for any purpose; that the legal and valid bonded indebtedness of the county outstanding at the time the petitions for aid were presented to the board and at the time the answer was filed amounted to $196,000; that the total value of the property of the county as ascertained by the last assessment for State and county taxes was $2,869,541; that such indebtedness was above the limit prescribed by section 12 of article 9 of the constitution, and that by reason of said indebtedness the defendants could not legally make the appropriation asked for and appoint a committee to act on behalf of the county to make contracts for building the bridges. The relators demurred to the answer and the demurrer was sustained. The defendants elected to stand by the answer, and judgment was thereupon entered awarding the writ of mandamus as prayed for. The appeal in this case was prosecuted from that judgment.

The averments of the petition, not denied by the answer and therefore admitted, show that the commissioners of highways complied with the provisions of the statute which required the board of supervisors to appropriate from the county treasury a sum sufficient to meet one-half the expenses of building the bridges, and to appoint three members of the board of supervisors to represent the county in making all contracts necessary for the construction of such bridges. It has several times been held that where a petition to a board of supervisors shows a compliance with the statute on the part of the commissioners and the necessary facts are found to exist, it is the duty of the board to make the appropriation asked for, and the duty will be enforced by writ of mandamus. (Macon County v. People, 121 Ill. 616.) If, however, the acts enjoined by the statute cannot be performed in a particular case without a violation of the constitution, it is neither the right nor duty of a county board to perform such acts and their performance will not be enforced by the courts. Section 12 of article 9 of the constitution prohibits a county from becoming indebted, in any manner or

for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five percentum on the taxable property therein, to be ascertained by the last assessment for State and county taxes previous to the incurring of such indebtedness. If there was no money in the treasury of White county which could be lawfully appropriated to meet one-half of the expenses of building these bridges and the county was indebted beyond the limit fixed by the constitution, it would have been a violation of the constitution to create any further indebtedness, although the statute required it to be done. The constitutional prohibition applies to all kinds of indebtedness, including that incurred for ordinary current expenses, and any municipality indebted to the limit fixed by the constitution must carry on its business on the cash system, and not upon credit to any extent or for any purpose. (Prince v. City of Quincy, 128 Ill. 443.) It has been held that a municipality so indebted cannot enter into a contract for the purpose of performing its regular duties and exercising its chartered powers, even where monthly payments are to be made as the work progresses. City of Chicago v. McDonald, 176 Ill. 404.

The facts alleged in the answer and admitted by the demurrer are, that there was no money in the treasury out of which the appropriation could be paid; that taxes had been levied and collected to the limit fixed by the law, and the taxes so collected had been exhausted in the payment of ordinary expenses of the county, and that the county was indebted beyond the limit fixed by the constitution. There being no money in the treasury out of which an appropriation could be paid, the contract for the construction of the bridges would have created an indebtedness in violation of the provision of the constitution. If the legislature intended, as urged by counsel, that bridges should be built and that there should not be a return to the primitive method of fording creeks and rivers, such intention cannot be enforced in a case where its enforcement would accomplish a violation of

the constitution. The court erred in sustaining the demurrer to the answer and entering judgment awarding the writ.

To justify a court in awarding a writ of mandamus involving an expenditure of money, it must appear that the necessary funds are on hand or otherwise under the control of the defendant. Hall v. People, 57 Ill. 307.

The judgment of the circuit court is reversed and the cause remanded. Reversed and remanded.

LEONARD J. Clark

ข.

JEFFERSON JACKSON et al.

Opinion filed June 14, 1906.

1. ABSTRACTS OF TITLE-when affidavit as to sole heirship is insufficient. An affidavit in which the affiant states that certain grantors in a deed in the chain of title shown by the abstract were the sole and only heirs of the former owner of the land states a mere conclusion of the affiant and is insufficient, there being no evidentiary facts stated upon which the conclusion is based.

2. SAME when affidavit does not show title by limitation. An affidavit that certain grantors in deeds shown in a chain of title by the abstract were successive, open, continuous and undisputed possessors of the property is insufficient to show title by limitation, in that it fails to show that such possession was hostile or adverse or that it was exclusive or under claim of ownership.

3. SAME-sufficiency of abstract of title relates to time allowed by the contract. The sufficiency of an abstract of title, upon a bill for specific performance, is to be determined as of the date fixed by the contract when the party was required to furnish "satisfactory evidence" of title, and not as of the date of the hearing upon the bill after evidence has been received to clear up apparent discrepancies in such abstract.

4. CONFLICT OF LAWS-foreign courts are presumed to have construed similar statute the same as courts of this State. In the absence of evidence to the contrary it will be presumed that a statute of a foreign State substantially the same as a statute of this State

has received practically the same construction by the courts of the foreign State as has been given by the courts of this State to the local statute.

5. SPECIFIC PERFORMANCE—when specific performance should be refused. Specific performance of a contract for the exchange of properties is properly denied where the complainant has failed to present a proper abstract of title or to make satisfactory arrangements for paying the interest on an encumbrance in accordance with the terms of the contract making the time specified for such purposes of the essence of the contract.

APPEAL from the Circuit Court of Cook county; the Hon. THOMAS G. WINDES, Judge, presiding.

ROSENTHAL, KURZ & HIRSCHL, for appellant.

HENRY S. SHEDD, and EDWARD A. DICKER, for appellee Jefferson Jackson.

Mr. CHIEF JUSTICE SCOTT delivered the opinion of the

court:

On March 5, 1903, the appellant, Leonard J. Clark, and the appellee Jefferson Jackson, entered into a contract in writing and under seal, whereby Jackson agreed to convey to Clark a certain apartment building in Chicago, Illinois, and Clark agreed to give Jackson his promissory notes for $70,000, payable in the manner stated in the contract and secured by a mortgage on the apartment building, and to transfer or cause to be transferred to Jackson 4820 shares of the capital stock of the Attica Lithia Springs Company, a corporation of Attica, Indiana, said corporation to be, at the time of the transfer, the owner in fee simple of the property known as the Attica Lithia Springs Hotel, located at Attica, Indiana, including about seven acres of ground, with the improvements thereon, subject only to an encumbrance of $10,000 which Jackson was to assume or guarantee, and Clark further agreed to convey to Jackson all furniture, fixtures and other personal property in and pertaining to said.

hotel. The contract expressly provided that all deeds were to be passed and the negotiation to be closed within ten days from the date of the contract, unless more time should be required by reason of defects of title, in which case thirty days from the date of the contract should be allowed for closing the transaction; that time was of the essence, and that "it is hereby further mutually agreed and understood by and between the parties hereto, and as part of the consideration of this agreement, that each party hereto is to provide for the use of the other, within ten days from the date hereof, proper abstracts of title to the property hereby agreed by them to be conveyed or caused to be conveyed, showing good and sufficient title to the same in the grantor herein mentioned."

The contract also provides that Clark shall furnish Jackson satisfactory evidence of the title to the Attica Lithia Springs Hotel property, and that all the interest on the note of the Attica Lithia Springs Company for $10,000, which is the encumbrance above referred to, shall be paid in full by Clark to the date of the contract, thus leaving Jackson to assume the payment of the principal, only.

It seems that Clark had been conducting the hotel in question, and that upon the execution of the contract he surrendered possession thereof to Jackson and took possession of the Chicago property.

Clark furnished Jackson an abstract of the title to the Attica Lithia Springs Hotel realty, but the same was rejected as failing to show such title as the contract required. After some attempts on the part of Clark to remedy the defect, which were deemed abortive by Jackson's attorney, Clark, on April 3, 1903, undertook to make a tender of performance, and a few days afterwards, on April 8, filed a bill for specific performance against Jackson and his wife in the circuit court of Cook county. After Mrs. Jackson had answered the bill denying that the contract was binding upon her for the reason that she did not sign it, the complainant