an execution for the whole sum, while the means and estate of the other remain untouched and undisturbed.'

"In Bank v. St. John, 5 Hill, 497, the warrant was signed by three persons, and the power was 'to appear for us and each of us, in an action of debt, to be brought against us and each of us,' and to confess judgment 'against us and each of us'; and the court (Bronson, J., delivering the opinion) says: 'I am strongly inclined to the opinion that the warrant will only authorize a joint judgment against all the obligors.'

"In Kahn v. Lesser, supra, the promissory note and warrant of attorney were executed by Lesser and another, and were both joint; the power being 'to enter our appearance before any court of record, in term time or in vacation, in any of the states or territories of the United States, at any time after the said note becomes due, to waive the service of process, and confess judgment in favor of the said Simon Kahn or his assigns.' It will be observed that the warrant was substantially the same as in the present case. The supreme court of Wisconsin held that a judgment against Lesser alone was not authorized by the warrant, and was void, citing numer ́ous cases, and say: 'It is well settled that the authority to confess a judgment under a warrant or power of attorney must be strictly construed. An instrument delegating such power is ordinarily subjected to a strict interpretation, and the authority will not be extended beyond that given in terms, or which is necessary to carry into effect what is expressly given,'-citing numerous authorities.

"In Frye v. Jones, 78 Ill. 627, the court say: "The authority to confess a judgment must be clear and explicit, and must be strictly pursued,'-citing Bank v. St. John, 5 Hill, 497, and Chase v. Dana, 44 Ill. 262.

"In Whitney v. Bohlen, 157 Ill. 571, 42 N. E. 162, the power granted was 'to appear for me and confess judgment against me as of any term,' etc. Judgment was entered by confession in vacation, and the court held the judgment unwarranted, saying, among other things: 'It is conceded the power to confess a judgment must be clearly given and strictly pursued, or the judgment will be void,'-citing prior Illinois decisions. See, also, Blake v. Bank, 178 Ill. 182, 52 N. E. 957, in which this language was used: 'If a judgment so entered was not confessed by authority of the defendant it will be void for want of power to confess it, and a defendant who is injured by it may have it set aside upon motion.'

"Other cases might be cited to the same effect, but it is sufficient to say that the great preponderance of authority, English and American, is opposed to the proposition that a judgment may be confessed against one of two or more persons by virtue of a joint warrant of attorney authorizing, in terms, a

rant.

"January 16, 1900, when the action was commenced and the unwarranted judgment entered, appellant was not entitled to recover on the note, irrespective of a warrant to confess judgment, because the note, by its terms, did not become due until about seven months thereafter. There is no principle, legal or equitable, by which one can be required to pay money before it becomes due in accordance with his contract. A judicial determination so requiring would be in violation of the contract."

For the reasons given, the appellate court properly affirmed the judgment. After a careful examination of the case we are of the opinion that the case was correctly decided below, and, coinciding with the views expressed by the appellate court, we adopt its opinion as our own.

The judgment of the appellate court is affirmed. Judgment affirmed.

(191 Ill. 493)

MCGAHAN v. PEOPLE ex rel. DENEEN, State's Atty.

(Supreme Court of Illinois. Oct. 24, 1901.) QUO WARRANTO-LEGALITY OF VILLAGE INCORPORATION-PRIVATE PROSECUTION-BURDEN OF PROOF.

1. That the people of the community affected employed counsel to assist in the prosecution of an information in the nature of a quo warranto to test the legality of the incorporation of a village does not make it a private prosecution, the interests involved being public, and there being no proof that the proceeding was not prosecuted in good faith by the attorney general on behalf of the people of the state.

2. On quo warranto to test the legality of the incorporation of a village, the burden is on respondents to prove that the territory organized as a village contained the required number of inhabitants.

Appeal from circuit court, Cook county; Jno. C. Garver, Judge.

Information in the nature of a quo warranto by the people, on the relation of Charles S. Deneen, state's attorney, against Robert McGahan and others. From a judgment of ouster, respondent McGahan appeals. Affirmed.

Wheelock & Shattuck, for appellant. Gregory, Poppenhusen & McNab and Charles S. Deneen, State's Atty. (Conrad H. Poppenhusen, of counsel), for appellee.

CARTER, J. This was an information in the nature of a quo warranto, filed December 15, 1898, by the state's attorney of Cook county, in the circuit court, against Robert McGahan, Moses Doyle, George Airey, John Burke, Cyrus Michelson, John Aggen, and Martin Simon, charging that they held and do now hold and execute, without authority of law, the offices and corporate name of president and board of trustees of the pretended village of Mt. Greenwood, and that they unlawfully assume, as such president

claim to any part of lot 1 in block 6, and hence to the northwesterly half of the 67 feet as an abutting owner. It still insists,

however, that it owns the whole of that strip by prescription; and also that, in any event, it is the owner of the southeasterly half of it as abutting owner of lot 13. The cross petitioner joins the city of Chicago in its denial of the original petitioner's title by limitation, but claims, with the latter, that there is no easement over any part of the 67 feet in favor of the public as a street, and it claims the northwesterly half thereof in fee as abutting owner of lot 1.

All parties agree that the plat made and recorded by John F. Wight is not a good statutory dedication of the streets to the public, but it is alleged in the original petition that the 67 feet in controversy "was intended by said John F. Wight to be dedicated as a street for the use of the public, and was offered by the said John F. Wight to the city of Chicago as a street." This allegation was admitted by the city of Chicago, and the master to whom the case was referred to take the proofs found and reported that "the aforesaid strip of land sixtyseven feet in width between the aforesaid lot 1 in said block 6, and lot 13 in said block 3, in said Wight's addition, was intended by John F. Wight to be dedicated as a street for the use of the public, and was offered by the said John F. Wight to the city of Chicago as a street." No objection or exception was filed by any of the parties to that report. It is, however, averred in the petition that neither the city of Chicago nor the public had accepted said offer, which allegation is denied by the city of Chicago, and, as above stated, the circuit court found that the offer had been accepted by the city.

It is conceded that lots in said Wight's addition to Chicago have been sold and conveyed with reference to the streets as shown by said plat, and it is clear from the allegations of the petition, cross petition, and proofs that lot 1 in block 6, and lot 13 in block 3, were conveyed as fronting on the strip 67 feet wide as a street. We regard it as perfectly clear from the plat that the proprietor, John F. Wight, intended the strip to be an extension of Fifth street (now called "Sangamon Street"), and this fact, as we conceive, cannot be made clearer by argument. All the parties to this suit, as shown by the uncontradicted testimony of all the witnesses, knew and understood that it was a part of that street. From the making and recording of the plat in November, 1835, to. the filing of the petition, no assessment for general taxes and no special assessment has ever been levied upon the said strip. It is admitted that at the time of filing its petition W. N. Eisendrath & Co. occupied the same with a tannery establishment, and it and those from whom it purchased the tannery had been in such occupancy since about the year 1874. It clearly appears, however,

and without denial, that during all that period such occupancy was by and with the consent of the city of Chicago, much of the time under written leases from it, W. N. Eisendrath & Co. even holding such a lease at the time of filing its petition, and continuing to pay rent therefor nearly three months after the petition was filed.

There appears in the record a lease from the city of Chicago to William N. Eisendrath, dated May 1, 1892, conveying all the right, title, and interest of the city of Chicago in and to so much of the land covered by Sangamon street as lies between the east line of Dix street and the west dock line of the north branch of the Chicago river, together with the wharfing privilege at the end of said Sangamon street, excepting and reserving (to be always kept free from obstruction for use by the public) a space 20 feet in width in and adjoining the center of said Sangamon street through said premises to said river, and a space 5 feet in width entirely across the end of said Sangamon street; expires May 1, 1893; consideration, $750; option to renew the lease. Also a similar lease, made in 1894, to expire April 1, 1896, in consideration of $750 per annum; and another dated August 15, 1896, to expire March 31, 1899, in consideration of $500 per annum. These leases, except the last, also contain the stipulation: "And it is further agreed by the parties hereto that this lease shall be terminated at any time said city may require the use of said leased premises for the purpose of any public improvement."

*

William N. Eisendrath, the president of the company, himself testified on his crossexamination: "From 1876 on we paid the rent to the city for the use of Sangamon street from Dix to the river,-that is, my father paid it, and we repaid the same to him; and between 1886 and 1891 we paid it ourselves directly. I don't think we took a lease from the city until five or six years ago, but we paid rent right along, directly and through my father, from 1876 to 1891,$300 during 1881, up to 1888; and 1889 down to 1891 at the rate of $300 a year. We paid rent in advance up to the 30th day of April, 1898, for this so-called 'Sangamon Street,' from Dix street to the river." (The petition was filed January 3, 1898.) The evidence clearly shows that this witness frequently admitted that he had no claim to the street, but was only a tenant, and that the city could compel him to remove his buildings at any time; that he procured Paepcke, the owner of lot 1, who had demanded of the city that the street be cleared of the obstruction in 1885, to go with him to the city comptroller's office, and withdraw his demand, and that he then asked the comptroller to permit him to remain in the street; and he did not claim, in any part of his testimony upon the hearing, that his company at any time occupied the street

adversely to the city. Notwithstanding these facts, it is now insisted on behalf of petitioner, W. N. Eisendrath & Co., that its possession of the street has been hostile to, or adverse to, the city of Chicago, so as to ripen into an absolute title in fee simple. This position rests upon the alleged ground that the city had no power to lease the street to it or consent to its occupancy of the same.

It may

Conceding that the city abused its power in attempting to give its consent or to authorize the appellant to obstruct the street, it is impossible to see upon what principle the appellant can be heard to say that its possession was therefore hostile to the city. It certainly cannot be seriously contended that a party may procure the unauthorized consent of a municipality to occupy one of its public streets, alleys, or parks, and afterwards set up the statute of limitations so as to defeat the public right. be the city by these leases abused its power and authority over the street, but it clearly recognized thereby its existence and the public right thereto. The city reserved, to be always kept free from obstruction for the use of the public, a space 20 feet in width in and adjoining the center of said Sangamon street, through said premises to the river, and a space five feet in width entirely across the end of Sangamon street. The complainant, Eisendrath & Co., by accepting these leases, admitted the right of the city to make them, and the right of the public to have the street kept open for its use. There is to our minds wanting every element of adverse possession in the occupancy of this street, which is always essential to the maturity of a title by prescription or limitation. Complainant below has wholly failed to show title to the property by prescription.

We think it equally clear that the offer of Wight to dedicate the street has been accepted by the city. It has always been opened from Dix street to the river, except as obstructed by the complainant in the original bill. It is shown by the leases to complainant, as we have seen, that the city claimed it as a public street, and reserved the right to terminate the leases at any time. The evidence shows that the city authorities from time to time ordered the obstruction removed, and the complainant, by importunities, procured its consent to the occupancy of the same. The fact that no taxes or special assessments were levied upon it after it was platted is some evidence of acceptance. Lee v. Town of Mound Station, 118 Ill. 304, 8 N. E. 759; Earll v. City of Chicago, 136 III. 277, 26 N. E. 370. The rule is that formal acts of acceptance are not necessary, but whatever indicates an intention to do so is sufficient.

We are at a loss to perceive how these parties, the complainants in either the original or cross bills, can be heard to say the strip of ground between their lots has not been accepted by the city. First, we find the original complainant leasing it, from time to time, as a street, agreeing to protect the public right to use it as such, admitting, from time to time, that it is a street, and that complainant's only right there was as a tenant. Then the cross complainant complains to the city authorities that the street is being obstructed, and finally goes with W. N. Eisendrath to the city authorities, and at his request withdraws the objections. The acceptance of the offer to dedicate is not of controlling importance in cases of this kind. Here was a plat of a town or an addition to a city. Lots, blocks, streets, and alleys were plainly designated upon it and placed upon record. Thereby the proprietor offered to dedicate to the public every street and alley so indicated. Lots were sold in the addition with reference thereto. The offer to dedicate the street is a continuing offer as to the purchasers of lots, and cannot be revoked by the proprietor of the plat. "Where the owner of land has the same platted, showing a street, and sells a part with reference to such street, which is mentioned in the description in the deed, although the street is not opened or the map thereof acknowledged or recorded, this will be an immediate dedication of the street as to such purchaser, and the grantor and all persons claiming under him will be estopped from denying the existence of the street." Zearing v. Raber, 74 Ill. 409. “Although a town plat or a plat of an addition has not been properly acknowledged, yet if the owner of the land so platted makes sales of lots with reference to such plat, abutting upon what is marked as a street, he and those claiming through him will be estopped from questioning the existence of the streets as shown on the plat. Such acts will create a common-law dedication. Such sale of lots by the plat confers upon the purchasers the right to have the street therein described, and upon which their lots abut, remain open forever; and such right is not a mere right that the purchasers may use the street, but is a right vested in the purchaser, that all persons may use it." Earll v. City of Chicago, supra; Clark v. McCormick, 174 Ill. 164, 51 N. E. 215; Village of North Chillicothe v. Burr, 185 Ill. 322, 57 N. E. 32. Under these authorities, the parties here own Sangamon street between Dix street and the river, each to the center, as abutting owners of lots 13 and 1, subject to the easement in the public to have it kept open as a street.

The decree of the circuit court is right, and it will be affirmed. Decree affirmed.