tiff, she was asked by counsel for the village | the existence of one afforded no presumption if she had not been delivered of a bastard of the existence of the other, there is no sound child. Her counsel objected to the question, principle which requires notice of one to conand it was ruled out; to which ruling the vil-stitute, as matter of law, notice of the other. lage objected. The question was immaterial Even if there was such relation between to the issue being tried; and it is the settled them that one would frequently be found in rule in this state that the extent to which, connection with the other, yet it is not the upon cross-examination, immaterial ques- province of the law to declare that proof of tions may be put to a witness, rests in the one is proof of the other. This is only done sound discretion of the trial court. Wroe v. where the connection is universal, or so close State, 20 Ohio St. 460; Bank v. Slemmons, 34 that the law will not permit it to be denied. Ohio St. 142; Hanoff v. State, 37 Ohio St. Again, take the case at bar. The village ad179. In the case here, the cross-examination mitted that the walk was defective, in that was long and exhaustive, and the action of it had become dished by the settling of the the court did not trench upon the rights of middle stringers, but it strenuously contended the village in this respect. that in other respects its condition was good; that the outside stringers were sound, the boards firmly nailed to them, and that there was nothing in its appearance to indicate that it was dangerous to pass over it. Evidence was given which, if believed by the jury, would establish that contention. Now, it cannot be said that in the nature of things there is such close relation between a wooden sidewalk that has become dished by the settling of the middle stringers, and the defect which caused the injury to Mrs. Clagett, as that from the first the other is necessarily, as matter of law, to be presumed. We are cited to Shearman & Redfield on Negligence (volume 2, § 368) in support of the proposition given to the jury: but those authors, evidently, had in view defects of the same general character; for the cases of Weisenberg v. Appleton, 26 Wis. 56, and Aurora v. Hillman, 90 Ill. 61, which they cite in support of the proposition, were both cases in which the defect that caused the injury was of the same character, and fairly and naturally inferable from the general defect of which the corporation was shown to have had notice.

The court of common pleas refused to give to the jury certain special charges requested to be given by the village, some of which contained important legal propositions, which, if sound, were applicable to the facts of the case. There was a series of seven propositions. All were refused, and the exception was general. Some of these propositions, at least, were unsound. Whether the exception in this case can be distinguished from those in other cases, where they have been held by this court to be insufficient to point out the error complained of, we do not determine. This labor is unnecessary, for the majority of the court hold that the judgment should be reversed for errors in the charge of the court as given, which were specifically excepted to at the time.

The first proposition of the charge as given, to which the village excepted, was the following: "If the corporation had notice that the sidewalk was generally defective, it is not material whether the precise defect which may have caused the injury was known or not."

That the sidewalk had become dished and generally defective in that particular was not disputed; and in view of that fact the majority of the court are of opinion the charge was misleading. The jury might well have understood that the village was charged, as matter of law, with notice of the defect that caused the injury, if it knew the sidewalk had become dished. In order to charge, as matter of law, a corporation with notice of a particular defect from its knowledge of the existence of a general one, the first should be of the same character with the latter, or, at least, so related to it that the particular defect is a usual concomitant of the general one. As, for instance, in the case before us, if the village knew that the boards placed across the sidewalk were generally loose, or, in default of that knowledge, knew the stringers had become rotten, so that the nails would easily draw from them, it might be chargeable with notice of the defect which caused the injury, although, in fact, it did not know that the particular board that tripped the plaintiff below was loose. If, however, the general defect known to the village was not of a character to make the sidewalk unsafc, or was of a character totally unlike that which caused the injury, so that

Counsel for the village also excepted to the following proposition, which was given in the charge to the jury: "An order given by the corporation to an adjacent land proprietor to repair the sidewalk would be an admission of notice of defectiveness." It is, no doubt, true that a notice given by the corporation to repair is an admission of the existence of the defect ordered to be repaired; but is it, as matter of law, an admission of the existence of another defect, different in character, or of one having no necessary connection with it? In the case before us, the corporation admitted having knowledge that the sidewalk in question was dished and generally defective in that respect; that at each of two places a board had been nailed over a hole; and contended that it was these defects it had ordered to be repaired, and no others. It contended, not only that it had no notice of any other defect, but that in fact no other general defect existed; and this was the real contention between the parties respecting this part of the case. The plaintiff below introduced evidence to establish its contention that the sidewalk was old, the stringers decayed so that they would not hold nails, and the boards generally loose; while the village

(133 I11. 522)

before us for decision, and proceed to give our conclusion thereon, and enter judgment in the case, without that delay that might, but for this urgency, be desirable for a careful presentation of the reasons which have led to our conclusion.

gave evidence tending to show that the outside stringers were sound, the boards firmly nailed to them, and the walk generally in good condition. Under that state of the evidence it was misleading to instruct the jury that notice to repair was an admission of defectiveness. The only notice in dispute was The question may be stated thus: Does whether the village knew of the defect that the prohibition of section 12, art. 9, of the plaintiff below claimed caused her injury, constitution prevent the annexation of two and the jury must have understood the charge or more cities, incorporated towns, or vilas referring to that defect. It was equiva-lages to each other, in the manner provided lent to saying that the notice to repair, which by the provisions of the act entitled "An act the village admitted it gave, was an admis- to provide for the annexation of cities, insion of notice of the defect in dispute. It corporated towns, or villages, or parts of the left nothing on this point for the jury to find. same, to cities, incorporated towns, and vilIt ignored the fact that the village might lages," approved and in force April 25, 1889, have had knowledge of the dished condition (Laws 1889, p. 66, Rev. St. Ill., Ed. 1889, of the sidewalk, or that boards had been c. 24, § 211,) when such cities, incorporated nailed over small holes in it, and have re- towns, or villages are each indebted, and the quired it to be repaired in these respects, indebtedness of one or more of them exceeds. while it had no notice of the defect that the limit named in that section? We ancaused the injury, or even it there had been swer, in our opinion it does not. The lanno such defect in fact. As has already been guage of the section, so far as material to be shown, the sidewalk may have been dished, now stated, is: "No * ** city * * * and yet remain sound and secure in respect or other municipal corporation shall be alof the defect complained of. If this could be lowed to become indebted in any manner, or so, then notice of one cannot, as matter of for any purpose, to an amount * * * in law, be notice of the other. We think the the aggregate exceeding five per centum on question whether or not the village had no- the value of the taxable property therein; tice of the defect in dispute should have been * * * and any * * * city *** submitted to the jury upon all the evidence or other municipal corporation incurring any in the case. Judgment reversed. indebtedness as aforesaid shall, before or at the time of doing so, provide for the collection of a direct annual tax. * * *", It thus appears that the duty to levy the tax is inseparable from the power to incur the debt; and so, in every case contemplated by the section, that duty must be performed by the same agency that incurs the debt; and this can only be the corporate authorities of the municipality who are empowered by its charter to create debts for and on its behalf, and levy taxes for their payment. But where two or more municipalities are annexed to each other, pursuant to the statute, and thus form one municipality in the place and stead of the several that are thus united, it is manifest the resulting municipality does not become the owner of all the property of the several united municipalities, and bound to pay all of their debts, by virtue of any act of its municipal agencies, or of those of either of the united municipalities, but by virtue alone of the statute, and a majority vote of the electors of each of the united municipalities, at an election held pursuant thereto. A municipal corporation is purely of legislative creation, for local government in places where it is presumed the public welfare will be subserved thereby. Our constitution contains no restriction as to the organization of cities, towns, and villages, or the changing and amending or repeal of their charters, and consequently no restriction in respect to uniting or dividing or annulling them, save only that it cannot be by local or special law, but must be by a general law; and it is familiar law that, in the absence of constitutional restriction, the legislature may pro

TRUE, City Treasurer, v. DAVIS, County
Treasurer.

Oct. 29, 1889.)

(Supreme Court of Illinois.
MUNICIPAL CORPORATIONS-ANNEXATION.

Const. Ill. art. 9, § 12, which limits the extent of municipal indebtedness, does not render invalid the annexation of one municipality to another, pursuant to Rev. St. Ill. 1889, c. 24, § 211, though the indebtedness of one or both of them ex

ceeds the constitutional limit.

Appeal from circuit court, Cook county. Petition by John R. True, as treasurer of the city of Lake View, for a writ of mandamus against George R. Davis as treasurer of Cook county, commanding him to turn over to the petitioner all taxes received by him on behalf of the city of Lake View. The court dismissed the petition on demurrer on the ground that the city of Lake View, having been annexed to the city of Chicago, had no longer any legal existence. Petitioner contended that the annexation was unconstitutional. The petitioner appeals.

John S. Cook and John N. Jewett, (Edward Maher, of counsel,) for appellant. Francis Adams, for appellee.

PER CURIAM. The public welfare, with in the territory over which the city of Chicago is now exercising municipal authority, so manifestly demands an early and final decision of the question discussed upon this record that we forbear all inquiry as to the appropriateness of the proceeding to present that question, and assume that it is properly

vide for the organizing, uniting, dividing, or | son was within its jurisdiction, it would seem annulling such corporations, in such manner inevitably to follow that there is no constituas it shall deem best to promote the public tional ground to object that the burden of welfare. Morgan v. Beloit, 7 Wall. 613; some tax-payers will be larger in consequence Thompson v. Abbott, 61 Mo. 176; Colchester of annexation than it would otherwise have v. Seaber, 3 Burrows, 1866; Mount Pleasant been. It may be observed, in conclusion, v. Beckwith, 100 U. S. 514. "Persons re- that perfect equality between burdens and siding in or inhabiting a place to be incorpo- benefits in matters of general taxation is rated, as well as the place itself, are," says matter of theory only, and never has been, Dillon,-"both the persons and the place, and doubtless never will be, carried out in ind.spensable to the constitution of a mu-practice. Each individual within a municinicipal corporation." 1 Mun. Corp. (2d Ed.) pality may be presumed to be benefited by § 96. And the debt created by a municipal every municipal expenditure equally to the corporation can, in the nature of things, be amount that he is taxed therefor; but, in nothing more than a charge collectible by fact, all know that this cannot be true. Such taxation upon the persons and property with- expenditures, often, by no possibility can in the place included by the corporation. benefit some tax-payers, and sometimes such When, therefore, two or more municipalities expenditures may benefit no tax-payer; still are united, the resulting municipality in- all the taxable property within the municicludes the persons and the places of the sev-pality must be taxed for their payment. It eral municipalities; and it has the same prop- seems quite as rational to assume here that erty, and owes the same debts, which they since these municipalities are united, and all had and owed. Not a dollar of debt is their property and improvements belong to thereby added to the aggregate indebtedness the resulting corporation, the benefits to the chargeable against the persons and property several municipalities for which their indebtwithin the boundary of the resulting munic-edness was incurred now results to the beneipality, and nothing is thereby withdrawn fit of every tax-payer within that municipalifrom its resources. Obviously, this may re- ty. The judgment is affirmed. sult in requiring some persons and property within the parts of the municipality embraced by the former municipalities to pay more taxes than they would have had to pay had the corporations not been annexed to each other; but this would be so in all cases where one of the uniting municipalities is indebted more than one or more of the others; and in the cases before cited this objection was not taken into consideration as an element preventing the annexation of different municipalities. See, also, Id. §§ 36, 37, and cases cited in note, and Cooley, Const. Lim. (4th Ed.) 232, and cases cited in note, where the omnipotence of the legislature, in the absence of express constitutional restriction, to reorganize municipalities, and redistribute their property and burdens so as to affect different persons and property, is asserted.

(120 Ind. 360)

NIXON v. WHITELEY, FASLER & KELLY Co. (Supreme Court of Indiana. Oct. 17, 1889.) PRINCIPAL AND SURETY-MARRIED WOMEN.

indorse all notes given in payment for agricultA contract made by a married woman, to ural implements for the sale of which she was agent, is void, under Rev. St. Ind. § 5119, prohibiting married women from entering into any contract of suretyship, and declaring the same void.1

Appeal from circuit court, Fountain county; JOSEPH M. RABB, Judge.

Action by the Whiteley, Fasler & Kelly Co. against Mary F. Nixon upon a guaranty of payment of a note. There was a judgment for plaintiff, and defendant appeals.

John B. Martin, for appellant. Schwin & Booe, for appellee.

There is no provision in our constitution which makes a municipal debt a specific COFFEY, J. On the 15th day of Novemcharge or lien upon the persons or property ber, 1883, the appellee, by a written conwithin the municipality; nor is there any tract of that date, appointed the appellant as provision in that instrument which guaran- its agent to sell farming implements in the ties the resident within the municipality that territory of Fountain county, Ind., the his property shall bear the burden of taxa- agency to continue from that date until Aution only for the purpose of paying debts in- gust 1, 1884. The contract between the curred by the municipality while that prop-parties stipulated that when implements or erty had an existence there. It is within machines were sold the appellant should becommon observation that large amounts of come responsible therefor and should secure property, and, it may be, all the persons, the payment for the same, as follows: Onewithin a municipality when a debt is con- third, September 1, 1884; one-third, January tracted, cease to be there when the debt is 1, 1885; and one-third, September 1, 1885. payable. The property within a municipali- The contract further stipulated that all imty when a tax is levied for its payment can plements and machines sold should be settled alone be made to pay it. If, then, there is for in cash, or purchaser's notes indorsed by no constitutional restriction upon annexa- the appellant and made payable in a bank, tion of municipalities, and no constitutional right to exempt the property of tax-payers from burdens other than debts contracted by the municipality while the property or per

contract under the various statutes, see Jones v. 1 Concerning the power of married women to Holt, (N. H.) 15 Atl. Rep. 214, and note; Carriage Co. v. Pier, (Wis.) 43 N. W. Rep. 502, and note.

drawing interest at the rate of 6 per cent. | by a consideration of whether or not it was from August 1, 1884, until paid. Pursuant made by her or on her behalf, and upon a conto the terms of this contract and agency the sideration moving to her, or for the benefit of appellant sold a machine to Joseph Magirrin, her separate estate. To the extent that the and took from him the following promissory consideration was received by her, or inured note: "$100.00. Eugene, Ind., July 15th, to her benefit, or the benefit of her estate, she 1884. Fifteen months after date, for value will be held to have contracted as principal. received, I, of Eugene P. O., Vermillion To the extent that the consideration was recounty, Indiana, promise to pay to Whiteley, ceived by her husband, or any other person, Fasler & Kelly, or order, one hundred dol- or that it went to pay a debt or liability for lars, negotiable and payable at American which neither she nor her property were Express Office, Eugene, Indiana, with inter-bound, it will be held a contract of suretyest at eight per cent. per annum from 1st of ship. * * * The wife had no power to Oct., 1884, and with attorney's fees; value deal as principal, if in fact she was surety. received; without any relief whatever from Whether she was principal or surety will be valuation or appraisement laws. The draw determined, not from the form of the coners and indorsers severally waive presenta- tract, nor from the basis upon which the tion for payment and notice of protest and transaction was had, but from the inquiry, non-payment of this note. JOSEPH MAGIR- was the wife to receive, either in person or RIN." In settlement for machines sold by in benefit to her estate, or did she so receive. her the appellant turned over to the appellee the consideration upon which the contract the above note, with the following guaranty rests?" See, also, Ellis v. Baker, 116 Ind. indorsed thereon: "For value received I 408, 19 N. E. Rep. 193; Brown v. Will, 103 guaranty the payment of the within note Ind. 71, 2 N. E. Rep. 283; Cupp v. Campwhen due, and waive demand, notice of non-bell, 103 Ind. 213, 2 N. E. Rep. 565. The payment, and protest. MARY F. NIXON." question upon which this case must ultiThe complaint in this case is based upon mately be decided is the question as to wheththis guaranty, setting out the contract, and er the appellant is to be treated as the surety averring that, at the time of the execution of of the maker of the note above set out; besaid contract, note, and guaranty, the appel-cause, if she is surety, then, as she has no lant was a married woman, the wife of Mar- power to enter into a contract of suretyship, shall Nixon; that she was engaged in carry- the contract as to her is void. It is evident ing on business in her own right; and that that the consideration for the note did not said contract, note, and guaranty were exe-pass to her. It passed to the maker of the cuted in the transaction of said business. note. She sold the property which constiThe appellant demurred to the complaint, al- tuted the consideration of the note as the leging as a reason that the same did not state mere agent of the appellee, and had no infacts sufficient to constitute a cause of ac-terest therein further than the compensation tion; but her demurrer was overruled by the she was to receive for such sale. The origcourt, and she excepted. She filed an an-inal contract between her and the appellee swer in four paragraphs; and, the court sus- bound her to indorse the note, and it is fair taining a demurrer to the second paragraph of to presume that the guaranty written on the her answer, she excepted. Upon a trial of back of the note was accepted as a complithe cause by the court the appellee had judg-ance with such obligation. The guaranty in ment. The errors assigned here are-First, this case is not dated, and is therefore prethat the court erred in overruling the demur-sumed to have been executed at the same rer to the complaint; second, that the court time, and upon the same consideration, as below erred in sustaining the demurrer of the the note upon which it is indorsed. Bonduappellee to the second paragraph of the ap-rant v. Bladen, 19 Ind. 160. And the liabilpellant's answer; third, that the court erred ity of the guarantor is measured by the liain overruling the appellant's motion for ability of his principal. Smith v. Rogers, 14 new trial.

The first question presented for our consideration relates to the sufficiency of the complaint as a cause of action, and this question depends upon whether the contracts above set out are such as bind a married woman. Section 5115, Rev. St. 1881, provides that all legal disabilities of married women to make contracts are abolished, except as otherwise in that act provided. Section 5119 provides that a married woman shall not enter into any contract of suretyship, whether as indorser, guarantor, or in any other manner, and such contract as to her shall be void. In the case of Vogel v. Leichner, 102 Ind. 55, 1 N. E. Rep. 554, it is said that "whether a contract executed by a married woman is one of suretyship or not will be determined

Ind. 224. Had the appellant indorsed the note in suit in strict compliance with the terms of the contract between her and the appellee, as the consideration for the note passed to the maker, she would have been nothing more than a surety for such maker. Nurre v. Chittenden, 56 Ind. 462; Core v. Wilson, 40 Ind. 204; Houston v. Bruner, 39 Ind. 376; Dickerson v. Board, 6 Ind. 128. Legally considered, the contract between the appellant and the appellee was that she should become the surety to the appellee for the makers of such notes she took for the purchase price of implements and machines sold by her on a credit; that such a contract was in the teeth of section 5119, supra, the appellee was bound to know. It is not to be overlooked that this section expressly prohib

its a married woman from becoming either a guarantor or an indorser. That a married woman is not bound by a contract of the nature of the one now under consideration, see Allen v. Davis, 99 Ind. 216; Dodge v. Kinzy, 101 Ind. 102; Allen v. Davis, 101 Ind. 187; Brown v. Will, 103 Ind. 71, 2 N. E. Rep. 283; Engler v. Acker, 106 Ind. 223, 6 N. É. Rep. 342; Jones v. Ewing, 107 Ind. 313, 6 N. E. Rep. 819.

We are of the opinion that the complaint does not state a cause of action, and that the court erred in overruling a demurrer thereto. Judgment reversed, with instructions to sustain a demurrer to the complaint, and for further proceedings not inconsistent with this opinion.

that in said application the appellee represented and warranted that the land whereon said dwelling-house was situated was of the value of $50 per acre, whereas in truth and in fact said land was worth the sum of $35 per acre, and no more; by reason of which, said policy is void. The fourth paragraph of the answer avers that the policy of insurance in suit was issued upon a written application made therefor by the appellee, taken by the agent named in the second paragraph of the answer, and that in said application the appellee represented and warranted that the said honse was only four years old, whereas in truth and in fact said house was eight years old; by reason of which, said policy of insurance is void. The fifth paragraph is the same as the others, so far as it relates to taking the written application for the policy, and avers that in said application the appellee represented and warranted that said house was then of the cash value of $1,200, where1. In an action on an insurance policy providing as in truth and in fact it was of the value of that, "if the assured shall not be the sole and un- $800, and no more; by reason of which, the conditional owner in fee of said property, then this policy in suit is void. The appellees replied policy shall be void, "a general allegation that plain tiff is the owner of the property is sufficient, in the to these several answers in two paragraphs; absence of a motion to make more specific. the first being a general denial. The second 2. In such an action, in Indiana, it is not nec-paragraph is in the nature of a special non essary to file with the complaint a copy of the application upon which the policy was issued.

(120 Ind. 444)

PHOENIX INS. Co. v. STARK. (Supreme Court of Indiana. Oct. 29, 1889.) INSURANCE-PLEADING.

3. Where the insurer alleges that the answers to questions put to the insured contained in the application were false, it is a sufficient reply that the answers were written by the insurer's agent after he had informed the insured that no answers were necessary, and without his knowledge.

Appeal from circuit court, Vigo county; WILLIAM MACK, Judge.

Action by Thomas Stark against the Phonix Insurance Company of Brooklyn, N. Y., upon a policy of insurance. There was a judgment for plaintiff, and defendant appeals. J. McCabe & Sons and H. B. Jones, for appellant. H. C. Nevitt, B. F. Havens, and Davis & Davis, for appellee.

est factum to the application set out with the answers, and avers, in substance, that said application was brought to the appellee by one T. W. Howard, the agent of the appellant, in the form of a printed blank, who read the same over to the appellee; that he answered the questions therein contained, truly and correctly, the said agent undertaking and promising to write the said answers correctly, and undertook to fill out said application; that he answered that said house was, in his judgment, worth about $800, and that the same was about eight years old; that the real estate upon which said house was situated was incumbered by a mortgage to the amount of $1,400, and that said land was, in his judgment, of the value of $ per acre, and COFFEY, J. This was an action in the us- that said agent then and there informed the ual form, on a policy of insurance executed appellee that it was wholly unnecessary to by the appellant to the appellee, insuring him answer said questions, and then and there against loss by fire on his dwelling-house, left the blanks for the answers to said quesand the household goods therein contained. tions wholly unfilled and blank; that the apThe appellant answered in five paragraphs; pellee, being wholly ignorant of such busithe first being a general denial. The second ness, relied upon the statements of said agent, avers that the policy was issued upon a writ- and did not require said blanks to be filled; ten application made by the appellee, and that he had no knowledge of any limitation taken by a special agent with limited powers on the power of said agent, and that said apto take and forward applications for insur-plication was so blank when he signed and ance only, and that in said application the appellee represented and warranted that there was no incumbrance on the land upon which said dwelling-house was situated, whereas in truth and in fact there was then and there a mortgage for the sum of $1,400 to R. H. Cochran, which was a valid subsisting lien upon said land; by reason of which, said policy of insurance is void. The third paragraph avers that the policy in suit was issued upon the faith of a written application made by the appellee, taken by the agent mentioned in the second paragraph of the answer, and

delivered the same to said agent; that he never afterwards authorized any one for him to fill said blanks with the words which appear therein, or in any other manner; that said answers have been written therein since he signed and delivered said application, and while the same was in the possession of the appellant, without his knowledge or consent, and that all such answers are, as to him, false and fraudulent; that the appellant accepted said application so signed by him as aforesaid, and issued to him the policy in suit, with full knowledge of all the facts aforesaid, and