Opinion of the Court.

1869, a proposition was submitted to the legal voters of Hamilton county, whether the sum of $74,000 be donated to aid in the construction of the Evansville and Southern Illinois railroad. That proposition was adopted, and the county court found it was authorized to make a donation to such railroad company in bonds to run twenty years, and to bear interest at the rate of seven per cent per annum. The $37,000 of bonds. in controversy are one-half of the donation voted, the issuing of bonds for the other half of the donation having been, for some reason, waived. Although these bonds were not issued and delivered until since the adoption of the present constitution, the donation was authorized under existing laws, by a vote of the people of the municipality issuing them, prior to its adoption, and no reason is perceived why these particular bonds are not binding obligations upon the county.

It is said the donation of $74,000 voted, exceeds five per cent of the taxable property of the county for that year, and is for that reason void, as being inhibited by that clause of the constitution which fixes a limit beyond which counties may not contract indebtedness. But it is the value of the taxable property to be ascertained by the "last assessment for State and county taxes previous to the incurring of such indebtedness," upon which the rate per cent is to be computed which is to limit the power of the county to contract indebtedness, and not the "equalized valuation" as fixed by the State Board of Equalization. It is not said such indebtedness shall not exceed five per cent of the taxable property as ascertained by the State Board of Equalization, but as ascertained by the "last assessment for State and county taxes,"—that is, the assessment made by the local assessors. It is conceded that the valuation of the taxable property for that year, for county purposes, was $1,503,087, as fixed by the local assessor. Five per cent of that amount, of course, would exceed the sum of $74,000, the amount voted to be donated.

Mr. Justice MAGRUDER, dissenting.

Other points made against the validity of these particular bonds are thought to require no discussion. They were voted for by the people, and issued in conformity with enabling acts, and no valid reason appears why the people that voted for the issuing of these bonds should not be required to pay the taxes assessed to pay the interest upon them.

The judgment of the county court will be reversed, and the cause remanded to that court with directions to enter a judgment against the lands of the objector for that proportion of the taxes levied to pay the interest upon the $37,000 of bonds, which may be readily ascertained by computation, and refuse judgment for the residue of such taxes.

Judgment reversed.

MAGRUDER, J.: I do not concur in that portion of the foregoing opinion, which holds that the five per cent limit of indebtedness named in Sec. 12, Art. 9 of the constitution, is five per cent of the taxable value as ascertained by the assessment for State and county taxes as fixed by the local assessor. think the equalized valuation as fixed by the State Board of Equalization is the valuation contemplated by the constitution.

I

43-134 ILL.

INDEX.

ACCESSORY.

PUNISHED AS PRINCIPAL. See CRIMINAL LAW, 3.

1. Oath of auditor-waiver. The requirement that an auditor,
in an action of account, shall be sworn before entering upon his
duties, is not jurisdictional, but is one that may be waived by the
parties; and the appearance of the parties before the auditor, and
the examination of witnesses, without objection that he is not sworn,
will constitute such waiver. Pardridge et al. v. Ryan, 247.

2. The fact that one appointed an auditor in an action of account
is also a master in chancery of the same court in which the action
at law is pending, will not relieve him of the necessity of being
sworn, if there be no waiver of the oath, before entering upon the
discharge of his duties. Ibid. 247.

3. Improper evidence before auditor—effect upon the auditor's
finding. The admission of incompetent or improper evidence be-
fore an auditor, in an action of account, will not require the court
to set aside the report, when there appears sufficient competent
evidence to sustain the auditor's finding. Ibid. 247.

4. Judgment quod computet-what is determined thereby. In an
action of account, an interlocutory judgment quod computet is al-
ways entered before the final judgment upon the findings of the
auditors. This judgment merely determines the defendant's lia-
bility to account, but determines nothing as to what may be due

after account taken. If the liability to account is denied, the issue
may be tried before a jury. Pardridge et al. v. Ryan, 247.

5. In this case, which was in assumpsit, the court, on its own
motion, ordered that the form of action be changed to account, and
the record showed that the defendant made no objection to the
proceeding, and stated that he was willing to account, and asked
that plaintiff should also account, whereupon the court appointed
an auditor, and ordered that each party account with the other:
Held, that the order directing an accounting might be regarded as
a judgment quod computet. Ibid. 247.

FOR A NUISANCE.

6. Whether an action will lie. See NUISANCE, 2, 3, 4.
CONTRACT OF INDEMNITY.

7. Action thereon. See CONTRACTS, 7.

ADMINISTRATION OF ESTATES.

PRESENTATION AND ALLOWANCE OF CLAIMS.

1. Jurisdiction—after notice for presentation. Where a claim is
filed in the probate court against an estate after the publication of
notice for the presentation of claims, but before the day set for that
purpose, and long after the day so set for the adjustment of claims
it is allowed, the record failing to show the presence of the admin-
istrator or objection on his part, it will, in the absence of allegation
and proof to the contrary, be presumed that the cause was continued
from term to term. In such case, the court will have jurisdiction
both of the subject matter and of the persons, to render the judg-
ment. Ward v. Durham et al. 195.

2. An administrator gives the court jurisdiction of his person by
notice for the presentation of claims against the estate, and will be
bound to take notice of the orders of the court continuing claims
filed on or before the day named in his adjustment notice. Ibid.
195.

JUDGMENT OF ALLOWANCE.

3. How far conclusive-and upon whom. A judgment allowing a
claim against an estate of a deceased person is not only conclusive
on the administrator or executor, but also against the heir-at-law
or devisee in respect to the personal estate, in the absence of fraud
or collusion in its rendition; but it is not conclusive against the
lands left by the decedent. Ibid. 195.

4. So, on an application by an administrator for an order to sell
land to pay debts, it was held that under the statute giving the
heirs a right to contest a claim against the estate, the adjudication
of the court in allowing a claim is only prima facie binding upon