other diffusion. One recognizes and cherishes the exclusive claim of the eldest son-the other the equal rights of all his brothers and sisters. The latter makes no distinction on account of age, sex, or half

blood. We apply to the act of 1845, also the re- | years afterwards, great injustice might, in mark that silence is exclusion. It speaks in many cases, be done, and utter confusion and the present tense of the state of things exist- uncertainty would prevail in reference to titles 718*] ing at the time of the death of the in- thus acquired. We are of opinion that the testate, and not of any change or different state doctrine of shifting descents does not prevail of things which might occur thereafter. If the under our laws, any more than the other Enlegislature had designed to provide for this glish rule, that kinsmen of the whole blood, case, according to the rule insisted upon, we only, can inherit." cannot doubt that they would have said so in express terms. The statute bears no marks of haste or inattention. We cannot believe it was intended to leave a rule of the common law so well known, and so important, to be deduced and established only by the doubtful results of discussion and inference. The draughtsman of the bill could not have overlooked it, and the silence of the statute is full of meaning.

One class of posthumous children is provided for. We see no reason to believe that another was intended to be included, especially when the principle involved is so important. The intention of the legislature constitutes the law. That intention is manifested alike by what they have said and by what they have omitted to say. Their language is our guide to their meaning, and under the circumstances we can recognize none other. We cannot go farther than they have gone. The plaintiff in error asks us, in effect, to interpolate into the statute a provision which it does not contain. Were we to do so, we should assume the function of the legislature and forget that of the court. The limit of the law is the boundary of our authority, and we may not pass it.

The principle contended for was applied in the case of Dunn v. Evans, 7 Ohio, 169. The case appears not to have been argued, and is briefly reported. It was also adopted in North Carolina, in Cutlar v. Cutlar, 2 Hawks. 324, and in Caldwell v. Black, 5 Ired. 463. No recognition of it is to be found, it is believed, in any other American adjudication.

The subject was elaborately examined by the
supreme court of Ohio in Drake v. Rogers, 13
Ohio St. 21, and Dunn v. Evans, was overruled.
It came before the supreme court of Indiana in

Cox v. Matthews, 17 Ind. 367, and received
719*] there also a thorough examination.
The result was the same as in the last case in
Ohio. The doctrine was repudiated.

The court said:

"Under the laws of this state it is contemplated that such change of title from one living person to another is to be made by deed duly executed, rather than by our statutes of descent. The feudal policy of tying up estates in the hands of a landed aristocracy, which had much to do with the shifting of descents as recognized by the English canons of descent, is contrary to the spirit of our laws and the genius of our institutions. It has been the policy, in this state, and in this country generally, not only to let estates descend to heirs equally, without reference to sex or primogeniture, but also to make titles secure and safe to those who may purchase from heirs upon whom the descent may be cast. Our laws have defined and determined who shall inherit estates upon the death of a person seised of lands. When those thus inheriting make conveyances, the purchasers have a right to rely upon the title thus acquired. If titles thus acquired could be defeated by the birth of nearer heirs, perhaps

The rule is sanctioned by no American writer upon the law of descents. Judge Reeve, speaking of distributees, says: "I am of opinion that such posthumous children who are born at the time of the distribution were entitled, and none others." P. 74, Introduction.

It is to be regretted that we have not the benefit of an adjudication by the supreme court of Illinois upon the subject.

Their interpretation-the statute being a local one-would of course be followed in this court. We have, however, no doubt of the soundness of the conclusion we have reached.

*We find no error in the record, and [*720 the judgment of the Circuit Court is affirmed.

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JAMES RITCHIE.

(See S. C. 5 Wall. 541-545.)

Repeal of statute, or prohibition takes away jurisdiction-internal revenue cases.

Under the act of 1833 citizens of the same state might sue each other for causes arising under the revenue laws.

When the jurisdiction of a cause depends upon a statute, the repeal of the statute takes away the jurisdiction.

Where a jurisdiction conferred by statute, is prohibited by a subsequent statute, the prohibition is, so far, a repeal of the statute conferring the jurisdiction.

The jurisdiction of suits between citizens of the same state in internal revenue cases, conferred by

the acts of 1833 and 1864, is taken away by the act [No. 337.]

of 1866.

Argued Jan. 10, 1867. Decided Feb. 18, 1867.

States for the District of Massachusetts.

PPEAL from the Circuit Court of the United

This is an appeal from a judgment of the circuit court of the United States for the district of Massachusetts, dismissing a bill in equity filed by the applicant, April 23, 1866, against the assessor and collector of the third collection district of Massachusetts, praying that the defendants might be enjoined from the distraint and sale of the complainant's property, in the collection of the tax assessed and levied upon an extra dividend of $100,000 paid in January, 1865, by the company, complainants, to their stockholders, being part of a certain sum received by the company as one of the stockholders in the Suffolk Bank. The complainants averred that the assessment of such tax was wholly illegal and void, and that the collection of the same would be without lawful authority. The defendants demurred, for the reason that the bill disclosed no ground for equitable relief. The demurrer was sustained and the bill dismissed, with costs.

The point upon which the case here turned is fully stated in the opinion, being a question of jurisdiction. Other points were argued by counsel.

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