Volume 2 — Illinois Circuit Court Reports

<p>1. Fbanchise — Defined. A franchise is a particular privilege conferred by grant from the sovereign or government and vested in individuals or a corporation. »</p> <p>2. Taxation — Fbanchises Confessed by Congbess. • Franchises conferred by congress, cannot, without its permission, be taxed by the states.</p> <p>3. Same — Fbanchises—Poweb of Local Assessobs. Where one part of a bridge structure is devoted' to railroad purposes and the other part contains toll wagon ways which are situated upon either side of the railroad tracks and the bridge prop* erty is assessed as a whole by the state board of equalization, the local assessors have no right to levy a tax upon the right to operate the toll wagon ways, as such ways are equally a part of the franchise, which can only be assessed by the state board of equalization.</p> <p>4. Same — Omitted Pbopebty. Nor can such toll wagon ways be assessed as “omitted property” inasmuch as the state board of equalization extended its assessment upon the entire bridge property. Nor is it material that the property should have been separately assessed.</p> <p>5. Same — Sepabate Pbopebty Taxed Undee Genebal Descbiption. Where one general description is used in the taxation of property, the whole is comprehended, even though the object is capable of being separated into separate classes of property, for purposes of taxation. If it is not so separated, the whole is included under a general description.</p> <p>6. Same — Definiteness of Assessment. An assessment as definite as the grant under which the land is held, is sufficient.</p> <p>7. Sanie — Omitted Pbopbbty. To permit the assessment of omitted property, it must he omitted in fact, and an assessment, even though irregular, is sufficient to prevent a re-assessment as omitted property.</p>

<p>1. Specific Performance — Contracts for Personal Services. Specific performance of a contract for personal services cannot be enforced.</p> <p>2. Contracts for Personal ■ Services — Injunction to Restrain Breach of — What Services Are Unique and Extraordinary., A bill filed by an employer against an employee alleging that the defendant is competent, skilled and well versed in the leather goods business and competent to take charge of and become foreman or superintendent of the leather goods department of the complainant and that defendant’s knowledge and skill are peculiar to him, and that complainant cannot find any other person possessing the same peculiar skill and qualifications; that by reason of such qualifications complainant employed defendant as foreman; that defendant entered complainant’s employ, became acquainted with the names of the persons from whom complainant purchased raw materials, the prices paid for same and the cost of production of the articles manufactured; ■ and that defendant has left said employment and is engaging in business with others in competition with complainant, does not state a case for an injunction.</p> <p>3. Contracts for Personal Services — Injunction. Will Not Lie to Restrain Breach of. The rule that injunction will lie to restrain the breach of a contract for personal services does not apply to contracts between master and servant. It is restricted • to cases of actors, players and the like where the services are unique and extraordinary.</p> <p>4. Same. There is no difference in principle between compelling a party to work for one man in particular and enjoining him from working for others.</p> <p>5. Constitutional Law — Slavery—Involuntary Servitude — What Is. To compel a servant or employee to work for a particular person is against the spirit of the thirteenth amendment to the federal constitution which prohibits slavery and involuntary servitude. “Involuntarj servitude” means servitude outside of slavery. No man can become the servant of another except by contract.</p> <p><5. Pleading — Conclusions in. An allegation that the services of an employee are special and peculiar states a mere conclusion.</p>

<p>Indictment for receiving stolen property. Motion to vacate judgment entered upon plea of guilty. Heard before Judge Jesse Holdom.</p>

<p>Appeal from appellate court, second district, affirming a decree of the circuit court of Lee county.</p>

<p>1. Mandamus to Review Action of Boabd of Dibeotobs of Voluntabv Association. Where a party has a legal remedy and has not been disturbed in any of his rights as a member of the hoard of trade except the right to prosecute a member for the non-payment of a claim, but has been deprived of that right by a decision of the board of directors, that they would not entertain it for reasons deemed by them, in the exercise of their discretion and judgment, to be good and sufficient, it was held, that mandamus,would not lie.</p> <p>2. Same — Pasty Defendant. Where it was sought to affect the rights of a party and to compel his trial, upon a petition of mandamus to which he was no party, and of which he has had no notice, it was held, that under sec. 7 of the (mandamus act where a party has an interest in the subject-matter he could be made a party defendant.</p> <p>3. Same — Adequate Remedy at Law as Defense. An adequate remedy at law is a defense to an application for a writ of mandamus where such writ would not afford a proper and sufficient remedy.</p> <p>4. Same — What is a Sufficient Remedy. In an application for a writ of mandamus to compel a board of trade to suspend one of its members for failure to pay a debt due to the relator it was held that the writ did not afford' the relator an adequate remedy as the suspension of the member would not necessarily cause the debt to be paid.</p>

<p>Appeal — Application fob Leave to Become Plaintiff in Eksoe. Application to permit other persons against whom judgment for taxes was rendered to become parties plaintiff in error denied on the ground that the judgment against each separate tract of land is separate and distinct.</p>

<p>Continuance. Application for continuance by appellee so .that the record may be reformed as to the form of the judgment denied where appellant withdraws assignment of error.</p>

<p>Injunction. Motion to withdraw injunction bond on file.</p>

<p>Appeal. Motion to dismiss founded upon a clerical error of clerk denied.</p>

<p>Appeal. Motion to dismiss for want of sufficient bond denied and amendment permitted.</p>

The note on which judgment was confessed was given by-defendant to plaintiff’s agent, and it was orally agreed that it should be held by him until the happening of a contingent event. Before the happening of the contingency Farwell & Co. confessed judgment. Defendant seeks to vacate judgment, stay execution, and for leave to plead.

Assumpsit. Plaintiff sues on a note, to secure which certificate of stock of Fidelity Bank & Globe Insurance Company were deposited as collateral, declaration, special and common counts, copy of note sued upon and affidavit of claim. Defendants filed a plea of non assumpsit in substance and form the same as that filed in Chisholm et al. v. McGinnis, Chicago Law J., vol. 1, No. 1, p. 56,1 and notice of set-off; to which plaintiff demurred.

<p>Affidavit of Merits — Stipulation to Vacate Judgment — Right of Court to Impose Conditions. .Where it was stipulated and agreed “by counsel and by the court” that judgment might be entered against the defendants for $408.15, and that if the defendants should by affidavit show a good defense to the suit, upon the merits, the judgment should be set aside; and subsequently the affidavit of one of the defendants was filed, showing a meritorious defense to all of the note upon which the judgment had been rendered, except $81.27, and a motion was made to vacate the judgment, but the court refused to grant the motion unless the defendants would actually pay plaintiff the amount conceded to be due by the affidavit; it was held to be error.</p>

<p>Appeal from the county court of Kankakee county: Hon. C. R. Storr, presiding. Opinion filed January 21, 1878.</p>

<p>Appeal. Appeal will not be dismissed because bill of exceptions is stricken out of record.</p>

<p>Rehearing. Correction of expressions in opinion.</p>

<p>Briefs. Motion for extension of time to file.</p>

<p>Jurisdiction. Appeal dismissed for want of jurisdiction.</p>

<p>Briefs. Motion for extension of time to file.</p>

<p>Jurisdiction. Appeal dismissed for want of jurisdiction.</p>

<p>Mandamus. Leave to file petition for. If respondent demurs to petition no process is necessary. Where only private interests are involved case will not be advanced.</p>

<p>Motion for restraining order. Heard before Farwell, C. J. Gen. No. 27,234.</p>

<p>Practice — Application to Withdraw Demurrer and Plead Over in an Action on an Appeal Bond Where no Defense is Shown. Leave will not be granted to withdraw a demurrer and plead over, unless there is an actual defense shown by affidavit setting up the extrinsic facts relied upon.</p>

<p>Practice. 1. Leave to reply double — Replication de injuria, when allowable. 2. Notice of motion — When necessary.</p>

<p>Practice — Trover. No affidavit of merits required in action of trover.</p>

<p>Bah,. Where a claim on a hail bond is filed against the estate of the surety in the bond, the evidence must show that the bond required by the statute was taken according to every requirement of the law, or it will be illegal and void, and where the evidence shows affirmatively that it was not so taken such claim will not be allowed.</p>

<p>Appeal Bond. Motion to file a new bond in forcible detainer suit to cover accruing rents and profits.</p>

<p>1. Justice of the Peace — Jurisdiction. A justice court is one of limited and inferior jurisdiction. Its acts are null and void where it assumes jurisdiction not given by statute. Such jurisdiction must affirmatively appear.</p> <p>2. Same — Jurisdiction in Action of Trespass. Where the entry on the justice’s docket showed a judgment in favor of plaintiff in an action “to recover damages for trespass” it was held that this was insufficient as the entry did not indicate whether the trespass was against the person or against property.</p>

<p>1. Bankruptcy — Jurisdiction of Circuit Court to Review Order of District Court. Under sec. 4986 of the Rev. Stat. U. S., the circuit court has jurisdiction to review all cases and questions arising under the bankruptcy law where the law has not otherwise provided for an appeal.</p> <p>2. Same — Setting Aside Sale After Confirmation — Notice to Purchaser. It is error to set aside an order confirming an assignee’s sale upon the ex parte application of the assignee without giving the purchaser notice and hearing.</p> <p>3. Assignee’s Sale — When Purchase Money is Payable. After the sale of the property of a bankrupt the purchaser is not bound to pay the purchase money instanter. The purchaser is entitled to ascertain how and to what extent the property could be delivered to him, and whether or not the order of the court could be complied with before he can be required to pay the-purchase money.</p> <p>4. Purchaser — Real Bidder Bound. Where a bid is made at an assignee’s sale by an irresponsible bidder on behalf of his. principal, the principal will he considered as the real party in interest and will be bound by the bid.</p> <p>5. Assignee in Bankruptcy — Duty to Notify Purchaser Before Cancelling Bid. An assignee in bankruptcy who cancels a bid made at an assignee’s sale and resells the property without notifying the first purchaser, does not act in good faith.</p> <p>6. Reversal of Decree — Effect on Sale. Where a decree under which a judicial sale has taken place is reversed on appeal the validity of the sale is not impaired. But where the validity of the sale is the subject of controversy a different rule-applies.</p>

Creditors bills, cross-bill, and intervening petitions. Motion for leave to file amended and supplemental bill. Heard before Judge Murray P. Tuley.

<p>1. Garnishment — Time of Trial of Garnishment Issue.</p> <p>2. Same. Method of trying right to credits garnisheed.</p>

Appeal by defendant from a judgment entered against him .as garnishee before Justice of the Peace George H. Woods, ■for a debt of $200 that one Charles Hartwell claimed was due him from A. D. Little, an employee of defendant. The evidence disclosed that defendant paid Little’s monthly salary in advance and at the time the writ was served nothing was ■owing.

<p>Motion, for injunction. Heard before Judge Murray P. Tuley.</p>

<p>1. Pabol Evidence — Written Instruments. While parol evidence is not admissible to contradict, change or modify a written instrument, the court may admit parol evidence to show the conditions environing the parties prior and at the time of the execution of the instrument, for the purpose of arriving at the intention of the parties.</p> <p>2. Deposit of Securities — Transfer to Bona Fide Holders. Where certain securities were transferred to an insurance company in exchange for certain shares of its stock, under a contract' providing that such securities were to be returned to the depositor in case the insurance company failed to comply with certain provisions of the contract, it was held that the securities were sold and not loaned, and that as against a bona fide holder the depositor had no title.</p> <p>3. Contract — Illegal Purpose — Transfer of Securities for. Where certain securities were loaned to an insurance company under a contract, for the purpose of enabling it to deposit the same with the state, it was held that the contract was fraudulent and unlawful and the parties to it could not receive any countenance or assistance with respect thereto, from a court of equity.</p>

<p>Motion to vacate order for injunction. Heard before Puterbaugh, J. The- facts are stated in the opinion.</p>

<p>Motion to release garnishee in attachment proceedings by entry into a recognizance. Heard before Judge John Gibbons.</p>

<p>Bill for an injunction.</p>

<p>1. Taxation op National Bank Stock. The statute provides that the stockholders in every bank located in Illinois shall be assessed and taxed on the value of their shares of stock therein; that this tax shall be levied according to “valuation.” These provisions are in harmony with the constitution inasmuch as an error in the views different men may take of values does not show want of “uniformity.”</p> <p>2. County Board — Complaint. The county hoard, acting as a board of equalization, may review and correct an assessment on shares of stock as shall appear to be just, upon complaint to the board, provided the person assessed, or his agent shall he notified of such complaint, if a resident of the county.</p> <p>3. Jurisdiction — Notice. The board of review cannot review an assessment without special notice to the persons affected ' thereby.</p> <p>4. Notice — How and to Whom it May be Given. It is error in the state board of equalization to make and correct an assessment without special notice to the person affected thereby. Notice is sufficient when actually brought home to such party. Appearance before the board to resist the review and correction of an assessment is a waiver of the right to notice. Notice to. an agent is sufficient.</p> <p>5. Tenant — Notice Served Upon. A notice served upon the tenant is not a sufficient service upon the landlord.</p> <p>6. Director — Sufficient Notice to. It is a general rule that notice to an individual director, who has no duty to perform in relation to the subject-matter of the notice, is not a notice to the corporation.</p> <p>7. Agent — Notice to Bind Principal. It is a fundamental principle that n'otice served on the agent to bind the principal must be served whilst the agent is acting within the scope of his agency.</p> <p>8. Bank — Agent of Stockholders. The statute makes the hank the agent of the stockholder, for some purposes connected with the taxation of the shares of stock. The hank acts as quasi trustee in managing the business of the shareholders. Notice to the bank is therefore notice to the stockholders.</p> <p>9. Complaint — Notification—Sufficiency of. Any one may complain that another is assessed too low, hut such complaint cannot be acted upon until the party assessed, or his agent, shall be notified of such complaint. The complaint should contain some traversable fact, and not be vague and general, so that the party appearing may be informed of the matter which he is called to meet.</p> <p>10. Equity — Jurisdiction to Restrain Collection oe Takes. A court of equity will not restrain the collection of taxes except in cases where the property assessed is exempt, or the tax is unauthorized or unless there is fraud.</p> <p>11. Technical Objections. Mere technical objections not affecting the justice of the tax itself, should not be regarded;</p>

<p>Petition for writ of habeas corpus. Cause heard on writ issued by Judge Willard M. McEwen, with Judge John Gibbons sitting as associate.</p>

<p>Bill for'injunction. Heard before Judge Willard M. Mc-Ewen.</p>

Indictment for larceny of water from the city. Motion for a new trial. Heard before Judge Murray F. Tuley, July 10, 1901, criminal court of Cook county. The facts are stated in the opinion)

<p>1. Arrest Without Warrant. To justify an arrest without a warrant the offense must be committed in the presence of the officer making the arrest.</p> <p>25. Personal Liberty — Defined. Personal liberty consists of freedom from physical and personal restraint; the right to the pursuit of happiness; to go where one chooses and to pursue such lawful occupations as may seem suitable. In its broad sense it includes freedom from unlawful arrest and restraint and from unlawful searches and seizures.</p> <p>3. Arrest — Search for Deadly Weapon. As incidental to an arrest an officer may search the person arrested for a deadly weapon, but not otherwise.</p>

Bill to-foreclose mortgage. Cross-bill of judgment of judgment creditor to subject funds in hands of receiver to payment of judgment. Order dismissing cross-bill. Motion to set aside same. Heard before Judge Jesse Holdom.

<p>1. Sentence — Suspension oe. There is no power in the court either under the statute or at common law to suspend the sentence of a prisoner found guilty hy a jury.</p> <p>2. Same — Common Law Rule — Reprieves. At common law the judges were empowered in capital cases to grant temporary reprieves but this power was only exercised in extreme cases.</p> <p>3. Same — Review of Action of Circuit Judge in Suspending Sentence by Another Circuit Judge. Where the trial judge suspends the sentence of a prisoner found guilty, this action is not subject to review hy another circuit judge and the latter has no power to again sentence the prisoner.</p>

<p>1. Contempt — Failure to Obey Subpoena Duces Tecum — Materiality oe Evidence. In an application for attachment for failure to-comply with an order to produce papers it is proper for the court to look into the nature of the evidence proposed, to see whether or not if produced they would be admissible in evidence; this can be usually determined on a rule to show cause.</p> <p>2. Subpoena Duces Tecum-t-When Insufficient. “Papers which were presented to the governor” is too indefinite a phrase upon which to base an action for refusing to obey a subpoena duces tecum.</p> <p>3. Criminal Libel — Privileged Communication — Petition fob Repbieve. A petition to the governor for a reprieve is a proceeding “in the regular course of justice” and as such is privileged if the matter contained therein is pertinent, and the governor cannot be compelled to produce the petition in order that an indictment for libel may be based thereon. Such a communication. is also privileged because it is a confidential communication sent to the governor of a state in the course of a duty he is called upon to perform as an officer, and is inadmissible to form the basis of an indictment unless there is a showing that there was libelous matter maliciously inserted and not pertinent to the petition.</p>

<p>Motion for leave to introduce further evidence in a case that had been reversed by the supreme court.</p>

<p>1. RaelboadI Aid Subscription — Validation of Void Subscription by Legislature. Where a township by resolution voted to subscribe forty thousand dollars more to the capital stock of a railroad corporation than it was authorized by law to do; though such a subscription be illegal, yet it can be made valid by a subsequent act of the legislature. •</p> <p>2. Same — Vote of People Not Necessary. The legislature can authorize such a subscription without a vote of the people to be effected thereby.</p> <p>3. Statutes — Constitutionality—Duty of Courts. A court ought not to declare a statute unconstitutional unless the opposition between it and the constitution is clear.</p> <p>4. Injunction — Doubtful Case. An injunction should not be issued in a doubtful case.</p>

Bill filed by the Cleveland Rolling MiR Company against Henry Crawford, H. H. Porter and the Chicago & Great Southern Railway Company for an accounting. Demurrer to same heard before Judge Murray F. Tuley. The facts are .stated in the opinion.

<p>Bill for specific performance. The facts are stated in the opinion.</p>

<p>Criminal Law — Right to Waive Jury Trial. Where a defendant in a criminal case voluntarily waived his right to a trial by jury and requested the court to hear all questions of law and fact without the intervention of a jury, which waiver was duly entered of record, and the cause was thereupon tried by the court and the defendant found guilty, the waiver is binding on the defendant, and the judgment of the court cannot be set aside.</p>

<p>Indictment for felony. Petition for habeas corpus. Heard before Judge McAllister. The facts are stated in the opinion.</p>

<p>Petition for habeas corpus. Heard before Judge John Gibbons. The facts are stated in the opinion.</p>

<p>1. Officers — De Pacto — Who Are. An officer de facto is one who has the reputation of being the officer he assumes to be and i yet is not a good officer in point of law.</p> <p>2. Same — Their Acts — When They Can Be Attacked. The official acts of a de facto officer are valid as to third persons who employ him until there has been a judicial determination that his title is bad in law, except in cases where the <Ze facto officer is himself sued for an injury inflicted on a third party, or where the third party knowing of the defective title should employ such an officer for a sinister purpose.</p> <p>3. Sheriffs — Absconding—Effect on Deputies. Where a sheriff absconds with no intention of returning, while the deputy may perform duties as sheriff, yet he does so with many limitations, - e. g. he cannot remove a jailor, because that is a discretion vested in the sheriff himself, and also many remedies given by law against the sheriff and his bondsmen are unavailing against the deputy in such a case.</p> <p>4. Same — Vacancy—Relation of Deputy and Coroner Thereto. Under the law of Illinois when the office of sheriff becomes vacant for any reason, the rights of the deputy are not extended beyond the term of his principal, but the coroner becomes the successor of the sheriff until the vacancy is filled by an election as required by law.</p> <p>5. Same — Succession of Coroner to Office of — Judicial Notice. When the occasion arises for the coroner to assume the sheriff’s office, it takes no judicial proceeding to determine his right. It is a question of fact and if the office actually becomes vacant, and the coroner’s right to the office is interfered with, he is entitled to the summary process of the courts, which always take judicial notice of their own officers.</p> <p>6. Same — Removal From County — Vacancy—Construction of Statute in Regard Thereto. The statute which provides “If any officer of a county shall remove from and permanently reside out of the same, his office shall be deemed vacant * * * ’’ means that the office of any county officer becomes vacant whenever he leaves the county with no present intent of returning, and it does not have to be shown that he has actually taken up a permanent residence somewhere else. Such a removal is equivalent to a voluntary resignation.</p> <p>7. Imprisonment — Right to Hold Prisoners Where Sheriff Has Absconded. The coroner and not the deputy sheriff is the person whose duty it is by the law of Illinois to hold a prisoner, where the sheriff has absconded.</p> <p>8. Habeas Corpus — Practice—Case Where Respondent Not Entitled to Hold Prisoner But Some Other Person Is.' A prisoner while entitled to habeas corpus under the Illinois statute when he is held by an officer not entitled to do so will not be discharged when this fact is shown but will be turned over to " the proper officer; so in the present case the prisoner will be taken out of the hands of the respondent, a deputy sheriff, whose principal has absconded, ana put into the hands of the coroner.</p>

<p>Motion for an injunction. Heard before Judge M. F. Tuley. The facts are stated in the opinion.</p>

Petition for mandamus. Motions of defendants to strike out certain portions thereof. Motion of relators to strike motions to strike from files. The portions of the petition to which the motions to strike were addressed appear in italics in the statement of facts. Heard before Judge Axel Chytraus.

Petition for mandamus. The petition is set out in haec verba in People ex rel. v. Dunne, supra, in the decision of Judge Chytraus on the motions of respondents to strike out certain portions of the petition.

Petitions for mandamus, forty-five in number, to compel the-closing of thirty-one saloons and fourteen theaters which were-alleged to be violating the Sunday closing law. Each petition was directed against a particular saloon or theater. The-cases were heard before Judges Julian W. Mack, Lockwood Honoré and George A. Carpenter.

<p>Bill for injunction. Heard before Judge Puterbaugh. The facts are stated in the opinion.</p>

<p>Petition for habeas corpus. Heard before Judge McAllister. The facts are stated in the opinion.</p>

<p>1. Criminal Code — Construed As An Entirety. The criminal code must he construed as an entire enactment. Amendments thereto must he read as if they constituted a part of the original enactment.</p> <p>2. Vagrancy Act of 1877 — Constitutionality of — Right of Trial By Jury Under. The vagrancy act of 1877 is not unconstitutional as depriving a defendant of the right of trial by jury. The sections in relation to vagrancy being a part of the criminal code must he construed in connection with the other portions of such code and inasmuch as a jury trial is provided for in other parts of such code a defendant charged with vagrancy is entitled to a jury trial.</p>

<p>1. Criminal Statutes — Construction of. Criminal statutes must be strictly construed in favor of an accused.</p> <p>2. Trial by Jury — Waiver of. — A trial in a felony case by a jury of less than twelve jurors even with the express consent of the prisoner, would be void. In trials for misdemeanors the rule is otherwise.</p> <p>3. Trial by Jury — Constitution of 1870 — Construction of as Applied to New Offenses. The provision of the constitution of 1870 to the effect that the right to trial by jury “as heretofore enjoyed" shall remain inviolate, covers every new definition of the same class of crime as to which the right of jury trial was before enjoyed.</p> <p>4. Vagrancy Act — Constitutionality of — Denial of Trial by Jury. The vagrancy act of 1877 (section 271) is unconstitutional and void inasmuch as it deprives an accused of the right of trial by jury.</p> <p>4. Statutory Construction — Statute Directing Manner of Procedure. If an affirmative statute which is introductive of. a new law, directs a thing to be done in a certain manner that thing cannot be done in any other manner, even though there be no negative words.</p> <p>5. Same — Mode of Procedure Rendering Law Unconstitutional— Adoption of New Mode. If in a statutory proceeding the legislature has prescribed a mode of making it effectual, which is unconstitutional the courts have no authority to reject that mode and adopt a different one.</p> <p>■6. Vagrancy Act — Punishment Under — Effect of Unconstitutional Amendment. Section 271 of the vagrancy act of 1877 being unconstitutional, the original section remains in force. The only punishment that can be imposed therefore is a fine of $20. '</p>

<p>Bill for divorce and cross-bill. Heard before Judge Henry Y. Freeman. The facts are stated in the opinion.</p>

<p>Bill for an injunction. Heard "before Judge Jesse-Holdom.</p>

Bill and amended bill. Cross-bill and bill of review. Heard ■before Judge Murray F. Tuley. The facts are stated in the -opinion.

<p>1. Corporations — Whether Stock Full Paid. Where half of the capital stock of a corporation is issued in payment for the right to use a patented process for the manufacture of which the corporation was formed, ■ it was held that in the absence of fraud the stock must be considered as full paid even though the patented process was of an uncertain value.</p> <p>2. Same. The fact that part of the shares of stock of a corporation taken in exchange for the right to use a patented process, were distributed among promoters as a bonus, does not show that there was a fraudulent overvaluation of the patented process.</p> <p>3. Directors — Fraud of — Personal Profit in Relation to Corporate Transactions. Where a director of a corporation receives; a number of the shares of the capital stock of the corporation; from the person to whom the same were issued in exchange-for certain patent rights, it was held that such shares were: the property of the corporation and the director must account for their value.</p> <p>4. Director — Dealing with Corporate Property fob His Own Benefit. While a director of a corporation is not a technical trustee, his relation to the corporation is a fiduciary one, and he cannot deal with the corporate property for his own benefit, or use it for his individual purpose.</p> <p>5. Salaries of Corporate Officers — When Illegal. Where a salary is voted to a corporate officer by his procurement, or where his vote is necessary to pass the resolution the action is void and such officer can be compelled to refund. (See note 3.)</p>

<p>Motion to quash indictment. The facts are stated in the ■opinion.</p>

Bill for foreclosure of a mortgage and the appointment of a receiver. Heard before Judge C. B. Smith. Decided March, 1879. The facts are stated in the opinion.

<p>1. Deed — Construction of — Intent of Grantor Carried Out.. Under a deed to A. of “one-half * * * of the premises and * * * such * * * further interest, if any, in the remaining half of said premises as she * * * as widow * * * would be entitled to under the law of Illinois if her husband had died seized of an unincumbered title in fee simple to said ' premises,” there being no issue of A. and her husband, A. is entitled to dower in “the remaining one-half,” and not to one-half of the one-half in fee simple and dower in the remaining one-quarter, as the intent of the grantor was that her interest in the remaining one-half should be the same as if her husband had deed seized in fee simple of the entire premises.</p> <p>2. Charitable Use — What is. A bequest of an estate to an executor to give to such charitable and religious purposes as he shall see fit, is a bequest for a charitable use within the meaning of the Statute of Elizabeth, and valid.</p> <p>3. Charitable use — Death of Trustee — When Court Will not Supervise. Where an estate is left to an executor for such char- ■ itable purposes as he may deem fit; should the executor die without exercising his discretion, the court will not undertake the supervision of the trust, but will allow the estate' to go to the heirs of the donor.</p>

<p>Demurrer to declaration. Heard before Judge Murray F. Tuley. The facts are stated in the opinion.</p>

Criminal court of Cook county. Action of debt to recover penalties accruing for violation of sections 192 and 193 of railroad and warehouse act. Heard upon demurrers to special pleas before Judge Edward F. Dunne.

<p>Bill for a mandatory injunction. Heard before Judge Oliver H. Horton.</p>

Indictment for manslaughter. Upon trial of case before a jury upon motion to exclude introduction of ordinances upon which indictment was based. Verdict directed for defendant. Heard before Judge E. it. B. Kimbrough in circuit court of Vermilion county.

Motion to dissolve injunction restraining defendants from voting stock of the Illinois Central Railroad at the annual stockholders’ meeting. Heard before Judge Farlin Q. Ball.. Opinion rendered Feb. 20, 1908. ■ •

<p>1. Servio® by Publication — Equivalent to Personal Service — ■ Whether Defendant in Divorce Proceedings Bound by Decree. Where the defendant in a divorce proceeding is served hy publication, and receives the notice of publication by mail, he has had his day in court, and is bound by the decree of the court.</p> <p>2. Divorce — Obtained by Non-Resident — Right of Defendant to Set Asm® by Bill of Review Where Court Imposed Upon. Where a person obtains a divorce and the court is made to believe that such person is a resident of Illinois the defendant is permitted on the ground of public interest to file a bill of review and have the decree vacated.</p> <p>3. Domicile — What Constitutes — Intent. The question of what constitutes the domicile of a person is largely a question of intention.</p> <p>4. Same — Shown to Exist is Presumed to Continue. Where a particular domicile is shown to exist it is presumed to continue unless changed by clear and satisfactory evidence.</p> <p>5. Same. Evidence reviewed as to whether party had changed her domicile.</p>

<p>1. Constitutional Law — Class Legislation — Validity or Revenue Law Assessing Property or Private Bankers. That provision of the revenue law which provides for the assessment of the property of private bankers as a class and prescribes a different rule from that prescribed for listing the property of other citizens, is not so clearly and palpably repugnant to the constitution as to justify the court in declaring - it invalid.</p> <p>2. Taxation — Whether Banker Must Make Return as to Moneys on Deposit. A banker is not required to make return to the taxing authorities of the moneys of his depositors. The provision of the revenue law which requires the making of a return as to “money on hand” means the money of the banker and not of the depositor.</p> <p>S. Double Taxation — Presumption as to. The revenue law will be so construed as to not impose double taxation- on any species of property.</p> <p>4. Taxation — Credits in Hands of Banker; Where a banker converts the deposits of his customers into promissory notes or bills receivable, such credits are taxable in the hands of the banker even though the deposits as such were exempt.</p> <p>5. Same — Equity of; Perfect equality or singleness of taxation in the strictest sense is an impossibility. All that can be done is to approximate as near as can be to equality of taxation.</p> <p>6. Same — Moneys Due to Banks from Other Banks — Whether Subject to Taxation. Where part of the bonds of a banking firm are placed on deposit with other banks, such funds cannot be considered the funds of the depositors of the depositing ' bank but as credits of such depositing bank which are subject to taxation in its hands.</p> <p>7. Same — Government Bonds Held as Temporary Investment. Whether government bonds which are not held as a permanent investment are exempt from taxation — quaere.</p> <p>S. Same — Jurisdiction of Court of Equity to Restrain Collection of Illegal Tax. When an illegal tax is a mere personal charge against the party assessed there is no ground of equity jurisdiction as the remedy at law is adequate.</p> <p>9. Same — In Case of Real Estate. Where an illegal tax is assessed against real estate, a court of equity takes jurisdiction to remove a cloud from the title.</p> <p>10. Same — When Equity Should Not Interfere. Inasmuch as the . law gives a party an ample remedy to recover back the amount of an illegal tax and interest, equity should not interfere by injunction.</p> <p>11. Taxation — Overvaluation of Property — Decision of County Board — Power of Court. Where property was overvalued and application was made to the county board, the decision of such board which was vested with power to review assessments, was final and conclusive. Courts are not invested with power to make valuations or assessments.</p> <p>12. Taxation of Exempt Property — Power of Court of Equity to Restrain — Necessity of Applying to Statutory Board for Relief. When property exempt from taxation is assessed, equity has jurisdiction to afford preventive relief and the owner is not bound to apply to the statutory board for relief but may wait until an attempt is made to collect the tax and then apply to a court of equity for relief.</p> <p>13. Same — Effect of Application to Statutory Board on Right to Apply to Court of Equity. Where a party does apply to a statutory board for relief against an assessment on exempt property, he cannot thereafter apply to a court of equity for relief.</p>

<p>1. Easements — Creation by Plat. An easement may be created by a plat or subdivision duly acknowledged and recorded expressly or impliedly showing its existence.</p> <p>2. Same — Equitable—Subsequent Purchaser’s — Notice. An amenity in favor of each lot bordering on a private park, to' compel other owners to share in the expense of ornamenting the park is in the nature of an equitable easement and is binding on a purchaser of one of the said lots, with notice.</p> <p>8. Real Estate — Right of Owner — Placing ¡Restrictions on Land— Province of Equity. The law recognizes the right of an owner of .land to impair its usefulness or to make it tributary to another piece of land and such a servitude when created is en-forcible in equity.</p> <p>4. Real Estate — Right of owner to Create Restraints' — Limitation of Right. The only limitation to the right of an owner of realty to put restraints upon the land is that such restraints shall not be contrary to public policy.</p> <p>5. Real Estate — Burdens Thereon — Expense of Maintaining Park. The right to have land contribute to the expense of keeping up a private park, which is also for the benefit of the land contributing is not a burden on land against public policy.</p> <p>6. Real Estate — Charge on Land — Liability of Purchaser. A purchaser of land charged with its pro rata share of .the expense of maintaining a park does not assume any liability for charges incurred prior to his purchase as such a liability does not pass to subsequent purchasers.</p> <p>7. Real Estate — Liability in Nature of a Lien — When not Created. A liability in the nature of a lien, to attach to the land until paid for, must be created by clear and explicit language.</p> <p>8. Real Estate — Imposing Obligation on — Necessity- of Notice to Owner. Even though a charge in the nature of a lien could be imposed by a majority of a meeting of owners called for that purpose, in the absence of notice to him, an owner who failed to attend could have no obligation placed on him or his land.</p> <p>9. Real Estate — Charge or Obligation to Contribute to Maintenance of Private Park — How Enforced. Any owner of land charged with the expense of contributing to the maintenance of a private park, once a valid assessment for that purpose has been made, must pay his share or he can be barred from the privilege of the park or his land might be sold through a proceeding in equity.</p>

<p>Bill for separate maintenance by wife, cross-bill by husband for divorce.</p>

In the criminal court of Cook county. Action of debt to recover a penalty for a violation of a city ordinance. Heard before Judge Edward P. Dunne, March, 1893.

<p>Garnishee summons on judgment. Heard upon trial before Judge Reeves in the circuit court of McLean county,. February term, 1880.</p>

<p>1. Equity — Jurisdiction—Prevention of Damage to Public— Proper Party Complainant. Equity has jurisdiction to prevent by injunction, at the suit of the state’s attorney on behalf of the people the delivery by the cleric of the circuit court, of books upon which assessment for the current year is to be made, to rival sets of claimants to the assessor’s offices of Chicago, because of the irreparable damage to the public which would necessarily result therefrom. ,</p> <p>■2. Statutes — Constitutionality—Embracing Two Subjects. A statute does not embrace two subjects simply because one section relates to the manner of levying assessments and the other to the term of office of assessors.</p> <p>3. Same — Constitutionality — Changing Tenure of Office. Where there is no constitutional;, provision in' regard to the tenure in office of an officer, the legislature can extend or shorten such tenure as it may see fit.</p>

<p>l; Corporations — Where Same Person is President of Two Corporations — Notice as President of One Chargeable to Other Corporation. Where a person is president of two corporations having dealings with each other, both corporations are chargeable with whatever knowledge such individual receives as president of either corporation.</p> <p>2. Collateral Securities — Sale of — When Set Aside. Where a pretended sale is made of collateral securities for the purpose of avoiding the defense of usury, the purchaser of such collateral with notice of the facts stands in the same situation as his vendor and cannot be regarded as a purchaser for value.</p> <p>8. Collateral Securities — Sale of Set Aside — Conditions. Where a sale of collaterial securities is set aside because not bona fide the complainant will be required to pay all the loans secured by the collateral with legal interest.</p> <p>4. Corporations — Power to Guarantee — Commercial Papers. A corporation is not empowered to guarantee commercial paper of another corporation.</p> <p>5. Corporations — Refund of Consideration Paid for Unauthorized Guaranty. Where a corporation guarantees the commercial paper of another corporation and such guaranty is ultra vires, it will be required to account for the consideration received for such guaranty.</p> <p>6. Commercial Paper — Rights of Transferee Where Loans Usurious. Where notes are transferred with notice of the fact that the loans evidenced by the notes are usurious, such transferee takes the notes subject to the equities attaching to such notes in the hands of the former holder</p>

On demurrer to amended fifth and sixth additional counts. First class.- Heard before Judge Foster. The facts are stated in the opinion.

<p>1. Municipal Court Act — Jurisdiction Over Actions Brought on Contract, for Personal Injuries. Under section 2 of the Mu- * nicipal Court Act giving jurisdiction to the municipal court in “all actions on contracts, express or implied,” held, there being nothing in the Municipal Court Act to show that the legislature used these words in any other than their common legal accepted sense, that the municipal court has jurisdiction over actions brought on contract for personal injuries.</p> <p>2. Constitutional Law — Class Legislation. The provision of the Municipal Court Act giving jurisdiction to the municipal court over actions on contracts express or implied, when construed as giving jurisdiction over actions for personal injuries based on contract relations, is constitutional, and is not class legislation.</p> <p>3. Actions fob Personal Injuries — Jurisdiction of Municipal Court of Chicago. Plaintiff brought an action of assumpsit, setting up in the declaration that the plaintiff became a passenger on one of the street cars of the defendant, and further setting up an implied contract to safely carry the plaintiff, and the breach of such contract on the part of the defendant hy negligently managing another car on another line so that it collided with the car upon which the plaintiff was riding, whereby the plaintiff was injured. Upon general and special demurrers to the declaration, held that the municipal court of Chicago had jurisdiction.</p>