Volume 1 — Illinois Circuit Court Reports

<p>Bill for injunction, Circuit Court Cook County, Chancery Gen. No. 258,958. Heard before Hon. Murray F. Tuley, upon bill and answer, with affidavits in support of each.</p>

<p>Bill for injunction. Preliminary injunction granted. Heard before Judge Jesse Holdom.</p>

<p>1. Injunction—Dismissal of Bm—Amendment. If the court is of opinion that the hill, where the sole relief sought is injunction, does not make out a case entitling the party to an injunction, and that it is incapable of amendment so as to entitle the party to the relief sought, the court will, upon motion of either party, dismiss the bill for want of equity.</p> <p>2. Supplemental Bill—Effect of. A motion for leave to file a supplemental bill, and for a temporary injunction, is a waiver of a prior motion for a temporary injunction, and takes the place thereof.</p> <p>3. Practice—Renewal op Motion por Injunction. Where a motion for an injunction, or to dissolve one, is passed iipon by one branch of the court, it is an improper practice, to renew such motion based upon the same identical pleadings and evidence, before another branch of the court.</p> <p>4. Supplemental Bill Apter Denial op Original Application por Injunction. If after the decision of the original motion for an injunction new facts arise concerning the matter in dispute, the party has a right to renew his motion for an injunction and base the same upon the pre-existing facts and pleadings in the cause and upon the new matters which are set forth in the supplemental bill.</p> <p>5. Motive op Complainant in Filing Bill por Injunction. Upon a motion for a temporary injunction by a stockholder of a corporation to enjoin it from purchasing the property of another corporation—the issuance of which is largely a matter of discretion of the chancellor—the court would cease to be a court of equity and conscience if it did not take into consideration the motive of the complainant, or the real party in interest in instituting the suit (see note at end of case).</p> <p>6. Injunction Not Granted por Improper Purposes. The writ of injunction is the strong arm of the court, but it is wielded and controlled by the conscience and discretion of the chancellor, and its use for improper or unlawful purposes will not be permitted.</p> <p>7. Quasi-estoppel in Equity—Laches. Where complainant in December, 1899, filed his bill for a temporary injunction to restrain the Pullman Company from purchasing the Wagner Company and the motion was denied, and thereafter the Wagner Company was dissolved, and there were large transactions in the sales of the stock of the company, and the complainant stood by and witnessed the stock of the Pullman Company issued for the purchase of the assets of the Wagner Company, traded in publicly for more than a year without further making any move in his suit, he has slept upon his rights, by failing to prosecute his suit, until there has arisen a quasi-estoppel against obtaining relief by injunction, if he was ever entitled to any.</p> <p>8. Lis Pendens to Purchasers oe Corporate Stock. Where the complainant has not prosecuted his suit in good faith with all reasonable diligence and without unnecessary delay, purchasers of the stock of the Pullman Company issued while this suit for a temporary injunction was pending cannot be held to have taken the stock with constructive notice of the pendency of the suit and subject to future proceedings therein.</p> <p>9. Parties—Lack of Necessary Parties. The holders of the twenty million dollars of stock of the Pullman Company issued during the pendency of this suit are necessary parties to the supplemental bill proposed to be filed and for a lack of such parties the motion for a temporary injunction must be denied.</p> <p>10. Ultra Vires-—Pullman Company—Power to Purchase Assets of Wagner Company Engaged in Same Business. Under its charter the Pullman Company had power to purchase railway cars without limitation as to number or as to the party from whom the purchases may be made, and also all the powers, privileges, rights, etc., incident to such corporations and necessary or useful for the purposes of the corporation. Held that the Pullman Company immediately upon its organization could have made a purchase of the assets of the Wagner Company engaged- in like business, “as incident to, necessary and useful” to it in the commencement of its business, and having such power at the start of its business it could make such purchase at any time thereafter that it was considered necessary or useful in carrying on the business of the corporation; and whether such purchase would be necessary or useful was for the board of directors to determine; and while such purchase might be an abuse of the charter power it was noi; an ultra vires act.</p> <p>11. Directors, Liability of, for Mistake as to Valuation. An honest mistake of directors as to values gives neither the state nor any stockholder a ground of action.</p> <p>12. Power to Purchase Cars, Rights of Corporation Under. The power to purchase cars and lease the same to railroad companies confers power to purchase cars which are already leased to railroad companies.</p> <p>13. Ultra Vires Acts—Stockholder of One Corporation Cannot Complain of Ultra Vires Acts of Another Corporation. A stockholder in one corporation has no footing in a court of equity to enforce purely public, or redress purely private rights as to or in connection with alleged ultra vires acts of another' corporation. That is left to the people of the state under which the corporation had its charter, or to the stockholders or creditors having an interest.</p> <p>14. Ultra Vires Acts—Right of Stockholder to Question. A stockholder has a standing to question the ultra vires acts of his own corporation by which he may be injured because of the trust relation existing between him and the corporation.</p> <p>15. Power of Corporations and Joint Stock Associations Engaged in a Business Affected With a Public Interest, to Diésolve. A corporation chartered to carry on a business affected with a public interest is under an obligation or duty to carry on such business during the life of its charter, and not to discontinue its business and.dissolve, except with the consent of the state, but a joint stock association (such as the Wagner Joint Stock Association) organized under a law expressly providing that such associations may be dissolved in pursuance of its articles of association, whose articles provide for a dissolution upon sixty days’ notice given, can dissolve itself because there is a limit to the implied obligation to continue in business, granted by the state, to the effect that it should serve the state until it choose to dissolve itself in pursuance of its articles of association; nor under such a provision is there any implied obligation not to dissolve ‘for the purpose of selling its property, or for the purpose of enabling its shareholders to sell their interest in such property, for cash or for the stock of some other corporation.</p> <p>16. Railroads—Duty to Furnish Facilities. A railroad company is under an obligation to furnish transportation to the public and to furnish all known appliances. It may construct its own cars and operate the same if it desires, or it may lease cars ánd contract for service to be rendered in connection with the running thereof, with any person or corporation it sees fit.</p> <p>17. Purchase of Property of Competitor by Pullman Company Not Violation of Anti-trust Laws. While the purchase of the Wagner Company by the Pullman Company may have removed the latter’s chief competitor, yet the right to contract in that respect as to service by sleeping and dining cars with railroad companies is open to all. The purchase or combination of the Pullman Company with the stock and property of the Wagner Company did not necessarily give the Pullman Company the power to raise prices or prevent competition in the business of contracting with railway companies for the use of sleeping cars and furnishing accommodations connected therewith, and such purchase is not a violation of the anti-trust acts of Illinois, or of the United States act against restraint of trade and monopolies.</p> <p>18. Monopolies and Combinations, W'hen Illegal. It is not every combination that is prohibited by the anti-trust laws, or that is opposed to public policy. It is not sufficient to create an illegal monopoly, that the transaction challenged may tend to restrain competition or tend to create a monopoly. The transaction complained of must necessarily put the purchaser in the position where he can, if he desires, create a monopoly.</p> <p>19. Public Policy Defined. By public policy is intended that principle of law which holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against the public good, which may be termed a policy of the law or public policy in the administration of the law. .</p> <p>20. Courts Cannot Declare that Against Public Policy Which the State Permits to be Done. The courts cannot permit that to be declared against public policy which the state permits to be done. To permit the courts to declare that to be illegal and void which is authorized by the legislature of the state, would be to substitute the courts for the legislature.</p> <p>21. Public Policy of Illinois as to Monopolies. Prom a review of the anti-trust statutes of Illinois and of the acts passed by the legislature in 1897 it would seem that the public policy of the state of opposition to combinations and monopolies in Illinois has changed to a policy favoring combinations and monopolies.</p> <p>22. Combinations and Monopolies—Construction of Laws Regulating. The laws of trade appear to be almost as irresistible as the laws of nature. These combinations; are the evolution of trade and appear to be demanded by the present economic conditions. Such laws as the legislature deem it necessary to enact in that regard should be strictly construed and enforced in favor of the public; but the constitutional right to own property and contract with reference thereto, should not be infringed or abridged except in a case where it is made clearly to appear that unless there is such interference, the public will be injuriously affected. Held this is not such a case.</p> <p>23. Complainant, the owner of but little more than the one-hundreth part of one per cent, of the capital stock of the Pullman Company, an Illinois corporation, filed his bill on Dec. 28, 1899, for an injunction against the defendant, to enjoin it fRom carrying out an intended purchase o£ all the property of the Wagner Palace Car Company, a joint stock corporation organized under the laws of New York, and from delivering 200,000 shares ($100 each) of the capital stock of the Pullman Company as the purchase price proposed to be paid for said property. December 30, 1899, was fixed as the day for the completion of the sale. Complainant purchased his stock (100 shares) about one month before and after the call for the meeting of stockholders of the Pullman Company, on December 5, 1899, called to ratify the purchase. The motion for the injunction was heard on December 30, 1899,' and denied. Thereafter the purchase was consummated, the Wagner Company dissolved, and stock of the Pullman Company issued in payment for the assets of the former. In May, 1901, a motion was made by complainant for leave to file a supplemental bill and for a temporary injunction based upon the original bill, affidavits and answer. Held, that complainant is not entitled to an injunction or to any equitable relief and complainant’s bill is dismissed for want of equity.</p>

<p>1. City Express Companies are Common Carriers. City express companies carrying goods from one portion of the same city to another for all who choose to employ them are common carriers and can make no arbitrary, unjust or injurious discriminations between individuals in their dealings with the public.</p> <p>2. City Express Companies Must Carry eor All Alike Under Ordinances op the City op Chicago. Under the ordinances of the city of Chicago, city express companies cannot refuse to carry or convey merchandise, goods, etc., tendered them to be carried within the city.</p> <p>3. That a Strike May Result is no Excuse fob Refusal of Common Carrier to Receive Goods. It is not a sufficient excuse for a common carrier, a city express company, to avoid its duty to receive and transport goods, that if it accepts the goods and carries them, all its teamsters will go on a strike, and tie up the business of the city express company or common carrier.</p> <p>4. No Excuse for Refusal of One Carrier to Convey Goods that Other Carriers are Available. That many other like carriers are available is no reason for a carrier refusing to convey goods, as the law is equal in its operation on all alike, and such other carriers if applied to might upon the same grounds refuse to serve.</p> <p>5. Mandatory Injunction Against Common Carriers. When complainants are frequent shippers and a continuous series of shipments is necessary in conducting their business, a mandatory injunction is the proper remedy to compel common carriers to perform their duties and carry goods tendered for transportation, since actions at law would result in a multiplicity of suits.</p> <p>■6. Mandatory Injunction to Compel City Express Companies to Carry Goods—Possibility of Strike No Excuse. Complainants are wholesale merchants and large retail dealers carrying on business in Chicago. A strike was instituted by the Teamsters’ Union against the firm of Montgomery Ward & Co., and all merchants who delivered goods or orders to Montgomery Ward & Co. were boycotted and their teamsters ordered on strike by the. union. Complainants delivered goods to Montgomery Ward & Co., and their teamsters went on a strike. The city express companies in Chicago refused to accept goods for transportation from the complainant firms on the ground that if they did so all their teamsters would strike and tie up all the business of each city express company so accepting and carrying complainants’ goods. Held, that the possibility of a strike was no excuse and that a mandatory injunction should issue compelling the defendant city express companies to accept and carry the goods tendered to them by complainants.</p>

<p>1. Partnership—Compensation op Partners. Each! partner is under obligation to devote his skill and effort to the promotion of the business of the firm. In the absence of special agreement, one partner is not entitled to any special compensation for services'in prosecuting the partnership business, even though such partner has greater industry or ability than his co-partners.</p> <p>2. Same—Surviving! Partners. The same rule applies as to the services of a surviving partner as between him and the representatives of a deceased partner.</p> <p>3. Same—Extraordinary Services. Where a surviving partner renders unusual or extraordinary services in preserving the partnership estate, or where the surviving partner devotes his whole time to the business and carries it on successfully, he is entitled to charge a reasonable sum for his services.</p>

Bill for injunction to restrain an employe from breaking' Ms contract not to engage in business. Bill filed January 19, 1889. Heard before Judge Murray F. Tuley. Case No, 70,972.

<p>Business Plans and Systems — Injunction Against Use of. The complainants commenced issuing in serial parts a portfolio of sights and scenes of the world. These parts were issued and distributed under contract by certain newspapers in exchange for coupons clipped from such newspapers. This plan was originated by the complainants and proved to be a great success. The defendants thereafter issued a similar book and adopted substantially the same plan in doing its business. The parts were not copyrighted and the original pictures were purchased in the open market. Held, there being no copyright, trade-mark or trade name involved, that a court of equity would not grant relief, as there can be no proprietary rights merely in a plan of doing business.</p>

<p>1. Mandamus Not Granted to Compel Public Officers to Enforce the Laws. Certain residents of the village of Harlem presented a petition for a writ of mandamus, alleging that gambling, betting and gaming were going on within the limits of the village of Harlem, and particularly at the race track in that village, in violation of the laws of the state of Illinois and of the village ordinance of Harlem, and that the chief of police, the president of the village and the village board of trustees, though often notified Of the aforesaid violations of the laws and ordinances, refused to enforce said laws and ordinances, and suppress gambling, betting and gaming within the village limits; a peremptory writ of mandamus was prayed for against the president of the village of Harlem, the trustees and the chief of police “commanding them and each of them that they perform their respective and co-operative duties of their respective public village offices of the said village of Harlem and take such action and institute such proceedings as are necessary to enforce the police laws and ordinances of the said village of Harlem, and the laws of the state of Illinois against gambling, betting and gaming within the limits of the said village of Harlem.” Held, that mandamus was not the proper remedy, and that a writ of mandamus could not be issued for , such a purpose, because for the court to undertake to exercise the power of controlling matters of this nature would be to ignore the other powers of the government, the executive and the legislative, and to usurp and put into the court’s own hand all the powers given to all the officers.of government. It would be practically to substitute the court for all other officers and would result in judicial tyranny.</p> <p>2. Mandamus Will Not Issue to Compel Public Officials to do Their Duty Generally. Mandamus is not issued to command a public official generally to do his duty and to comply with the law of the land. His duty is fixed by the statute; the statute commands and it is his duty to obey the commands of the statute. Mandamus can only issue to command the performance or the doing of a specific act, not that the officer shall perform all his duties, or perform all the acts required by his office, but that he shall perform some specified act.</p> <p>3. Power and Duty cf Judge. It was never intended that a judge in a court of law should be the governing power. His duty is to construe the law, and administer it.</p>

<p>1. Injunction to Restrain Crime. A court of equity has no jurisdiction to restrain the commission of a crime, nor to enforce moral obligations, nor can it rightfully interfere with the performance of an illegal act, merely' because it is illegal, in the absence of any injury to property rights.</p> <p>2. Injunction to Restrain Nuisance at Suit of Private Individual. "Where private individuals suffer an injury quite distinct from that of the public in general, in consequence of a public nuisance, they are entitled to an injunction and relief in equity.</p> <p>3. Injunction on Application of Attorney General. The attorney general, on his own' motion, in behalf of the state, may institute proceedings by information in chancery to prevent obstructions or to abate nuisances on the public highways, streets, bays or harbors, as citizens have in them a vested right of enjoyment and user; but the state, as father of the people, and guardian of public morals, cannot institute such action in the absence of property rights or other interests conferring jurisdiction.</p> <p>4. Injunction to Restrain Ultra Vires Corporate Acts. A corporation can exercise only such powers and privileges as its charter confers; if it transcends its charter powers the state can elect to proceed at law to annul the charter, or in chancery to enjoin it from acting ultra vires.</p> <p>5. Charter a Contract—Property Right of State Therein. If, as conceded, a charter is a contract between the state and a corporation, the former has such a property interest therein as will give a court of equity jurisdiction of the cause, to ascer- . tain whether the facts charged in the information are true, and having acquired jurisdiction for any purpose, it may enjoin such acts on. the part of defendant as amount to infractions of the laws, although such acts may be criminal in their nature..</p> <p>6. The defendant is a corporation organized under the laws of Illinois for the purpose of establishing and maintaining a driving-park and race track, where running, trotting and other meetings might be held. It appeared that the defendant permitted during the races conducted by it, betting and wagering upon its premises upon the races, and licensed persons, clubs and bookmakers to engage in the business of making bets and wagers upon such races on its grounds and elsewhere. At the suit of the state by the attorney-general by information in the nature of injunction, held that the injunction should issue,, and a motion to guash the writ issued should be denied.</p>

<p>1. Telephone Companies—Rates fob Telephone Service, Where a municipal corporation grants to a telephone company the right to use the streets for the installation of its telephone service, and as a condition of such grant the telephone company agrees that it will not increase to its present or future subscribers' the rates for telephone service then established, it is the duty of such telephone company to comply with the terms of such ' ordinance and furnish the service agreed to be furnished at the rates fixed by the ordinance.</p> <p>2. Same—Character of Service—Rates. Nor is it material that an improved service is furnished to such subscribers, or that such improvements were not in existence at the date of the passage of the ordinance. Having adopted the improvements it is the duty of the company as a public service corporation to furnish telephone service with all such improvements at the rates fixed by the ordinance.</p> <p>3. Ordinances—Whether Public Laws or Private Contracts. Such an ordinance is not a mere private or business contract between the city and the telephone company, but is an exercise of the sovereign or governing power of the state delegated to the city by its charter.</p> <p>4. Ordinances—Practical Construction—Estoppel and Acquiescence. There can be no estoppel against the enforcement of an ordinance which is a public law, by reason of any practical construction placed thereon by the parties or by acquiescence in such practical construction.</p> <p>5. Payment in Excess of Rate Fixed by Ordinance—Whether Voluntary. Where a public service corporation exacts charges in excess of those allowed by law, the payment of such charges is not regarded as voluntary, nor is the making of any protest or objection necessary in order to recover back such excess charges.</p>

<p>Bill for injunction. Gen. No. 246,129. Heard before Judge Thomas G. Windes.</p>

<p>Bill to obtain instructions of court as to complainant’s duty as trustee. Heard before Judge Murray F. Tuley.</p>

<p>1. Statutes—Repeal by Implication. In 1891 the legislature passed an act in reference to trusts and combines. In 1893 this act was amended by adding two new sections. On the same day the legislature passed an entire new act upon the same subject. Held, that the act of 1893 did not repeal the act of 1891, as such was not the intention of the legislature.</p> <p>2. Constitutional Law—Class Legislation. In 1897 the legislature amended section one of the act of 1891 by adding a proviso, that in the mining, manufacture or production of articles of merchandise the cost of which is mainly made up of wages, it shall not be unlawful to enter into joint arrangements of any sort, the principal object or effect of which is to maintain oi increase wages:</p> <p>Held (1) That section one as amended was in effect an amendment of the General Incorporation Law, and operated as an amendment of some but not all of the charters of the corporations incorporated under that law and therefore was prohibited by section 2, article 2, of the constitution of 1870.</p> <p>(2) That section one as amended was unequal and partial legislation forbidden at common law and in violation of the constitution of the state, and of the 14th amendment to the Federal constitution, which prohibits a state from denying to any person the equal protection of the laws. One judge dissenting upon the proposition that the entire section was void on account of the unconstitutional proviso.</p> <p>:3. Corporations'—Reserved Power to Regulate. Nor can the act be justified by the provisions of section 9 of the General Incorporation Law, which reserves to the general assembly the power to regulate all corporations formed under the act. The legislature has the right to classify all corporations, but such classification must not arbitrarily discriminate between corporations in substantially the same situation.</p> <p>4. Statutory Construction. In construing statutes the intention of the legislature is to be deduced from every part of the statute.</p> <p>•5. Constitutional Law—Exemption of Building and Loan Associations. The exemption of building and loan associations from the operation of a law requiring corporations to make an annual report that they are not a party to a trust or combine is not an arbitrary classification and does not invalidate the law.</p> <p>-6. Evidence—'Self-incrimination—Immunity. Where the officers: of a corporation are compelled to file an affidavit that the corporation is not a member of any trust or combine, and it is provided that no corporation or individual shall be subject to any criminal prosecution by reason of anything truthfully disclosed by such affidavit, the immunity clause is sufficiently broad to protect the corporation and its officers, and such law is not obnoxious to the provisions of section 10, article 2, of the Illinois constitution, which provides that no person shall be compelled in any criminal case to give evidence against himself.</p> <p>‘7. Same—Criminal Case. The term “criminal case” is broad enough to include any prosecutions for penalties or forfeitures.</p> <p>'8. Constitutional Law—Effect of Unconstitutional Section. The fact that one or more sections of a law are unconstitutional does not affect the entire law where the remaining sections make a complete law in themselves.</p>

<p>1. Attorneys—Conduct of. The practice of attorneys soliciting cases on contingent fees condemned.</p> <p>2. Divorce—Setting Asms Decree of—Procuring Absence op Defendant. Where a party obtains a decree or judgment in the absence of the opposite party, who has been led to believe that his case was: not to be heard at the particular time, the court will set such judgment or decree aside where the case was heard in such party’s absence.</p> <p>3. Decree of Divorce—Setting Aside Where Defendant Guilty of Adultery. Where a decree of divorce has been awarded, the court will not set the same aside on the petition of the defendant, where such defendant has been guilty of adultery, as, if a new trial were ordered, the decree would be the same.</p> <p>4. Same—When Set Aside—Must Show Ground of Defense. A court will not set aside a decree of divorce on the petition of the defendant unless a reasonable ground of defense is shown.</p> <p>5. Same—Adultery of Defendant. Where a defendant who is seeking to set aside a decree of divorce is charged with adultery, the court should give such defendant an opportunity to be heard where there is a reasonable doubt about the matter.</p> <p>6. Alimony—How Affected by Adultery. Where a defendant seeking to set aside a divorce decree is charged with adultery and the illicit relation is apparently continued, the court will not allow alimony.</p>

<p>Indictment for manslaughter. Petition for change of venue on the ground of local prejudice. Heard before Judge George Kersten.</p>

Indictment for manslaughter. Motion for change of venue from Cook county, Illinois, on the ground of local prejudice. P. G. D. No. 76,382. Heard before Judge Ben. M. Smith.

<p>1. Motion to Quash at Common Law. At common law a motion to quash an indictment was addressed to the sound discretion of the court. (Kersten, J.)</p> <p>'2. Rule in Illinois. But in Illinois error may be assigned upon the overruling of a motion to quash, and it is the duty of the court to quash if the indictment is insufficient to sustain a conviction. (Kersten, J.)</p> <p>'3. Statutes—Rule of Construction. As a general rule the courts will construe statutes as declaratory of the common law and not in derogation of it. And when words are used in a statute which have a well known meaning at common law, the courts will give such words their common law meaning. (Kersten, J.)</p> <p>4. “Unlawful Act”—Defined. The words “unlawful act,” as used in the statute defining manslaughter, mean unlawful as defined by the common law, and include not only criminal acts, hut trespasses and civil wrongs which are not prohibited by statute. (Kebsten, J.)</p> <p>5. Negligence—Manslaughter. If a death occurs through the negligent use of dangerous agencies it is manslaughter. But the negligence to he “unlawful” must amount to an omission of a legal duty and not a mere neglect of a social or moral duty. (Kebsten, J.)</p> <p>6. Manslaughter—Proximate Cause. The unlawful act or omission must have been the proximate cause of the death. (Kebsten, J.)</p> <p>7. Statutes—Revision of Entibe Subject—Repeal. A statute which is an entire revision of a particular subject-matter repeals the common law upon that particular subject. (Kebsten, J.)</p> <p>8. Criminal Code Does Not Repeal Common Law. The criminal code was not intended as a complete codification of the criminal laws; the common law remains in force except in so far as it is expressly repealed. (Kersten, J.)</p> <p>9. Fire Ordinances—Upon Whom Duty Falls. Where city ordinances prescribe that buildings of a certain class shall he equipped with fire apparatus, equipment, etc., hut fail to designate the person upon whom the duty rests, it will he presumed that it was the intention of the city council to impose such duties upon the owner or lessee of the building. (Kersten, J.)</p> <p>10. Ordinances—Judicial Notice—Pleading. The rule is well settled in Illinois that courts will not take judicial notice of city ordinances, nor are such ordinances admissible in evidence unless properly pleaded. (Kersten, J.)</p> <p>11. Indictment!—Conclusions in. In an indictment the facts constituting the offense must be set out. The indictment cannot he aided by the averment of conclusions of law or fact. (Kersten, J.)</p> <p>12. Criminal Negligence—Legal Duty. A defendant cannot he found guilty of manslaughter on account of alleged negligence in omitting to perform an act unless the law imposed a legal duty upon him to perform such act, or unless such duty had been directly assumed by contract or otherwise. (Kersten, J.)</p> <p>13. Allegations of Indictment. An argumentative averment of fact is not sufficient in an indictment. (Kebsten, J.)</p> <p>14. Common-law Duty. In the absence of statute there is no duty on the part of the owner of a building to furnish fire apparatus, and where it is not alleged that it was reasonably necessary or usual and customary to furnish such apparatus, the offense of manslaughter cannot be predicated upon a failure to so equip whereby death was caused. (Kersten, J.)</p> <p>15. Assumed Duty. An allegation that the defendants had undertaken the care, charge, management and control of a theater building and stage and that it became the duty of the defendants to see that the ordinances and laws in relation to the installation of fire apparatus and equipment were complied with, is not a sufficient allegation that the defendants had assumed or taken upon themselves the duty imposed upon the owner or lessee of the building to furnish such fire apparatus and equipment. (Kersten, J.)</p> <p>16. Allegation as to Duty. An allegation that it was the duty of' a defendant to perform certain acts is a mere conclusion of the pleader. (Kersten, J.)</p> <p>17. Involuntary Manslaughter—'Wilful Act. It is a serious question whether the offense of voluntary manslaughter can be“wilfully” committed. (Kersten, J.)</p> <p>18. Misjoinder. Whether several defendants who are charged with-failure to perform several duties can be joined in the one indictment, doubted. (Kersten, J.)</p> <p>19. Indictment—Conclusions. An allegation that if certain fire-equipment had been provided as required by an ordinance, a fire could have been extinguished, is a mere conclusion of the pleader. (Kersten, J.)</p> <p>20. Ordinances—Duty Under. An ordinance which provides that every building of a certain class shall be equipped with certain fire apparatus and equipment, but which does not specifically designate the person by whom the duty shall be performed, cannot be made the basis of an indictment for manslaughter against the manager, business manager or stage carpenter of a theater for criminal negligence in failing to comply with such ordinances, whereby death was caused. (Green, J.)</p> <p>21. Proximate Cause—Failure to Supply Fire Apparatus. Where-a fire was caused in a theater building by a spark emitted from an electric light placed in close proximity to certain draperies-upon the stage, and a large number of persons are burned to death, an indictment for manslaughter cannot be sustained for negligence in failing to equip the building with fire apparatus and equipment. The fire will be considered the proximate cause of the death, and not the failure to supply the fire apparatus and equipment, even though it is alleged that if such apparatus and equipment were installed, the fire would have been extinguished. (Green, J.)</p> <p>22. Misjoinder. The manager of a theater and building, the business manager of such theater and the stage carpenter thereof, cannot be joined in an indictment for manslaughter for an alleged failure to equip such theater and building and the stage thereof with certain fire apparatus and equipment. (Green, J.)</p>

<p>• 1. Fire Apparatus—Duty to Provide. There is no duty at common law requiring the owner or occupant of a building to provide fire-escapes and fire apparatus.</p> <p>'2. Places of Amusement—Duty to Provide Safe Place. Proprietors of places of amusement are bound to provide a safe place for their patrons and to exercise reasonable care for their safety.</p> <p>3. Duty—Necessity of. Where there is no duty imposed either by law or contract upon a particular person to do a particular act, no penalty can be imposed upon him for its non-performanee. The duty must be a plain one, and the person who must perform it must be specifically designated.</p> <p>4. Statutes^—Ordinances—Duty to Uphold. It is the duty of courts to so construe all legislative enactments as to uphold their validity if it can reasonably be done.</p> <p>5. Ordinances—Duty to Comply With. Although an ordinance providing for the installation of certain fire apparatus in buildings of a certain class fails to designate the person who shall perform the duty, it is a violation of the ordinance to use and occupy a building constructed in violation of the law, without complying with the ordinance.</p> <p>6. Ordinance—Invalid, Where Subject to Approval ce Non-ofeicial Body. Where an ordinance, which provides that every building of a certain class shall he equipped with a fire sprinkler equipment, makes the installation of such equipment subject to the approval of a non-official body, the requirement in regard to such approval is invalid.</p> <p>7. Same—Whether Entire Ordinance Invalid. Where an ordinance is entire, and each part has a general influence over the rest, and one part of it is void, the entire ordinance is void. The void part of the ordinance makes the whole ordinance void if the void and valid parts are so connected as to he essential io each other. If the invalid part can he separated from the other provisions of the law, and the purpose and intent of the legislature remains plain and effective, the invalid part may he disregarded.</p> <p>8. Same. The provision in the ordinance requiring the approval of the non-official body may he disregarded without impairing in any degree the purpose or usefulness of the law.</p> <p>9. Causa Próxima Non Remota Spectator. It is elementary that to establish liability for the doing of an unlawful act, the' wrong mhst he the direct and proximate cause of the injury.</p> <p>10. Same—Manslaughter—Violation of Ordinance or Statute. The mere violation of an ordinance or statute whereby death ensues does not of itself subject the wrongdoer to punishment for manslaughter.</p> <p>11. Manslaughter!—Commission of Unlawful Act. A person cannot be held liable for the crime of manslaughter merely because at the time of the killing he was engaged in an unlawful act, unless the unlawful act or omission was in its nature wrongful independent of statutory enactment, or unless the’ natural consequences of the unlawful act or omission are dangerous to life or limb, or the act is malum in se.</p> <p>12. Proximate Cause of Death—Failure to Supply Fire-escapes. Where an ordinance providing that theaters shall be supplied' with fire apparatus and equipment is not complied with, and a fire breaks out and death is caused, the failure to comply with such ordinance is the proximate cause of the death.</p> <p>13. Negligence—Violation of Ordinance. The violation of an ordinance is prima facie evidence of negligence.</p> <p>14. Manslaughter!—-Lue Caution and Circumspection—Question fob Juey. It is a question for the jury to determine whether the defendants used due caution and circumspection in failing to equip a theater with fire apparatus and equipment as required by law, whereby death is caused.</p>

<p>1. Taxes—Right of Mortgagee to Pat. Taxes and assessments are a paramount lien to all others, and a mortgage lien holder, even in the absence of covenant, has the right to pay and discharge such taxes and assessments where the mortgagor fails to do so.</p> <p>2. Same—Right to Redeem. A. mortgage lien holder may- redeem from tax sales and buy up tax certificates and tax titles after the time for redemption had expired, paying a reasonable consideration therefor. The amount so paid, with interest, can be recovered in the foreclosure proceedings.</p> <p>3. Mortgagee as Purchaser at Tax Sale—Rights of. There is nothing in the mortgage contract which prevents the mortgagee from purchasing the premises at a tax sale. But neither the mortgagor or the mortgagee are allowed to obtain any advantage, the one over the other, by reason of any such purchase, nor will such purchase be allowed to ripen into an adverse title as against the other party, or those in privity with him.</p> <p>4. Same—Seven Years’ Payment of Taxes. Nor can payment of taxes by the mortgagee or the mortgagor in possession be relied upon as payment of taxes under color of title under the seven-year Limitation Act.</p> <p>5. Same—Payment of Taxes by Mortgagee. The mortgagee has the right to pay taxes and add the amount thereof to the mortgage debt. A purchase at a tax sale is not a payment of taxes, nor is the purchase of a tax certificate a payment of taxes or a redemption.</p> <p>6. Same—Rights of Mortgagee Holding Tax Certificate. Where a mortgagee becomes a purchaser at a tax sale he is in the position of any other purchaser with all the incidents and obligations imposed by the statute.</p> <p>7. Taxes—Payment of by Tax Purchaser in Succeeding Years.. If a mortgagee holding a tax certificate fails to pay the next year’s taxes and the property is sold, the mortgagor has the right to redeem from the first sale by paying only the amount for which the land was sold.</p> <p>8. "Same—Rights of Mortgagors. Where a mortgagee purchases a tax certificate the mortgagor has the right of election, whether the mortgagee shall be considered as a purchaser or-as holding the tax certificate for the benefit of the mortgagor..</p> <p>9. Taxes—Sale of Vigintillionth Interest. The sale of a vigintillionth of certain land for the non-payment of taxes is not a. cloud upon the title, and a mortgagee redeeming from such a. sale cannot charge the amount so paid against the mortgagor.. The maxim, de minimus non curat lex, applies.</p> <p>10. Tax Sales. The rule of caveat emptor is applicable to tax sales..</p> <p>11. Tender. To stop the running of interest in case of a tender,. the tender should be kept good by paying the money into court.</p>

<p>1. Corporations—Right of Stockholder to Examine Books of Subsidiary Corporation. Where an English corporation owns the entire stock of an American corporation, and does no other business of any kind except to own such stock, a stockholder in the English corporation is entitled to examine the books of the American corporation, and is not obliged to resort to the English courts for relief.</p> <p>2. Same—Right of English Company to Own Entire Stock of American Corporation. Whether it is lawful for an English company to own the entire stock, of an American corporation, quaere.</p> <p>3. Same)—Laches. But where a stockholder takes no action to protect his rights for over four years, and no sufficient reason appears why he did not do so, he is guilty of laches.</p>

<p>1. Street Railroads—Frontage Consents. Under the act of March 30, 1887, it is necessary to the validity of a grant of the city council to a street railroad of the right to use the streets that the petition upon which the council acts shows the consent of a majority of the owners of all private property in each mile and any fraction thereof petitioning for the construction of the road, if the petition shows such majority the action of the city council cannot he attacked except for fraud.</p> <p>2. Injunction—Construction of Railroad. A property owner cannot maintain a bill to restrain the construction of a railway track in a public street. The injury is to the public and a private individual cannot file a bill on behalf of the public.</p> <p>3. Same—Unauthorized Construction. Even though the railroad' is being laid without valid municipal authority or ordinance, a property owner cannot maintain a bill for an injunction. It must be left to the municipal authorities to remedy the wrong.</p> <p>4. Same—Effect of Frontage Law. The frontage law was intended, however, to provide a remedy for the property owner where there is an unauthorized invasion of a street by a railroad company.</p> <p>5. Same—Majority Consent. But this remedy cannot be availed of where the majority of the frontage of the mile in which the complainant's property is located petitions for the laying of the railroad. This is true even though the ordinance is otherwise invalid.</p> <p>6. Damages—Bond. Where the question is solely one of damages, or the right of complainant is not clear, the court may deny an injunction and require the defendant to give bond to secure the complainant against loss or damage.</p> <p>7. Frontage Consents—Property of Steam Railroad Not Considered. In determining whether a majority of the abutting owners have consented to the laying of a street railroad, the frontage occupied by a steam railroad abutting on such street should not be taken into consideration in determining the total frontage, as steam railroads are considered as public highways.</p> <p>8. Motive of Complainants. The court will consider the motives of complainants where there is evidence that the litigation is not being prosecuted in good faith and for the protection of complainants’ rights, and the complainants withhold information which would enable the court to pass upon the charge. Under such circumstances where complainants’ rights are otherwise doubtful, an injunction will be denied.1 </p> <p>'9. Laches. A bill will not lie to restrain the construction of a street railway where the complainant delayed until a considerable portion of such railway had been constructed.</p> <p>10. Same—Knowledge of Ordinance. Such laches is not excused because the complainant did not know of the invalidity of the ordinance. The complainant is chargeable with notice of any defects, in the petition of the property owners, the proceedings of the city council, or the city ordinance, which are apparent on the face thereof.</p>

<p>Petition for a writ of prohibition. Circuit court of Cook county, Gen. No. 69976. Heard before Judges Murray P. Tuley and Oliver H. Horton, en banc.</p>

<p>1. Jurisdiction of Courts—Conflict Between State and Federal. The pendency in a Federal court, of a creditors’ bill filed by certain judgment creditors under which receivers were appointed, with authority to operate the property under the orders of the court, is not a bar to a subsequent proceeding instituted in the state court by minority stockholders, to restrain the corporation, its officers and directors, from entering into and carryng out certain contracts alleged to be ultra vires.</p> <p>2. Same—Res Adjudicata. Where the Federal court has decided that there is no conflict, this is not conclusive on the state court.</p> <p>3. Same—Creditors’ Bills'—Nature of. A creditors’ 'bill filed in a Federal court against a corporation to collect unpaid judgments, is not in the nature of a winding up proceeding and does not subject either the corporation or its stockholders to the exclusive jurisdiction of such court, in their relations with each other.</p> <p>4. Receivers—Whether Necessary Parties to Stockholders’ Suit. The receivers of a corporation are not necessary parties to a minority stockholders’ suit, where the controversy relates to the voting power of certain stock held by a trustee, the legality of an election of, and the extent of the power of directors, etc.</p> <p>5. Parties—Cestui Que Trust. A cestui que trust is not a necessary party to litigation in which he is represented by the trustee.</p> <p>6. Injunction—Annulling Past Acts. Where a bill is filed to restrain the doing of a certain act, the doing of which should and would have been enjoined, but for the intervening injunction of a Federal court, it is the duty of the court to issue the injunction to annul such acts, upon the dissolution of the restraining order in the Federal court.</p> <p>7. Public Service Corporations)—Lease of Property of. A public service corporation is without power to lease all of its property, thereby disabling itself from performing its public duties. The state or any stockholder may prevent the execution of any such lease.</p> <p>8. Same—Public Policy. • But if the public policy or statutory law of the state permits such a corporation to execute such a lease, neither the state nor any stockholder can object.</p> <p>9. Same—Ultra Vibes—Estoppel of Stockholder. Where the property of the corporation is leased in violation of the charter any stockholder can enjoin the transaction even though the state could not object. Such right, however, is personal to the ■ stockholder, and he may by his acquiescence estop himself and his successors in title from thereafter objecting.</p> <p>10. Change in Corporate Purpose—Consent of Stockholders. Unless the law or charter otherwise provides-, the (unanimous consent of the stockholders is required to effect a fundamental change in the corporate purposes.</p> <p>11. Powers of Directors.—Increase of Capital Stock. Where the charter provides that the capital stock may he increased and • subsequently provides that all powers of the Corporation are conferred on the board of directors, only the ordinary powers are referred to. The power to increase the capital stock is so fundamental a change as to require the unanimous consent of all the shareholders.</p> <p>12. Corporations—Street Railroads—Power to Lease. Where street railroads are permitted by express statute to lease their right of way, the fact that the charter of a street railway company and the act under which the’ company is organized, are silent with respect to the power to lease, does not prevent the exercise of such power.</p> <p>13. Same—Consent of Stockholders. Unless the company was expressly empowered to lease its right of way, it could not by the mere act of its directors or even without unanimous consent of its stockholders, change its character from an operating to a leasing company.</p> <p>14. Change of Corporate Purpose—Whether Fundamental. It is doubtful whether a change by a street railway company from an operating to a leasing company, is of. so fundamental a character, as to require the unanimous consent of all the stockholders.</p> <p>15. Lease of Street Railway—Change in Same—Estoppel of Stockholders. Where a lease of a street railway which is not ultra vires in the sense that it is not void, has been acquiesced in by all of the shareholders, the shareholders are likewise-es-topped to question an amended lease which changes the terms of the original lease. The acquiescence of the shareholders in the original lease is not merely a consent to the terms of such lease, but also a consent that the fundamental character of the corporation should also be changed from an operating to a leasing company.</p> <p>16. Power of Board of Directors to Lease -Property. Where a street railway company leases its right of way under legislative authority, the hoard of directors have power to make changes in such lease.</p> <p>17. Board of Directors—Vacancies—How Filled. The statute in relation to the election of directors provides that directors must he elected by the stockholders and states that “all other vacancies to be filled in accordance with by-laws.” Held that inasmuch as it was the universal practice in Illinois for at least 35 years to permit vacancies in the board of directors to be filled by the other members of the board, that the court would not overthrow such a long settled practice, by holding that such vacancies must be filled by the stockholders.</p> <p>18. Majority of Stockholders—What Constitutes. The directors of a street railway company made a lease of the company’s right of way, contingent upon the approval of a majority of the stockholders and provided for the calling of a special meeting of the stockholders “for the purpose of considering and voting upon the question of approving the action of the board of directors.” Part of the stock, the property of the lessee, was held in trust under a deposit agreement, to secure the performance of the lease. Held that such deposited stock was incapa, ble of being legally voted by the trustee, and therefore should not be taken into consideration in determining whether a majority of the outstanding stock had voted in favor of the lease.</p> <p>19. Corporations—Acquisition of Stock in Other Corporations. It is against public policy for one corporation to acquire a majority of the 'stock of another corporation for the purpose of controlling it. The holding of stock in other corporations for some purposes is not necessarily ultra vires.</p> <p>20. Same—Right of Lessee Street Railway Company to Own Shares of Stock of Lessor Company. It is not against the public policy of Illinois for one street railway company to hold stock in another street railway company under certain circumstances, and where a lessee company is required to make a deposit in money or securities to secure the performance of the lease, the lessee corporation had the implied power to invest its funds in the shares of stock of the lessor company, as incident to the express power of acquiring a street railroad by lease, such purchase not being made for the purpose of siecuring control of the lessor company.</p> <p>21. Stockholder—Right of Record Holder to Vote. The corporation and the other stockholders are not concerned with the beneficial ownership in determining the right of a stockholder of record to vote.</p> <p>22. Street Railroads—-Legislative Power to Lease. Under the act of 1855 (Pr. L. 1855, p. 304) railroad companies have the power to lease their entire road.</p> <p>23. Same—Lease to Non-operating Company. It is not essential that the lessee railroad should at the time of the lease he an-operating company.</p> <p>24. Same—Right oe Stockholders to Attack Lease. A stockholder of a lessor street railway company has no standing to-attack an amendatory lease on the ground that it was made to a non-operating company, where such stockholder had assented to the original lease.</p> <p>25. Same—Whether Company Non-operating. Assuming that a lease of a street railway is inoperative because made to a non-operating company, an amendatory lease made thereafter is-not invalid, where the lessee company has acquired! and operated certain extensions.</p> <p>26. Statutes—Repeal oe. The act of 1855 which permits railroad companies to enter into operative contracts, and to borrow money, is not in conflict with, and is not repealed by, the general incorporation act of 1872, or by the act of June 9, 1897,. in relation to street railroads.</p>

<p>1. Citizenship—Whether National or State. The right of citizenship as distinguished from alienage is a national right or condition, and pertains to the confederate sovereignty of the United States, and not to individual states.</p> <p>'2. Constitutional Law—Whether National Common Law. The constitution of' the United States presupposed the existence'of the common law, and to a limited extent the principles of the common law prevail in the United States as a system, of national jurisprudence.</p> <p>■3. Citizenship—Child Born of Foreign Parents. The rule that a child born in.a foreign country is a citizen of the country of her parents, is one confined to countries which derive their jurisprudence from the civil law, and is not the rule in this country.</p> <p>-4. Constitutional Law—Citizenship—WIeat Constitutes—Child Born of Foreign Parents. The fourteenth amendment to the constitution of the United States provides that “all persons bom and naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Under this provision every person bom within the dominion and allegiance of the United States, whatever the nationality of his parents, is a natural born citizen of the United States.</p> <p>5. Same—Children oe Ambassadors, etc., Exceptions to Rule. This rule does not apply to children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence by a fiction of public law is regarded as a part of their country. Nor does the rule apply to persons born on a public vessel of a foreign country, while within the waters of the United States. The clause in the 14th amendment “subject to the jurisdiction of the United States” excludes all such persons from the operation of the general rule. Indians sustaining tribal relations are also excluded.</p>

Bill for construction of will creating a trust. Cross-bill by one of the beneficiaries to declare trust provisions of will null and void. Heard'on demurrer to cross-bill before Judge Murray F. Tuley.

<p>1. Contracts—Union Labor. A private individual has the undoubted right to insert in his agreements that none but union labor shall be employed in carrying out the contract.</p> <p>2. Same—Board of Education. The board of education being public officials cannot insert such a stipulation in its contract from mere sentiment or caprice, unless such action would subserve the public interests.</p> <p>3. Same—Public Policy. If the board should decide that-it is to* the public interest to insert in its contracts that none but union labor should be employed, or if the board should provide that none but union workmen should be employed upon the pay-roll of the board, no one can complain.</p> <p>4. Arbitration. There is no such legal “controversy” between the-parties upon the above facts as is contemplated by the act under which the submission is made.</p>

Indictment for forgery heard before Judge Arthur H. Chetlain. After the close of the state’s case a motion was made to find for the defendants.

<p>Indictments for forgery and perjury. Motion to quash, the indictments. Heard before Judge Richard S. Tuthill.</p>

<p>1. Capital Stock—Trust Fund rob Creditors. The capital stock of a corporation is a trust fund for its creditors. This trust fund consists of the capital paid, in and that which the creditor has promised to pay in.</p> <p>2. Same—Device to Avoid Stock Liability. Any device between stockholders, or between stockholders and the corporation, by which the stockholders’ liability to the creditors is sought to' be avoided! is against public policy and void, even though the transaction may be binding as between themselves.</p> <p>3. Subscription Taken in Property—Overvaluation—Honest Mistake, etc. A subscription to stock may be paid in property but there must be an honest attempt to arrive at the actual value of the property. If the property is fraudulently overvalued, such overvaluation will he held void as a matter of law, although an honest mistake as to such value will not invalidate the transaction.</p> <p>4. Same—Effect of Overvaluation—How Stock Must be Paid fob.. If the property contributed in payment of a subscription is not valued in good faith, or if there is an intentional overvaluation by the directors, or if the property is entirely worthless, the stock will be considered as not fully paid. As against creditors the stock must he paid for in “money or money’s worth.”</p> <p>5. Same—Payment of Subscription in Property—Good Faith of Directors. To constitute a valid payment of a stock subscription by the transfer of property, there must he good faith on the part of the directors. The law does not require infallible judgment, but where the evidence shows an intentional overvaluation or any device to obtain possession of the stock without fully paying for it, the transaction will be deemed fraudulent in law and in fact.</p> <p>6. Same—Crude and Undeveloped Inventions as Payment for Stock Subscriptions. Where the evidence shows that an inventor and organizer of a corporation turned over to the corporation in full payment for his subscription of $2,000,000, certain crude and undeveloped inventions which had never been in use and had no known value, and the hoard of directors was controlled by such inventor, and it was not shown that any of said hoard honestly believed that the inventions were worth the amount of said subscription and there was no honest discussion or inquiry as to the value of such inventions, it was held that the scheme was a fraudulent one and the stock could not he considered as paid up.</p> <p>7. Same)—Entire Stock of Corporation Issued in Exchange for Certain Inventions—Whether Paid for. Where the entire capital stock of a corporation is issued in exchange for certain inventions to be used in a certain amusement enterprise, and the company possessed no land, or site for the projected building, and it had no means of obtaining any money, except from its subscriptions, these facts must be taken into consideration in determining the good faith of the transaction.</p> <p>8. Same—Value of Property—Future Profits—Speculative Values. Property taken in payment of stock subscription must be capable of pecuniary estimate. A guess or an estimate as to the value of a right to use certain crude and undeveloped inventions, based entirely on speculative profits from the future use of such inventions cannot he considered as determining the' value of such inventions.</p> <p>9. Same—Arrangement Between Stockholders as to Payment of Subscriptions. Any arrangement between stockholders by which the stock is but nominally paid up, the corporation not in fact getting the benefit of the price in good faith, will he regarded as a sham and not as a valid payment, as against the creditors of the corporation.</p> <p>10. Same—Fraudulent Payment of Subscription. Where certain inventions are turned over to a corporation in payment of a subscription to its stock and a large part of such stock is turned hack into the treasury of the corporation to he used for promotional purposes, such transaction will be considered as fraudulent both in law and in fact.</p> <p>11. Parol Evidence—Admissible to Show What Agreement Referred to. Where a subscriber for the bonds- of a certain corporation is entitled to certain shares of stock as a bonus and no p-articular shares of stock are designated, parol evidence is admissible to show what particular stock is referred to.</p> <p>12. Stock Subsoriptiton—Effect of Issuance of Stock as Fully Paid—Recital in Certificate. The mere fact the stock was issued as fully paid does not make it so in fact. The subscribers cannot safely rely upon the recital on the face of the certificate that the stock is fully paid and make no further inquiry.</p> <p>13. Certificate of Stock—Receipt of—Implied Promise to Pay Therefor. A promise to take a share of stock imports a promise to pay for it, even though the certificate is stamped “non-assessable.”</p> <p>14. Subscription for Bonds and Stocks—Application of Payments —Stock Liability. Where defendants subscribe for bonds of a corporation and receive certain shares of the capital stock of the corporation as- a bonus, and an action is instituted to enforce a liability on such stock to the creditors of the corporation, a court of equity will not treat the money paid under the subscription agreement as paid upon the stock, as against the claim of creditors becoming such with knowledge that the stock was unpaid.</p> <p>15. Stock Subscription—Bona Fide Purchasers—Bonus Stock. Where certain persons subscribed for the bonds of a corporation and received certain shares of its stock as a bonus, to be delivered upon payment for the bonds, such subscribers were put upon inquiry as to the character of the stock and the right of the corporation to dispose of it at less than par. If no inquiry was made, the law holds such stockholders chargeable with that knowledge which' a reasonable inquiry would have disclosed.</p> <p>10. Same—Whether Stock Transferred by Corporation is a Bonus or Gift, or a Sale. The defendants subscribed for certain corporate bonds and received with such subscription certain stock of the corporation as a gift or bonus. The stock in question had been previously subscribed for and supposedly paid for by the transfer to the corporation of certain inventions of doubtful value, and thereafter such stock was turned back into the treasury of the corporation for the purpose of • re-issuing the same to the subscribers for the bonds. Held that inasmuch as the stock was turned back to the corporation without anything being paid for it, it stood in the same position as if it was never issued and upon its re-issuance to the subscribers for the bonds, such subscribers cannot be treated as assignees but must be treated as original subscribers and held liable as such.</p> <p>17. Subscription Agreement—Requisites of. No particular form of words is necessary to constitute an agreement to become a stockholder. If the contract amounts to an agreement to take from the company its stock that is sufficient.</p> <p>18. Stockholders—Chargeable with Notice that Stock Must be Paid for. Subscribers to the capital stock of a corporation are-presumed to know that the corporation could not legally issue-fully paid stock to any ond agreeing to become a stockholder,, without the same being paid for in money or in money’s worth..</p> <p>19. Liability of Stockholders'—Stock Received as Bonus with Purchase of Bonds—Effect of Refusal to Accept. Certain persons agreed to take and pay for certain bonds of a corporation. The subscription agreement provided that upon full payment being made the subscriber should be entitled to receive certain shares of stock as a bonus. After signing the subscription agreement and paying for the bonds, certain of the subscribers neglected or refused to accept the stock. Held. that the true construction of the agreement was that upon the payment for the bonds the subscriber eo instanti became entitled to the stock, and thereupon the liability of such subscribers became fixed as stockholders and they could not rescind such agreement in whole or in part, as against the creditors of the corporation.</p> <p>20. Same—Effect of Refusal to Accept Stock or Bonds. The-same measure of liability attaches to such of the subscribers of bonds who either refused or neglected to take either stock or bonds. Having paid for the bonds and not having exercised any right to rescind the subscription agreement their liability to creditors became fixed and determined.</p> <p>21. Subscription Agreement—Right to Rescind. Upon the execution of a subscription agreement, the liability of a subscriber to the creditors immediately attaches, and such subscriber cannot escape liability by a rescission of the contract.</p> <p>22. Stockholders’ Liability—Purchasers for Value—Liability of. Effect of Notice. A purchaser or assignee of stock which has not been fully paid is not liable to corporate creditors, where the stock has been, issued as fully paid and he has acquired the same in' good faith and without notice that it has not been fully paid. But if he has notice that it is not fully paid he is liable.</p> <p>23. Stockholder’s Liability—Extent of Knowledge that Stock was Not Paid up. Where the subscribers to bonds of a corporation receive an equal amount of the shares of stock of the corporation as a bonus and at the time of the making of the subscription they are informed that the capital stock has been ■paid up by the transfer to the corporation of certain inventions and patents, and such inventions and patents are of uncertain and doubtful value and such subscribers blinded by the promise of large dividends rely upon the statements of the officers of the corporation as to the value pf the inventions, etc., and make no independent inquiry, they are chargeable with knowledge that such stock is not paid up, and cannot he considered as purchasers for value.</p> <p>24. Same—Belief of Subscriber that Stook is Paid up—Effect of. The fact that the subscribers honestly believed that the capital stock was fully paid for is no defense to an action to enforce a stock liability. In order that such belief should he available as a defense it must be based upon a statement of facts which the purchasers believed to he true and which facts if true, would constitute a sufficient payment of such stock. A mere statement either of fact or law by a third person is not in itself a sufficient foundation for a belief, which the law will recognize as relieving such person from liability, hut the facts from which such conclusion is arrived at. must be considered.</p> <p>25. Same—Good Faith of Subscriber—Effect of Belief in Success of Enterprise. It is not a defense to an action to enforce a stock liability that the subscriber acted in good faith in signing the subscription agreement, or that he believed that the enterprise would be a success.</p> <p>26. Stock Subscription—Payment in Money’s Worth—Rule in Illinois. The courts of Illinois have not departed from the rule that a payment of a stock subscription is not good as ^against creditors where payment has not been made in money or money’s worth. Stock may he paid for in property hut such property must he valued in entire good faith. If there is an overvaluation combined with a failure to exercise any judgment as to the value of the property, or where there is an intentional overvaluation or where the circumstances show that the transaction-was a mere fraudulent device, the stock will not he considered as full paid.</p> <p>27. Same—Liability of Assignee—Effect of Notice. The purchaser of stock issued as "paid up” with notice that it is not paid up, or with notice of facts connected therewith, is liable to the creditor to the same extent as his immediate transferror.</p> <p>28. Same—When Stockholders are Bona Fide Purchasers—What Knowledge Imputed to Them. Persons purchasing the bonds of a corporation ‘ and receiving its stock as a bonus are not permitted to deal with the corporation with their eyes shut. As bond holders they are chargeable with notice of the contents of the mortgage and with the provisions of any contracts referred to therein, and as stockholders they must take notice of the amount of the capital stock, the contents of the charter, as well as the law of the land governing such corporations. Where the circumstances are sufficient to put a reasonably prudent and cautious man upon inquiry as to the good faith of the transaction by which the stock of the corporation is paid up, such subscribers cannot be considered as innocent holders.</p> <p>29. Subscription to Stock—Evidence of. Evidence examined and held sufficient to show that certain defendants were liable as subscribers to the capital stock, even though it was not shown that they actually signed the subscription agreement.</p> <p>30. Liability of Stockholders—Enforcement Against Estate— Personal Representatives not Made Parties. Where an action is instituted to enforce a stockholder’s liability, and such stockholder dies during the pendency of the suit, no decree can be rendered against his estate, where his personal representatives have not been made parties.</p> <p>31. Liability of Stockholders—Burden of Proof. Where complainants in an action to enforce stockholder’s liability, show that certain stock which had been transferred to one of the defendants was unpaid stock, the burden of proof is upon such defendant to show that he is a purchaser for value.</p> <p>32. Creditor’s and Stockholder’s Bills—Judgment and Contract Creditors-—Rights of. A judgment creditor has a standing in equity to pursue all the property of his debtor and can equitably attach all rights and credits of his debtor. A simple contract creditor has no such standing in a court of equity and can only file a bill to enforce stockholder’s liability by virtue of section 25 of the general incorporation act.</p> <p>33. Statute of Limitations—In Action to Enforce Stockholder’s Liability—When a Bar. A bill was filed to enforce stockholders’ liability and a demurrer was sustained thereto and the bill dismissed.' Upon appeal the judgment was reversed. The defendant was not notified of the redocketing of the case within five years as required by law. Held that the statute of limitations was a bar to the action.</p> <p>34. Same—Estate of Deceased Stockholders. Where an action is brought to enforce a stockholder’s liability and certain stockholders decease during the pendency of the suit, and the suit is not revived by bringing in the executors or administrators of such deceased stockholders within two years from the date of the issuance of the letters, the only decree that can be made against any executor or administrator is that the same be paid out of assets discovered or inventoried after the expiration of said two years.</p> <p>35. Stock and Stockholders—Liability of Trustee. Where certain shares of stock are deposited with a bank as trustee to deliver the same to the subscribers for bonds of the corporation as a bonus, and such bank merely acts as a conduit through which the corporation transfers said stock to the bondholders, such bank is not liable as a stockholder within the meaning of section 25 of the General Incorporation Act of Illinois.</p> <p>36. Enforcement of Stockholder’s Liability—Right to Set Off Claims as Bondholders. Where certain defendants subscribe for the bonds of a corporation and receive stock of the corporation as a bonus, and an action is instituted to enforce a stockholder’s liability with respect to such bonus stock, it was held that the defendants were not entitled to set off the amount of their liability on the stock against any claim they may have on the bonds. They must first pay for their stock and file their claim on the bonds.</p> <p>37. Bondholders—Right to Share Equally with Other Creditors—Application of Maxim “He that Doeth Iniquity Shall Not Have Equity.” Bondholders of an insolvent corporation who were also stockholders, but received their stock as a bonus with their subscription for bonds, are entitled to share equally with other creditors in the distribution of the corporate assets, even though they originally paid nothing for their stock. Although the transaction by which they received their stock as a bonus was fraudulent in law, there being no actual fraud, such stockholders cannot be considered as not coming into court “with clean hands.”</p>

<p>Annulment of Marriage on Ground that One of the Contracting Parties is Under the Age of Legal Consent. In Illinois the age of legal consent to marriage is seventeen years in males and fourteen years in females. The complainant was married to the defendant while he was under the age of seventeen years and ceased to cohabit with her before he arrived at that age. Upon a bill filed by him to annul such marriage it was held that the marriage was voidable, and that inasmuch as complainant had not cohabited with defendant after he arrived at the age of consent, he was entitled to disaffirm the contract of marriage and have the same annulled.</p>

<p>1. Indictment fob Assault with Intent to Mubdeb—Plea of Guilty—Sentence fob “Bubglaby, Etcetera”—Habeas Corpus. The petitioner was indicted for an assault with intent to murder, and upon a plea of guilty was sentenced for the crime of “burglary, etcetera,” to the Pontiac reformatory. Upon a petition for habeas corpus, held that this was a case where a party is indicted, pleads guilty to one crime and is sentenced by the court for another and a different and greater crime, and that the court had no jurisdiction to enter such judgment, and that the prisoner must be discharged.</p> <p>2. .“Burglary, Etcetera.” There is no crime within the statute _ known as “burglary, etcetera.”</p> <p>3. Sentence for Crime Not Upon the Record. Where a man is sentenced for a crime that does not appear upon the record, the jurisdiction of the court is lacking.</p> <p>4. Sentence for Crime to Reformatory Where Record Does. Not Show Age of Prisoner. The presumption of law is that the record being silent the prisoner was twenty-one years of age when he was sentenced to the reformatory. The relator was sentenced to the reformatory when there was nothing on the face of the record to show that his age was even inquired into, the law presuming him to be a man of twenty-one years of age when in fact he was eighteen. Held, that it is jurisdictional as to the right of the court to send the relator to the reformatory, and that this was a fatal objection to the right of the warden of the reformatory to hold the relator under such a mittimus.</p> <p>5. Amendment of Mittimus to Show Age of Prisoner. Relator was sentenced to the reformatory, the record not showing his age. Two years after he had been in the reformatory the relator was brought into court and the mittimus amended nunc pro tuna to show his age. Held, that it is going too far to hold that after a party had been in the penitentiary for two years he can be brought up and the judgment amended in his case by oral evidence, or that it can be corrected on account of an alleged misprision of the clerk after service of this' kind, and held that when that amendment was made the court was without jurisdiction, more than two years having elapsed, the party having served a portion of his sentence, and the court having no power to go back and make that legal which was illegal during the two years he was serving.</p>

<p>1. Trade-marks and Trade Names—Distinction'—Right to Exclusive Use of Trade Name. .. “Trade-mark” and “trade name” are nearly synonymous. There is no exclusive right in a trade name unless such name has the distinguishing qualities of a trade-mark and is used to distinguish the goods, wares and merchandise of the user.</p> <p>2. Trade Name—Infringement—Necessity of.—In the absence of fraud, deception or unfair competition, the user of a trade name cannot enjoin its use by others. (See note I—Ed.)</p> <p>3. Trade-marks—Geographical Name. A geographical name or term cannot be protected as an exclusive trade-mark. They must be supplemented by other words which import quality or standard.</p> <p>4. Trade-marks—Misleading Name. Where complainants use a geographical name which is misleading, the court will not protect such name as a trade-mark. (See note II—Ed.)</p>

<p>1. Assignment of Choses in Action at Common Law. At common law a chose in action, unless a negotiable instrument, was not assignable, unless the debtor assented to the assignment and promised to pay the assignee. •</p> <p>2. Same—Modern Rule. Under the modern authorities the gen- • eral test asi to whether a chose in action is assignable is whether or not it would survive and pass to the personal representatives of a decedent assignor if no assignment had been made. If it would so survive, it may be assigned so as to pass the interest assigned to the assignee; if it doés not so survive, it is not assignable either at law or in equity.</p> <p>3. Unearned Wages—Validity of Assignment of. Although the authorities are conflicting as to whether or not unearned wages may be assigned so as to be recoverable in an action at law, the better doctrine is that except as to wages actually due at the time of the assignment, such an assignment is an attempt to transfer a mere possibility of future earnings, and therefore as to such future earnings is not an existing chose in action.</p>

<p>Appeal from police magistrate. Heard before Judge Jesse Holdom.</p>

Bill for injunction and cross-bill. Circuit court of Cook county Gen. No. 244,799. Heard upon motion for a temporary injunction upon the bill and affidavits in support thereof, and the separate answers of the City of Chicago and commissioner of public works of the city of Chicago. Heard before Judge Murray B. Tuley.

Bill by complainant to set aside judgment of dismissal in suit between same parties. Demurrer to amended bill. Heard before Judge Jesse Holdom.

<p>1. Ordinance Requiring Identification Numbers on Automobiles, Validity of. An ordinance of the city of Chicago requiring all automobiles operated in the city of Chicago to display for identification, numbers and‘letters as provided in the ordinance, held, upon an application for an injunction against its enforcement, to be a valid exercise of the general police power of the city, in connection with the express power to regulate the use of the streets.</p> <p>2. Automobiles—Police Power of City Over. The automobile is a class unto itself and no reason can be perceived why the police power shall not be exercised as to any specific class. And it is a proper exercise of the police power and of the power to regulate the streets, for the city council to place them under such restrictions as will enable the police to enforce against them the penalty for exceeding the speed allowed by the city ordinance, and also to enable the police to enforce other restrictions, such as in regard to lights, the observance of the laws of the road bv such vehicles, etc.</p> <p>3. Police Power of Cities. The police power of the state is delegated to the cities under section 62 of the city and village act.</p> <p>4. Police Power—Exercise of By Cities—When a Judicial Question. It is for the city council to determine when an exigency exists for the exercise of the police power, hut what are the subjects of its exercise is clearly a judicial question: The exercise of legislative discretion is not subject to review by the courts when the measures adopted are calculated to secure the public comfort, safety or welfare, but the measure so adopted must have some relation to the ends specified.</p> <p>.5. Police Power of Cities, Extent of. The city council has no power under the guise of police regulation to arbitrarily invade the personal rights and personal liberty of the individual citizen. It cannot, in the exercise of the police power, prohibit an act which is harmless in itself, or pass an ordinance which unnecessarily or arbitrarily interferes with the right of the citizen to use the public streets.</p>

Bill for appointment of temporary receiver of property of insane person. Gen. No. 202,439. Heard upon affidavit and oral evidence in behalf of complainants and defendants, before Judge Farquin Q. Ball.

<p>1. Bail—Application foe—After Verdict of Guilty. Under the Illinois statute all persons are entitled to hail at any time before conviction, except where the offense is a capital one. Held, that where the defendant was indicted for reeciving stolen property the verdict of a jury finding the defendant guilty was a conviction, even though a motion for a new trial was pending, and that such defendant was not entitled to be released on bail.</p> <p>2. Bail—Nature of. Bail is both a constitutional and statutory right, and the court has no discretion in the matter except to fix the amount.</p>

<p>1. Streets—Obstructions in—Power of City to Authorize. It is not every obstruction of a street or sidewalk that is illegal. If the obstruction is authorized by the municipality and is properly constructed so as not to interfere with the public use of the street or sidewalk, it is not to be regarded as a nuisance. But it is indispensible that the street or sidewalk be left free for the public use and in as safe a condition as it would have been without such obstruction.</p> <p>2. Same—Awnings Over Sidewalk. Where the defendants under the authority of a city ordinance erect an awning over the sidewalk in front of their premises, and such awning does not interfere with public travel, an adjoining property owner is not entitled to an injunction restraining the maintenance of such awning. 3. Same—Interference With View. As to any interruption of complainant’s facilities of outlook in the sense of view merely, it is well settled that injunction will not lie as mere interference with prospect is not an incident of the estate, and there is no remedy in the absence of a contract.</p> <p>4. Streets—Manner of Use—City Council May Prescribe. The manner of the use of the streets is for the city council to prescribe, and where such city council by a general ordinance authorizes the erection of awnings over a public sidewalk no complaint can he made.</p> <p>5. City Council—Powers to Pass Ordinance as to Erection of Awning. The city council under the power to “regulate the use of streets for signs, awnings, awning posts,” etc., is authorized to permit the erection of awnings over sidewalks.</p>

<p>1. “Flag Law” Unconstitutionai. The Illinois statute known as the “Flag Law” prohibiting the use of the national flag for advertising purposes is in derogation of the constitution and void as not being within the police power of the legislature and coming within the category of laws known as class legislation.</p> <p>2. Same. Relator, agent of the Anheuser-Busch Brewing Ass’n, was arrested for selling beer contained in bottles and barrels upon which appeared the trade mark of the Brewing Ass’n, consisting of a device in which stars and stripes appeared on a shield in connection with an eagle, alleged to be in violation of the Illinois flag law prohibiting the use of the national flag or emblem for advertising purposes. Upon habeas corpus, held that the law was unconstitutional and that relator should be discharged from arrest.</p>

<p>1. Petition fob Leave to File an Information in the Nature of Quo Warranto—Practice, Where State’s Attorney Refuses to Allow the Use of His Name in Presenting the Petition. Where under the statute of quo warranto it is provided .that a petition for leave to file an information in the nature of a quo warranto in the name of the people may be filed by the state’s attorney of his own accord or at the instance of an individual relator, and the state’s attorney refuses to allow the use of his name in presenting such petition, held that so far as the private rights of the relator are concerned, the use of the name of the state’s attorney is a mere matter of form, a mere fiction which has come down from the English law, and that the proceeding should he dismissed so far as the rights of the people are concerned, but retaining the jurisdiction so far as the rights of the relators are concerned.</p> <p>2. Quo Waebanto Peopeb Remedy to Test Legality oe School Distbict. Quo warranto is the proper proceeding to test the legality of a school district and the right of the alleged board of education thereof to levy taxes.'</p>

<p>Motion to dissolve injunction in two cases. Gen. No. 43,416 and Gen. No. 43,415. Heard respectively before Judge Murray F. Tuley and Judge Thomas A. Moran.</p>

Motion of complainant to strike supplemental answer from files and motion of defendant to dissolve or modify the injunction. Heard before Judge Murray F. Tuley.

<p>1. Trust Deed—Assignee of—Subject to Equities. The assignee of a mortgage or trust deed takes it subject to existing equities between mortgagor and mortgagee. (See note.—Ed.)</p> <p>2. Same—Notice to Grantor. The assignee of a mortgage or trust deed in order to protect his rights against secret equities between mortgagor and mortgagee, must give notice to the grantor in such mortgage. (See note.—Ed.)</p> <p>3. Same—Payments to Trustee in Trust Deed. Payments made to trustee by the mortgagor before maturity without notice from the holder of the note secured by such trust deed, will be applied as a credit on such note, in a bill to foreclose the trust deed.</p> <p>4. Debtor and Creditor—Creating Relation Between Trustee and Mortgagor by Recitals in Receipt for Money. A trustee by accepting payments on account of an indebtedness secured by a trust deed cannot create the relation of debtor and creditor between himself and the mortgagor by recitals in receipts given on account of such indebtedness.</p> <p>5.. Notice of Transfer of Note Secured by Trust Deed—Sufficiency of. A general notice from the holder of a note secured by a trust deed to pay a negotiable interest coupon to him is not a sufficient notice that he is also the holder of the principal note.</p> <p>G. Masters in Chancery—Successors of—Appointment of Special Commissioner. The court has the power to appoint a special commissioner to complete the unfinished business of a master in chancery where the term of office of such master has expired even though his successor has been appointed.1 </p>

<p>Appeal from the Circuit Court of Cook County.</p>

<p>(Opinion of May 19, 1905.)</p> <p>1. Telephone Companiesi—Duty to Furnish Modern Equipment at Rates Fixed by Ordinance. Where a telephone company accepts an ordinance under which it is permitted to use the streets of the city for the purpose of placing its poles and wires, and it is provided in such ordinance that the company shall not increase the rates then established for telephone service, the company is bound to furnish telephones of modern construction and appliances at the ordinance rate.</p> <p>2. Duress —■ Public-Service Corporation — Payment of Excess Charges to—Right to Recover Back. Where a subscriber demands a telephone and he cannot procure the same without yielding to an extortionate demand and signing a contract to pay an excessive rate, and he does so yield, this constitutes duress and the excess may be recovered back in an action for money had and received.</p> <p>'3. Duress—Common-Law Doctrine—Growth of. The doctrine of duress at common law was confined originally to duress of the person, but subsequently it was extended to include duress- of goods. Under the modern decisions it includes “moral duress” or duress of business necessities.</p> <p>4. Same—What Constitutes—Existence of Alternative or Other Legal Remedy as Bar to Recovery of Money Paid. Where a party for a number of years uses an inferior class of telephone service which is usable to the extent that it is possible to carry on a conversation subject to interruption, contracts for a higher grade of service at a rate in excess of that fixed in a city ordinance, the payment of such excess cannot be considered as involuntary where the party paying was not forced to have the better service and it could have obtained relief by applying for an injunction.</p> <p>"5. Duress—Only Exists Where There is no Alternative. Where a party is called upon to submit to an illegal demand and he • has no other alternative but to submit, such payment cannot be considered as voluntary and he may recover back such amount.</p> <p>fi. Same—Necessity of Protest. Where a payment is made under duress, and a protest would be unavailing, no protest need be made. But if a protest would be availing to stop the payment of the money, a protest would be necessary.</p> <p>(Opinion of August 24, 1906.)</p> <p>1. Telephone Companies—Rates fob Telephone Service—Right to Increase on Account of Improved Apparatus. Where a city-grants to a telephone company by ordinance the right to transact its business in the city and. it is provided in such ordinance that the telephone company shall not increase to its present or future subscribers the rates then established for telephone service, such company has no right to thereafter increase its rates even though it furnishes an improved service not known at the time of the adoption of the ordinance.</p> <p>2. Same—Duty to Furnish Improvements. Under such ordinance the telephone company cannot be required to adopt improvements in its servide or equipment, but if it does so it is restricted to the rate provided for in its ordinance.</p> <p>3. Duress—What Constitutes—Payments Made to Public-Service Corporation in Excess of Legal Rate. The plaintiff for a number of years made payments for an improved telephone service in excess of the rates fixed by ordinance. The plaintiff had previously had in his place of business an inferior type of telephone service at the ordinance rate. Both parties believed at the time of making the contract for such excess payment that the telephone company had the right to demand the excess payment. Nothing was said about the relative rights, of the parties at the time the contract was made. The defendant was first approached by the plaintiff and the matter was: concluded without protest on the part of the plaintiff and without any threat on the part of defendant to disturb the existing telephone service then in operation in plaintiff’s place of business. The evidence did not disclose an immediate necessity for the improved telephone service as the inferior service was usable and practically efficient. Held that such payments were voluntary and could not be recovered back.</p> <p>4. Duress Defined. Duress exists when one by the unlawful act of another is induced to make a contract or perform some act under circumstances which deprive him of the exercise of free will.</p> <p>5. Same-^Consciousness of Illegality of Demand. To constitute an involuntary payment both parties must have a consciousness that the demand is unlawful at the time of such payment.</p> <p>6. Same—Exercise of Free Will. And where plaintiff in making excess payments was under no immediate necessity of doing so and where nothing was said or done which deprived it of the exercise of its free will, the payments will be considered as voluntary.</p> <p>7. Same—Successive Payments. Where payments are made successively for nearly five years without any discussion or contention of any sort, and without any protest, or suggestion that the amount was excessive, no recovery can be had.</p> <p>8. Same—When Payments Abe Voluntary—Knowledge of Rights. Money voluntarily paid, without protest, and where there is not present the element of duress, cannot be recovered back, where it appears that the parties either knew or were chargeable with knowledge of their rights, and of the unlawful exaction at the time of payment. This is the rule in tax, water and gas cases without exception.</p> <p>3. Same—Ignorance of Legal Rights—Alternate Remedy. Where plaintiff mistook his legal rights under an ordinance, and in ignorance of the law affecting the contract, freely, tamely and unprotestingly entered into it, and in faith of it uncomplainingly and voluntarily continued for nearly five years to pay the excessive contract price, a condition which could have been relieved by protest or by the aid of an injunction, no recovery could be had.</p> <p>10. Municipal Ordinances—Ignorance of, One of Law. An ordinance granting to a telephone company the right to use the streets of the city,—in which ordinance it is provided that the telephone company shall not increase its established rates for telephone service—has the force of law within the limits of the municipality, and ignorance of the provisions of such ordinance is ignorance of law and not of fact.</p> <p>11. Maxims—Ex .¿Equo et Bono. The maxim of ex wquo et tono is one of equity.</p> <p>12. Same—Recovery of Money Which Defendant in Equity and Good Conscience Ought not to Retain. A recovery can not be had in an action at law for money paid merely because the defendant ex wquo et tono ought not to retain it. But this maxim may receive an additional exemplification in equity.</p>

<p>1. Corporate Naifes—Right oe One Illinois Corporation to Enjoin the Recording oe a Certificate of Incorporation óe Another Illinois Corporation of a Similar Name. Certain of the defendants procured from the secretary of state a final certificate of incorporation of “The Elgin National Watch Case Company, of Elgin, Illinois,” but before this certificate was recorded in the office of the recorder of deeds of Kane County, Illinois, as required by statute, “The Elgin National Watch Company” and the “Elgin Watch Case Company” obtained a temporary injunction restraining the recording of the certificate of organization of “The Elgin National Watch Case Company, of Elgin, Illinois.” Upon motion of defendants to dissolve the injunction theretofore granted, held that the names were so-similar that confusion would result, and that the defendants, should be enjoined from procuring to be recorded in the recorder’s office the certificate of incorporation of “The Elgin National Watch Case Company of Elgin, Illinois.”</p> <p>2. Parties—-Unorganized Corporation. Where the certificate of final organization of a corporation has not been filed in the recorder’s office as required by statute, it is not necessary to-make such corporation a party defendant in a bill to enjoin the recording of the certificate, as by so doing the complainant would admit that it was an existing corporation.</p> <p>3. Power of Illinois Corporation to Prevent the Organization of Another Illinois Corporation of a Similar Name. The legislature has by implication provided that an Illinois corporation may, by proper legal proceedings, prevent the organization of any other corporation under the laws of this state, with the same or a similar corporate name, when the consent thereto of such existing corporation has not been obtained.</p> <p>4. Trade Names—Protection of. When parties have, by their mode of doing business, and by the quality of their products, and, by selling and delivering to the public articles as valuable as represented, bult up under a chosen name a reputation which is of great value, they should be protected in the use of that name; and the protection of the public in preventing any other persons from assuming a like or similar name is at the same time a protection of the parties.</p> <p>5. Tbade Names—Unfair Tbade. The words “Elgin” and “National” and “Watch” are general or geographical words or names that can not he appropriated to the exclusion of others; hut they may he so used when taken together or in connection with certain manufactured articles as to create and establish a special signification, and in the use of those words, or any or either of them, in such connection, and with such special signification, the parties entitled thereto should receive protection from the courts.</p>