Opinion of the Court.

this path on the bank, and to be a construction of the lease by the parties themselves, which is entitled to regard in considering what was their intention in the making of the lease. Leavers v. Cleary, 75 Ill. 349.

The further objection made is, that the circuit court had no jurisdiction over the subject matter of the action because the land was in another State. Appellant resided within the jurisdiction of the court, and was personally served with pro

cess.

The object of the bill was to obtain an injunction to prevent appellant from interfering with a right of way claimed by complainant over lands situated in the State of Indiana, under a lease, the controversy involving the construction of the lease. The jurisdiction of equity by way of injunction is strictly in personam. It is well settled that courts of equity may decree the specific performance of contracts respecting land situated beyond the jurisdiction of the State where the suit is brought. The ground of this jurisdiction, as said by Story, is, that courts of equity have authority to act upon the person; and although they can not bind the land itself by their decree, yet they can bind the conscience of the party in regard to the land, and compel him to perform his agreement according to conscience and good faith. (2 Story's Eq. Jur. sec. 743.) And in the section following he thus states the rule: "The proposition may, therefore, be laid down in the most general form, that to entitle a court of equity to maintain a bill for specific performance of a contract respecting land, it is not necessary that the land should be situated within the jurisdiction of the State or county where the suit is brought. It is sufficient that the parties to be affected and bound by the decree are resident within the State or county where the suit is brought, for in all suits in equity the primary decree is in personam, and not in rem." And in Massie v. Watts, 6 Cranch, 148, Chief Justice MARSHALL delivering the opinion of the court, it is laid down, "that in a case of fraud, of trust, or of contract, the jurisdiction of a court

Syllabus.

of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree." In cases of injunction, it is laid down as a general rule that "the court may exercise jurisdiction independently of the locality of the act to be done, provided the person against whom relief is sought is within the reach and amenable to the process of the court." (Kerr on Injunctions, 9.) And in treating of the subject of the jurisdiction of courts of equity to restrain proceedings in the courts of a foreign country, it is laid down in High on Injunctions, sec. 59: "The fact that the property which is the subject matter of the controversy is located in a foreign country will not prevent the court from exercising jurisdiction, where all the parties to the transaction are within its jurisdiction, and amenable to its process."

We are of opinion that the circuit court had jurisdiction of the subject matter of the suit. The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. JUSTICE WALKER: I neither concur in the reasoning nor conclusion of the majority of the court in this case.

MARGARET ENNIS

v.

LAWRENCE M. ENNIS.

Filed at Ottawa May 19, 1884.

1. CERTIORARI at common law-whether the appropriate remedy. The common law writ of certiorari will only lie to inferior tribunals or jurisdictions in cases where they proceed illegally, and no appeal or other mode of directly reviewing their proceedings is provided by law.

2. This proceeding does not lie to review and set aside an order of the probate court dividing and apportioning the widow's award between her and

Brief for the Plaintiff in Error.

the minor children of her deceased husband by a former wife, as that court has general jurisdiction in all matters touching the settlement of the estates of deceased persons, and orders concerning the widow's award come under that general jurisdiction. The proper remedy for a party aggrieved by such an order is an appeal to the circuit court.

3. ASSIGNMENT OF ERROR-when necessary. Where an appellant fails in this court to make an assignment of error as to an order awarding costs on the dismissal of a petition for a common law writ of certiorari, as made in the Appellate Court, such order will not be considered in this court. In such case the point made in the Appellate Court will be treated as waived in · this court.

WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Messrs. M. A. RORKE & SON, for the plaintiff in error:

The rights of the parties are to be determined upon an inspection of the record contained in the return to the writ, and not on a mere motion to quash the writ and to dismiss the petition made by a person who is merely named in the petition for the writ, and to whom the writ of certiorari was not directed. McManus v. McDonough et al. 4 Bradw. 180; Savage v. Board of Commissioners, 10 id. 204; Donahue v. Will County, 100 Ill. 94.

In a proceeding of this kind it is erroneous to render a judgment for costs. Arnold v. Thorpe, 9 Bradw. 357; Smith v. McLaughlin, 77 Ill. 596.

It is now the settled rule of law in this State that the common law writ of certiorari lies in two classes of cases: First, whenever it is shown that the inferior court or jurisdiction. has exceeded its jurisdiction; and second, whenever it is shown that the inferior court or jurisdiction has proceeded illegally, and no appeal or writ of error will lie. Hyslop et al. v. Finch, 99 Ill. 171; Savage v. Board of Commissioners, 10 Bradw. 204; Porter v. Board of Trustees, id. 343; People v. Wilkinson, 13 Ill. 660; Gerdes v. Champion, 108 id. 137.

Brief for the Defendant in Error.

The orders in question were not merely illegally or irregularly entered, but under the authority of the cases of Miller v. Miller, 82 Ill. 463, Marshall v. Rose, 86 id. 374, and the statute relating to administration of estates, (Hurd's Stat. 1881, pp. 112, 113,) there was an entire want of power in the probate court, ab initio, to enter the orders sought to be quashed by appellant. Hence, as the probate court exceeded its power or jurisdiction, the writ lies, whether appellant could have taken an appeal from those orders of the probate court or not. Hyslop v. Finch, 99 Ill. 184; Monroe v. People, 102 id. 406.

And where nothing has been done upon the assumed validity of the orders in question, and less than "five years" or "three years" have intervened between the entry of the orders sought to be quashed and the filing of the petition for the writ, a certiorari at common law will lie. Hyslop v. Finch, 99 Ill. 171; Miller v. Trustees, 88 id. 26.

Messrs. ENNIS & WALKER, for the defendant in error:

As to when a writ of certiorari at common law will lie, see Waite's Practice on Common Law Certiorari; People v. Hill, 53 N. Y. (8 Sick.) 547; People v. Andrews, 52 id. (7 Sick.) 445; People v. Stillwell, 19 id. (5 Smith,) 531; Trustees v. School Directors, 88 Ill. 100; Otten v. Lehr, 68 id. 64; Chicago and Rock Island R. R. Co. v. Fell, 22 id. 333.

If the court, upon a hearing, is satisfied that the writ was improvidently issued, or that justice and equity so require, it will dismiss the writ. Curtis v. Common Council of Utica, 45 How. 289; People v. Mayor of New York, 2 Hill, 9; Same v. Same, 5 Barb. 43.

A common law writ of certiorari can issue to the inferior tribunals and jurisdictions when they exceed their jurisdiction, and in case where they proceed illegally, and there is no appeal or other mode of directly reviewing their proceed

Opinion of the Court.

ings. Hyslop v. Finch, 99 Ill. 171; People v. Williamson, 13 id. 160; Miller v. Trustees of Schools, 88 id. 26.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The petition in this case was presented by Margaret Ennis in the circuit court, and was for a common law writ of certiorari, to bring before that court certain proceedings had in the probate court of Cook county, that the same, on inspection, might be quashed and held for naught. It appears from the allegations it contains, that petitioner was lawfully married to James Ennis, since deceased, who at the time of his death left him surviving petitioner, his widow, and nine children by a former marriage, and one child by his marriage with petitioner, all of whom were minors at the time of his death, except, perhaps, one or two of his first children, and who resided with him and constituted a part of his family; that afterwards such proceedings were had in the probate court that letters of administration were granted to petitioner and Lawrence M. Ennis, and on appraisers being appointed, as the law directs, they set apart the "widow's award," in value $1960. The grievance alleged is, that subsequently, on the 3d day of June, 1881, the probate court "divided" or "apportioned" the "widow's award," giving to petitioner and her child by her marriage with James Ennis, since deceased, $750, and to the seven minor heirs of her deceased husband by his former marriage, $1210. It is that order of the probate court so entered that petitioner seeks to have quashed and held for naught in this proceeding. It is thought this can not be done on a common law writ of certiorari. The proper remedy for a party aggrieved in such case would be on appeal to the circuit court. Undoubtedly the probate court has general jurisdiction in all matters touching the settlement and administration of the estates of deceased persons, and orders concerning the "widow's award" come within.

6-110 ILL.