EVIDENCE OF EXISTENCE OF HIGHWAY.
6. Where the evidence showed that a road intersected by a railroad
was traveled by the public, and had been worked and repaired by the
authorities having charge of highways in that district, it was held
prima facie evidence that it was a public highway, legally established,
and sufficient to require a railroad company, when sued for injury
caused by a neglect to ring a bell or sound a whistle when approach-
ing the same, to show that it was not legally established, in order to
excuse itself from liability for neglect of this duty. Illinois Central
Railroad Co v. Benton, 174.
VOLUNTARY CONVEYANCE WITHOUT RELEASE.
1. Subsequent termination of occupancy by the grantor. It has been
held by this court that, where the owner of homestead premises con-
veys the same by deed or mortgage, without releasing the homestead
right, the fee in the premises, no matter what their value, passes to the
grantee, subject only to the right of occupancy on the part of the
grantor; and when such occupancy terminates, the homestead right
is annihilated, it not being an estate in the premises which can be
transferred as against a former conveyance that has passed the fee.
Hartwell et al. v. McDonald, 293; Hall et al. v. Fullerton, 448.
CHARACTER OF EXEMPTION FROM FORCED SALE.
2. As distinguished from a voluntary conveyance. But this court
has always made a marked distinction between cases of voluntary
conveyance by the homestead occupant, and those of a compulsory
conveyance by an officer of the law. It is not a mere homestead
right of occupancy which is exempted from levy and forced sale, but
it is the lot of ground occupied as a residence to the value of $1000.
Hartwell et al. v. McDonald, 293.
3. This court has uniformly held, that a judgment is not a lien
upon homestead premises; that the owner may sell or mortgage the
same free from the lien of the judgment, and that no liability can
attach to the land in the hands of the purchaser for the previous
judgment debt of his grantor. Ibid. 293.
4. On title after abandonment. Property is neither subject to a lien,
a levy or a forced sale, under judicial process, while occupied as a
homestead, and it does not vary the result whether the premises are
worth more or less than $1000. If worth not more than that sum,
the sale is prohibited by the statute, and if worth more, and none of
the requirements of the statute have been observed in making the
levy and sale, then the sale is unauthorized and void, and no title
passes. Ibid. 293.
5. In this case the premises, while occupied by the debtor, were
sold under judgment and execution against him. The premises ex-
ceeded in value $1000, but no jury was called, and no part of the
premises were set off, as required by statute. Afterwards, the debtor
ceased to occupy the land, having acquired another homestead, and
leased the premises to a tenant. The creditor, after such abandon-
ment, brought ejectment: Heid, that, as the sale, when made, was
unauthorized, he could not recover the premises or any portion thereof.
Hartwell et al. v. McDonald, 293.
SALE OF EXCESS OVER $1000 IN VALUE.
6. Where the answer to a bill to foreclose a mortgage sets up the
homestead exemption as a defense, if the bill and the proofs show
that the premises are worth more than $1000, a decree may be entered
for the sale of so much thereof as exceeds that value; but, in the ab-
sence of any such averment and proof, or any averment denying the
homestead right set up, no decree of sale can be had. Black, Admr.
v. Lusk, 70.
7. The fact that property sought to be sold on execution or under
a decree of court, is a homestead, is a defense against the proceeding
to sell, and it is for the party desiring to sell, to take the initiative,
if he believes there is an interest beyond the homestead right subject
to sale, which he desires to reach. Ibid. 70.
8. In what manner to be asserted. It has been held that, where the
homestead premises have been sold under judicial proceedings, in
disregard of the provisions of the Homestead Act, the purchaser
acquired an equitable lien upon the surplus above $1000, which was
exempted; but the purchaser acquires no legal title to such surplus
which he can assert in an action of ejectment. The homestead can
not be set off in this action. Hartwell et al. v. McDonald, 293.
RELEASE OF HOMESTEAD.
9. Effect of an agreement between mortgagor and mortgagee. Where
a party, who had given a mortgage to a third party, upon real estate,
to secure the payment of a portion of the purchase money, and who
had afterwards given two other mortgages without release of home.
stead, agreed with the holder of the two last mortgages, that, if he
would purchase the first mortgage and note therein secured, the sub-
sequent notes and mortgages should tack to the same, and the prem-
ises be sold to satisfy the whole, by foreclosure, and the purchase was
accordingly made, it was held, that the agreement did not constitute a
contract, and could not operate to release the mortgagor's homestead
exemption as to the two last mortgages. Black, Admr. v. Lusk, 70.
10. Mode of release. Under the statute, the homestead exemption
can only be released in the mode therein provided. Ibid. 70.
ESTOPPEL TO ASSERT HOMESTEAD RIGHT.
11. The fact that the homestead occupant assigned his contract of
purchase to his creditor, and afterwards, on completing his payments,
fraudulently took a conveyance to himself from his vendor, will not
estop the debtor or his wife from afterwards asserting their home-
stead right as against a sale of the premises under judgment and exe-
cution in favor of such creditor. The assignment in such case created
only an equitable mortgage, and the homestead right not being re-
leased, the creditor took his lien subject to that right. Hartwell et al.
v. McDonald, 293.
SUIT FOR SEPARATE MAINTENANCE OF WIFE.
1. Jurisdiction-residence of the parties. It is indispensable, to
give the circuit court jurisdiction of a bill of a married woman
against her husband for a reasonable support and maintenance while
living separate, under the act of 1867, that one of the parties shall
reside in the county in which the suit is brought. Babbitt v. Babbitt,
277.
2. Separation must be without wife's fault. The husband has the
right to select his domicil, and to change his residence, and it is the
duty of his wife to accompany him, and if she refuses to go with him,
he will not be bound to afford her a support and maintenance while
she thus remains away from him without fault on his part. Ibid. 277.
3. Common law duty of the husband. The husband is not respon
sible even for necessaries furnished his wife when residing apart
from him, if she left him without good cause and without his con-
sent; but if the separation was caused by improper treatment on his
part, or he sends her away, or they separate by consent, without any
provision for her maintenance, he will be liable for her necessary
support, and to that extent he sends credit with her. Ross v. Ross, 569.
4. Remedy at common law. Although it is clearly the duty of a
husband to provide a suitable maintenance for his wife, if within his
power, yet, according to the course of the English authorities, it is
not an obligation or duty enforceable in a court of equity by decree.
ing a separate maintenance. The remedy at common law is by an
action at law against the husband, to be brought by any person sup
plying the wife with necessaries according to her rank and condition.
Ibid. 569.
5. Remedy in equity, under the statute. The object of the statute of
1867 was, to remedy this defect in the common law, and to confer
upon courts of equity jurisdiction to enforce the common law duty
of the husband to furnish support and maintenance for his wife suit
able to the condition of the parties in life, upon her application, in
HUSBAND AND WIFE.
SUIT FOR SEPARATE MAINTENANCE OF WIFE.
all cases where she is living separate and apart from him without her
fault, or, in other words, under such circumstances as would enable
her to avail herself of the common law remedy of obtaining such
support upon the credit of her husband. Ross v. Ross, 569.
6. Therefore, if the wife is living separate and apart from her hus-
band, on account of improper treatment by him, or he sends her away,
or if he assents to or acquiesces in her leaving him, he will be liable
under the statute to a decree in equity for her separate maintenance
and support, on bill filed by her. Ibid. 569.
ILLINOIS AND MICHIGAN CANAL.
1. Power of commissioners to sell or lease right to take ice from.
Neither the act of 1871 nor that of April 7, 1872, relating to the Illi-
nois and Michigan Canal, gives any specific authority, or contains
any grant of power, from which any authority in the commissioners
can be inferred to sell or lease the right to take the ice that may form
in any portion of the canal. Card et al. v. McCaleb et al. 314.
2. Persons upon its line have a free right to take ice formed on it.
There is nothing in either of the acts of 1871 or 1872 relating to this
canal which is inconsistent with, or which, by implication, repeals
the privilege given in the act of 1869 to all persons resident upon the
line of the canal to cut and remove ice from the same, its feeders, side
cuts and basins, free of charge. Ibid. 314.
3. Meaning of the words, "resident upon the line of the" canal.
Under the act of 1889, providing that "all parties resident upon the
line of the Illinois and Michigan Canal shall be allowed to cut and
remove ice from the said canal," etc, any person living so near the
canal as to desire to avail of the privilege given, will be deemed to
live upon the line, within the meaning of the law. Ibid. 314.
WHAT ANIMALS MAY BE IMPOUNDED.
1. Construction of act of 1869. The act of 1869, making it unlaw
ful for the owners of domestic animals of the species horse, bull, etc.,
to suffer them to run at large in certain counties, and authorizing
them to be impounded when found at large, etc., does not authorize
the taking up of any cow, heifer or steer. The term, "species bull,"
in the act, embraces bulls of all kinds and descriptions, without refer-
ence to size, age or quality, but not cows, heifers or steers. Oil v.
Rowley, 469
IMPOUNDING ANIMALS. Continued.
CONSTRUCTION OF TOWNSHIP ORDINANCE.
2. As to the right to impound animals. A township ordinance
requiring the owners of horses and cattle to confine them during the
night-time, and imposing a fine of twenty-five cents per head for each
animal suffered to run at large in the night-time, can not be construed
to justify the impounding and detention of such animals when not
confined as required. Oil v. Rowley, 469.
WHETHER AN INJUNCTION WILL LIE.
1. To prevent city from interfering with the closing up of a street.
Where a strip of ground had been occupied and used as a public
street for many years, and was claimed as such by the city authori.
ties, who were in possession of the same and exercising control over
it, it was held, a decree, on bill filed by the original proprietor,
enjoining the city and the city police from interfering with the com-
plainant and preventing him from shutting up the same and appro.
priating the ground to his individual use, and thus enabling him to
take forcible possession, was clearly erroneous. City of Chicago et
al. v. Wright, 318.
2. Not to aid in the commission of an unlawful act. A court of
equity will never exercise its preventive powers to aid a party in
doing an illegal act. Where one party is in possession of real prop-
erty, and the other party claiming the same is out of possession, the
court will not enjoin the former from any action, so as to enable the
latter to take forcible possession. Ibid. 318.
3. To interfere with the exercise of police powers. A court of equity
has no power to enjoin the exercise of the police powers given by
law to the officers of a municipal corporation, so as to prevent such
officers from preserving the public peace, and from keeping a public
street open to public use. The court has no jurisdiction to interfere
with the public duties of any of the departments of the government,
or override the policy of the State. Ibid. 318.
4. Or with the exercise of the right of eminent domain. Where a
court of equity, by decree, stayed the hands of the corporate author-
ities of a city and the police power, to enable a party to take forcible
possession of a public street, and provided that after he had closed
up the same the city should be forever enjoined from opening or
attempting to open the same, for public use, it was held to be an
unwarrantable attempt to interfere with the right of eminent domain,
on the part of the city, which was a political question of expediency,
and not a judicial one. Ibid. 318.
5. Bills of peace as against public rights. Courts of equity will
not, upon a bill in the nature of a bill of peace, decree a perpetual
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