Volume 3 — Illinois Circuit Court Reports

Bill, amended and supplemental and cross-bill. The facts are stated in the opinion and in the opinion of the supreme court in the same case, 224 111. 9. Heard before Judge Thomas G. Windes.

<p>1. Public Parks — Open on Sunday Where Used as Exposition — ■</p> <p>Right oe Taxpayer. Where a public park is used as an exposition by authority of the legislature a taxpayer is not entitled to have the exposition remain open on Sunday for the reason that it is located in a public park. The remedy of such taxpayer is to challenge the power of the legislature to surrender the use of a public park for exposition purposes.</p> <p>2. Taxpayer — Right to Prevent by Injunction Misappropriation</p> <p>or Diversion oe Public Property in Absence oe Special Damage. A citizen or taxpayer who suffers no special damage or injury different from the public at large by reason of the misappropriation or diversion of public property cannot maintain a bill in his own name for an injunction to prevent the same.</p> <p>Such a bill must be brought by the attorney general.</p> <p>3. Same — Right to Prevent Diversion or Misappropriation oe Pub-</p> <p>lic Property by Injunction — Laches. Where a public park is appropriated by the legislature for the purposes of an exposition a taxpayer cannot question the right of the legislature so Í</p> <p>to do where action is not taken until a large sum of money has been expended on such exposition. The complainant is barred by laches.</p> <p>4. Public Property — Cession to United States. Where public park</p> <p>property is ceded by the state to a commission appointed by the United States for the purpose of an exposition it is doubtful whether the courts of the state have power to interfere with such property.</p> <p>5. United States — Officers oe — Power oe State Over. A state</p> <p>court has no power to interfere with officers of the United States in the discharge of duties imposed upon them by act of congress.</p> <p>6. Equity — Relief in — Complainant Must Do Equity. Where the United States donates a sum of money to an exposition on the condition that such exposition remain closed on Sunday, a taxpayer cannot compel the keeping open of such exposition on Sunday without offering to return the amount of the donation. A court of conscience should also be a court of honor.</p> <p>7. Riparian Rights — Building Piers and Wharves. The right to build wharves and piers in navigable waters as appurtenant or incident to the ownership of the adjoining land, is a riparian right.</p> <p>8. Same — Dependent Upon Title to Bank. Riparian rights are dependent upon the title to the bank and not upon the title to the bed of the lake or stream in front of the bank.</p> <p>9. Same — Where There is Ebb and Flow of Tide. There is no dif- - ference between the rights of a riparian proprietor’s bordering a navigable stream whether the waters be inland rivers or have the ebb and flow of the tide.</p> <p>10. Lake Michigan — Riparian Rights in. Riparian proprietors on Lake Michigan have the right to build piers, wharves and landings for their own exclusive use and enjoyment1 </p> <p>11. Wharves — Whether Public When Built in Connection With Public Property. Where wharves are built by the public authorities in connection with public property or as an extension of a public street, they do not thus become public wharves open to indiscriminate use.</p> <p>12. Waters — Whether Riparian Owner Can Extend His Structure Beyond the Point of Navigation. A riparian or littoral owner must not extend his pier or wharf beyond the line of navigability. He is not required, however, to stop at the exact point where navigation begins, but as such structures are permissible only in aid of navigation they may extend as far as necessary for the purposes intended.1</p> <p>13. Public Nuisance — Right of Individuals to Redress. Individuals who sustain no private injury are not entitled to redress against a public nuisance. Only the attorney general can take action.</p> <p>, 14. Monopolies — What Constitutes. It does not constitute a monopoly for an owner of a private wharf to give an individual an exclusive right to run a line of steamers from or to such wharf.</p> <p>15. Wharves — Whether Public or Private. Wharves, docks or landing places may be private or public, depending upon the purpose for which the same are built, the uses to which applied, the place where located and the nature and character of the structure.</p> <p>16. Same — Whether Affected With Public Use. When a private</p> <p>wharf is thrown open to the use of the public it becomes affected with a public use and must be open to all upon the same terms and conditions.</p> <p>17. Same — Discrimination Against Particular Ports and Vessels</p> <p>in Use of. Where the owner of a wharf permits its use to one steamship line generally but denies the use of such wharf to vessels from particular ports, such discrimination is illegal and tends to obstruct commerce. There can be no discrimination between different members of the public or between vessels from different ports.</p> <p>18. Public Use — Right to Abandon. Where a pier has for a long</p> <p>time been used as a public landing place the owner of the pier has a right to discontinue its use for that purpose. It does not follow that because the public was permitted to use it that the public has the right to use it forever.</p>

Circuit court of Cook county. Foreclosure bill filed by bondholders and trustee, to foreclose the property of the corporation. Intervening petition by stockholder, making the same defense as the company. Exceptions to master’s report overruled. Order for decree. Heard before Judge Thomas G-.. Windes.

<p>1. Pharmacy Act, Penalties Thereunder, How Recoverable, Civil</p> <p>Suit. Where the legislature declared in the penal clause of the Pharmacy Act that “all suits for the recovery of the several penalties . . . shall he prosecuted in the name of the people ... in any court having jurisdiction,” it intended that a civil suit in debt might be commenced before a justice of the peace or in a civil court of record.</p> <p>2. Same — Criminal Prosecution. The words in the penal clause of</p> <p>the Pharmacy Act “and it shall be the duty of the state’s attorney ... to prosecute all persons violating . . . this act upon proper complaint being made” indicate that the legislature be-' sides civil suits contemplated that criminal prosecutions might he instituted for the recovery of the penalties prescribed by the' act.</p> <p>3. Same — Violations of as Misdemeanors. As in Illinois the doing</p> <p>of the act prohibited by statute is a misdemeanor when not amounting to a felony, violations of the Pharmacy Act are misdemeanors.</p> <p>4. Statutes — Penal—Construction of — Remedy Provided Therein.</p> <p>Where a statute gives a penalty and prescribes a form of action, in which the remedy may be had, that form of action must be followed and no other.</p> <p>5. Criminal Court — Prosecutions Therein — Procedure. The only</p> <p>method of prosecution known to Illinois law in the criminal court is by indictment.</p> <p>6. Pharmacy Act — Construction of — Manner of Criminally Pros-</p> <p>ecuting Violations of — Policy of Legislature. Construing the Pharmacy Act in conjunction with other statutes and in the light of the established policy of the legislature to provide other tribunals than the criminal court for the collection and enforcement of fines and penalties, it is apparent that a violation of the Pharmacy Act is not indictable although the penalties provided therein may be recovered by the state’s attorney by a criminal complaint before a justice of the peace.</p>

<p>1. Marriage Settlement — Real Estate — Limitations to Heirs of Body of Contracting Parties, Etc. — Effect in Equity. It is a fundamental principal of the law of marriage settlements that if the real estate of the husband or wife is limited to the heirs of the body or to the issue of the contracting parties, or either of them, or to the issue of their body, or to the issue and their heirs, equity will not. take the words in their legal sense, but will limit the estate to the parents for life and the children will take at the death of their parent or parents as purchasers.</p> <p>2. Same — Marriage settlements in which the provision for the issue of the marriage, heirs of the body or the issue of the contracting parties, or either of them, or to the issue and their heirs is wanting, form no exception to the general rule and the parents can defeat the estate of the children.</p> <p>3. Rule in Shelley’s Case — Defined. When a person takes an estate of freehold legally or equitably under a deed, will or other writing and in the same instrument, there is a limitation by way of remainder, either with or without the interposition of another estate of an interest of the same legal or equitable quality to the heir or heirs of his body as a class of persons to take the succession from generation to generation the limitation to the heirs entitles the ancestor to the whole estate.</p> <p>4. Trusts — Real Estate — Declaration to A’s Heirs Subject to Occupancy During Joint Life of A and Wife and the Survivob — Effect. Where a trust in land is declared for the use and occupation of A and his wife during their natural lives; for the wife during life if she survived A; for A and his heirs in case he survived; and after her death, in case she survived A, to such persons as he should by will appoint, A takes a fee simple estate encumbered only by the life estate of his wife.</p>

Indictment for violation of act of April 9, 1875. Heard upon motion to quash before Judges W. K. McAllister and S. M. Moore. Opinion by Judge McAllister. The facts are stated in the opinion of the court.

<p>1. Constitutional Law — Act of Apbil 19, 1875, Unconstitutional. The act of April 19, 1875, entitled “An act to prevent frauds upon travelers and owner or owners or any railroad, steamboat, or other conveyance for the transportation of passengers” comes within the section of the Constitution (Art. IV) which declares that the General Assembly shall not pass any special law granting to any corporation, association, or individual, any special or exclusive privilege, immunity or franchise whatever, and is unconstitutional and void.</p> <p>2. Act of April 19, 1875 — Construction of. Even under the act of April 19, 1875, a duly authorized ticket agent may sell tickets not only of the company from which he holds the authority but those of any railroad or -steamboat owner.</p> <p>3. Habeas Corpus. Petitioners were arrested under an indictment for selling railroad tickets, not being authorized to do so by the railroad whose tickets they sold. Held, that this was no violation of the act of April 19, 1875.</p>

Petition for a writ of habeas corpus. Heard before Judge Edward P. Dunne. The facts are stated’in the opinion of the court.

<p>Motion to dissolve or modify an injunction. Heard before Judges Tuley, Horton, Burroughs and Tuthill.</p>

<p>1. Conflict of Jurisdiction between Courts of Concurrent Jurisdiction. In the case of conflicting jurisdiction, the court which first takes cognizance of the controversy is entitled to retain jurisdiction to the end of the litigation and incidentally to take possession of or control over the subject matter of the suit. The court first invoked will not be interferred with by another court while the jurisdiction is retained.</p> <p>2. Lis Pendens — All Indispensable .Parties. A Us pendens to be of controlling force in the question of jurisdiction would necessarily have to cover all indispensable parties.</p> <p>3. Conflict of ' Jurisdiction — Comity—Court First Acquiring Should Retain. Where a bill for a receiver was filed and thereafter other parties having notice of the pendency of such bill file a bill in another court on the following day for the appointment of a receiver of the same property and the defendant consents to the appointment of- a receiver in the second suit, comity does not require that the court should relinquish jurisdiction in the first proceeding where it was evident that the second bill was filed for the purpose of forestalling any action in the first proceeding.</p>

<p>1. Habeas Corpus — Fugitive From Justice — Extradition—Inquiry as to Commission of Crime. It is not permissible on the trial of the habeas corpus case brought on behalf of an alleged fugitive from justice to consider whether or not a crime has in fact been committed in the state asking the return of the prisoner.</p> <p>.. Same — Good Faith of Prosecution. It is not proper in a habeas corpus proceedings brought to try the legality of restraint of a person alleged to be a fugitive from justice to inquire into the good faith of the prosecution in the state asking his return.</p> <p>3. Same — Duty of Governor — Sufficiency of Extradition Papers —Province of Courts. If the indictment or affidavit upon which ■ the requisition is based does not show upon its face that a crime is charged against the alleged fugitive the executive should not act thereon, and if he1 do so improvidently or mistakenly, it is unquestionably within the power of the court to consider the affidavit and warrant submitted to the executive and pass judicially upon their sufficiency and if insufficient order the release of the prisoner.</p> <p>4. Criminal Law — Obtaining Money Under False Pretences — Nature of Offense. The offense of “obtaining money under false pretenses” was not a common law offense but is of purely statutory origin.</p> <p>5. Same — Allegations Necessary to Charge Offense. To hold a person charged with having committed the ordinary statutory crime of “obtaining money under false pretenses” as a fugitive from justice there must be allegations showing that there was a fraudulent statement of existing facts, a knowledge on the part of the defendant of their false and fraudulent character, an intent to deceive and defraud, 'and an obtaining of the money and the property of another thereby; the mere allegation that the defendant has committed against the law of the demanding state the crime of obtaining money by false pretenses is insufficient.</p> <p>6. Practice — Amending Insufficient Habeas Corpus Return to Show Alleged Fugitive Actually Charged with Crime in Demanding State. Where the return to a writ of habeas corpus to obtain the discharge of a person arrested as a fugitive from justice, is insufficient to show that he is charged with a crime in the demanding state the court will allow the defendants in the habeas corpus proceedings to amend their r.eturn to show that he is, if such be the fact.</p> <p>7. Habeas Corpus — Fugitive from Justice — Governor's Warrant— What Shows Regular Affidavit in Demanding State. A recital in the governor’s warrant that there was produced and laid before him a copy of a warrant and affidavit made by and, before a properly empowered officer in and of the State of North Carolina in accordance with the laws thereof is sufficient to show that the affidavit" upon which the North Carolina warrant was issued was made by a duly authorized official in the course of a judicial proceeding.</p>

<p>1. Fibe Insurance — Foreign Insurance Corporations — Effect of Surplus Line Act of 1903. The law of 1903, in relation to the placing of surplus line insurance with foreign insurance corporations not licensed to do business in the state, not merely permits the agent to act when the conditions provided by the law exist and procure a policy from the unauthorized company but sanctions the issuance of the policy in this state by which the transaction is completed. Thus, all claims arising out of such a policy are enforcible in this state not only by one but by all the parties to it.</p> <p>2. Principal and Agent — Duty of Agent in Regard to Money Received on Behalf of Principal Which Has Arisen out of Illegal Transactions. An agent who has received money on behalf of his principal cannot defend against an action brought by the principal to recover such money by setting up that the transaction out of which it arose was illegal.</p> <p>3. Maxims — In Pari Delicto — Meaning. The maxim in pari delicto does not mean that parties cannot recover who are both guilty but such as are guilty in equal degree.</p>

<p>Habeas corpus on relation of George Frank, Louis Stein and Robert C. Davis. Superior Court of Cook County.</p> <p>Heard before Judge Theodore Brentano, April 15, 1899. The facts are stated in the opinion.</p>

Bill to cancel certain contracts, dissolve partnership and for the appointment of a receiver. Gen. No. 222,960. Heard before Judge Murray F. Tuley. The facts are stated in the: opinion.

<p>Where a statute requires a notice to be published three weeks in a newspaper, it should be published in every issue of the paper during the three weeks; if a daily, once a day; if a weekly, once a week; and that a publication once a week in a daily paper is not a publication of three weeks, but only three days’ publication.</p>

Proceeding under the road law of 1845 for the location of a road on a petition presented to the county commissioners. Heard in the circuit court before Judge Turner on appeal. The facts are stated in the opinion.

<p>Partition Fences — Duty to Repair — Liability for Cattle Breaking Through. Where the plaintiff’s cattle were in defendant’s field with the consent of the latter and they passed upon the defendant’s premises through a breach in the partition fence made by the cattle of defendant, the defendant has no right to take úp and hold plaintiff’s cattle, than if such breach had been made by himself.</p>

<p>1. Equity Jurisdiction — Adequate Remedy at Law. Where a, complainant alleges that at the time of filing the bill, and prior thereto, the full title in fee simple to the tract of land described in the bill was vested in him, and prays for a conveyance of the land by the defendant to. him, a court of equity has no jurisdiction of the subject matter, and can grant him no relief, as he has an adequate remedy at law.</p> <p>2. Allegations of Bill — Possession—Remedy at Law. In such case, where there is no allegation in the bill that the complainant was in possession of the land, of which he seeks to compel a conveyance, at the time of filing his bill, the inference must be that he was not in possession; and not being in possession, his remedy to recover the possession was complete at law, by an action of ejectment,</p> <p>3. Lost Deed — Subsequent Conveyance — Equity Jurisdiction. The fact that a widow receives a deed of premises to herself to-supply the place of a prior deed executed to her husband in his lifetime, and alleged to be lost, constitutes no such equity as to give chancery jurisdiction to compel the widow to convey to the complainant.</p>

<p>1. Forcible Entry and Detainer — Suit on Bond — Damages for Time Premises Unlawfully Withheld — Rental Value — ■ Value of use and Occupation. It is competent in a suit on a bond given by a defendant in an appeal in a forcible entry and detainer proceeding, to show the value of the use and occupation of the premises for the time the defendant unlawfully withheld them. “Rental value” and the “value of the use and occupation” are synonomous.</p> <p>2. Trial — Evidence Elicited on Cross-Examination — Estoppel to Complain. A party is not in a position to complain of facts brought out on cross-examination of his opponent’s witness.</p> <p>3. Former Adjudication — Splitting Causes of Action — Suits fob Damages for Unlawful Detention of Premises — When Recovery in One Suit Only Allowable. Where a plaintiff institutes two suits for damages which have accrued to him by the unlawful detention of his premises by the defendant and in one of them seeks to recover for part of the time they have been detained, and in the other for the remainder of the time, a recovery in one will preclude a recovery in the other. The law does not allow a splitting of the cause of action in such a manner.</p>

Action for value of services rendered by plaintiff to defendant’s minor son. Heard before Judge John G. Rogers The facts are stated in the opinion.

<p>Motion to stay further proceedings in action at law on account of the pendency of bankruptcy proceedings. Heard before Judge Lambert Tree.</p>

<p>Demurrer to cross-bill. Heard before Judge George Dupuy. Gen. No. 259,201. The facts are stated in the opinion.</p>

<p>Action of replevin. Heard before Judge McCulloch. The facts are stated in the opinion of the court. . !</p>

<p>Petition for habeas corpus. The facts are stated in the opinion of the court. Heard before Judge John G-. Rogers.</p>

<p>'Petition for habeas corpus. Heard before Judge Murray F. Tuley. The facts are stated in the opinion.</p>

<p>1. Executors and Administrators — Investment of 'Funds — Pay- ■ ment of Legacies — Power of County Court. The county court has the same power to compel an executor to pay a legacy or invest funds belonging to a legatee so that they may draw interest, that a court of chancery has.</p> <p>2. Same — Derivation of Powers of County Court. The county court derives its powers in this regard from that article of the Illinois constitution which provides that the "jurisdiction of said court shall extend to all probate matters.”</p> <p>3. Executors and Administrators — How Accountable for Interest. Prima facie an administrator or executor is not chargeable with interest for the first year, and thereafter he is :prima facie chargeable with interest on all money in his hands not necessary to pay claims and expenses. He is in either case chargeable with interest on money of the estate which he himself uses or interest which he actually does receive.</p> <p>4. Administration of Estates — General Specific Legacies — Payment of Interest Thereon. A specific legacy draws interest from the death of the testator; a general from the time it is payable except when a father bequeaths it to to his infant child ■ and there is no other means to support it, or where a wife receives It in lieu of dower or a creditor receives it in payment of an antecedent debt. In these latter cases, the general legacy draws interest from the death of the testator.</p> <p>5. Administration of Estates — Interest on General Legacies —Where Applied. If an executor invests a general legacy and. receives interest thereon, the interest, except in the three cases before mentioned, goes into the residuum of the estate and not to the general legatee.</p> <p>6. Administration of Estates — Statute of Wills — Payment of Legacies- — Bond. Under the Statute of Wills of Illinois, a specific legacy is deliverable at any time, a general, one year from the death of the testator if the estate is free from debt or there is an abundance of funds to pay the debts and legacies upon the legatee executing a sufficient bond with security. The amount of the bond lies in the sound discretion of the court in. view of all the circumstances of each particular case.</p>

<p>Bankruptcy — "Mutual Debts and Credits” — Unmatched Debts —Right to Set Off — Jurisdiction of Equity. Where an insurance company becomes insolvent and goes into bankruptcy owing an assured money on a loss, the latter has the right to call on a court of equity to set off against his claim, money which he has borrowed of the insurance company but is not yet due. Such a case is one of “mutual debts and credits” under section 20 of the bankruptcy act of 1867.</p>

<p>jl. Elections — Jurisdiction of Law and Chancery Courts in Election Matters. If a public officer charged with the administration of an election law refuses to obey its mandate, the party injured is not without remedy, not in a court of chancery, however, but in a court of law.</p> <p>2. Public Policy Act — Jurisdiction of Circuit Court in Matters ■ Arising Thereunder — Decision of the Election Board — Effect of Section 10 and 16 of Australian Ballot Law. A decision of the board of election commissioners, that a question is not a proper one to be submitted to the electorate in accordance iwith the provisions of the public policy act, is not a finality. Section 18 of the Australian ballot act, incorporated into the public policy act by reference merely refers to the manner of printing the ballots and section 10 of the same law gives finality only to the election commissioner’s decisions in regard to nomination papers and certificates.</p> <p>3. Mandamus — Existence of Another Adequate Remedy. The fact that the petitioners may have an adequate remedy by certiorari is no defense to an action of mandamus as in Illinois the existence of another remedy is never a defense to the action of mandamus, if mandamus is proper.</p> <p>■4. Public Policy Act — Duty of Election Commissioners. If the requisite number of petitioners present a “question of public policy” under the public policy act, it is clearly the duty of the election commissioners to put that question on the ballot. If the question is not one of public policy the commissioners have the right to keep it off.</p> <p>•5. Same — What is not a Question of Public Policy. A question is not one of public policy which embodies a plan of action in violation of law or against the enforcement of the law.</p> <p>fi. Same — Refusal of Election Board to Put Question of Public Policy on Ballot — Remedy by Mandamus. Assuming that the board has a certain amount of discretion in determining the question of whether a proper petition has been presented to them, nevertheless they are guilty, in legal contemplation, of an abuse of that discretion, if in fact they do deny a proper petition, and mandamus will lie in such a case to compel them to submit the question.</p> <p>7. Same — The Question in This Cash The question: “Shall all places where liquor is sold or given away in this city upon Sunday be closed upon that day?” is a proper one to be submitted to the voters, under the public policy act, as it cannot by any reasonable construction be held to embody a plan of action in violation of law as contended.</p>

Motion, appellants (respondents below) for a supersedeas. Heard before Judge Orrin N. Carter, of the Supreme Court in chambers at Chicago. The facts are stated in the opinion.

<p>1. Public Policy Act — Refusal op Election Commissioners to Comely With Petition Thereunder — Remedy by Mandamus— Jurisdiction op Circuit Court. If the election commissioners -arbitrarily in disregard of' the provisions of the public policy law refuse to place a proper question signed by the requisite number of electors, upon the ballot, the circuit court has jurisdiction to compel them by mandamus to discharge their duty in that respect.</p> <p>2. Statutes — Construction op, Where Meaning Clear — Duty op Court. It is an elementary rule of construction to first look at the language of an enactment, and if, from the words used, the meaning is clear and plain, it is the duty of "the court to declare the meaning of the law to be as the words indicate. In such a case, there is strictly no need for construction.</p> <p>3. Public Policy Act — Number op Propositions to be Submitted— Order op Precedence. The public policy law provides that but three questions may be submitted at any one election. Any number of petitions may be filed with the board of election commissioners, but only the first three in order of their filing can be submitted to the electors.</p> <p>4. Public Policy Act — Appearance op More Than One Question oñ any one Petition. Under the public policy statute, while three questions may be submitted at one election, but one question can appear on any one petition. If a petition contains more than one question to be submitted, the whole is a nullity.</p>

Bill for injunction to restrain an unlawful combination in restraint of trade. Circuit court of Cook County, Gen. No. 196,935. Heard on bill and affidavits in support thereof, and demurrer to bill, before Judge Edward F. Dunne. The facts are stated in the opinion.

Petititin of guardian of' a minor child to have child bom of a slave marriage declared the only heir of the decedent and that the administrator be compelled to pay to the petitioner certain funds in his hands. Heard before Judge Thomas B. Bradwell. The facts are stated in the opinion.

Petition to have slave marriage declared valid and to recognize petitioners as lawful heirs of decedent. Heard before Judge Thomas B. Bradwell. The facts are stated in the opinion.

Action by plaintiff to recover for services rendered the decedent. Heard before Judge Erastus S. Williams and a jury. The deceased, Bernard McGuire, was a cooper who lived in Chicago. The plaintiff lived with him for about seven years, supposing she was his wife, and performed all the duties of a wife, they having agreed to live together as such. There was no ceremony performed by any minister or officer, and no marriage license issued.

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

<p>Parties — Purchasers at Foreclosure Sale. The court has no power to make the purchaser at a foreclosure sale a party to the record in the supreme court</p>

<p>Appeal from Jackson County, No. 56.</p>

<p>Appeal from Randolph County, No. 82.</p>

Petition to sell real estate to pay debts. Heard before Judge Charles S. Cutting. The facts are stated in the opinion of the court.

<p>Appeal from Hamilton County, No. 83.</p>

<p>1. Corporations — Closing World’s Columbian Exposition on Sunday — Right of Stockholder to Interfere in Management — ■ Bill in Equity. A mere stockholder in the World’s Columbian Exposition cannot maintain a bill in equity to close the fair on Sunday as in the absence of fraud, breach of trust or ultra vires he has no right to interfere in the management of the corporation.</p> <p>.2. Same — Contract with Congress — Effect of New Condttions. Although the directors of the World’s Columbian Exposition accepted a gift from congress on condition that the fair should remain closed on Sunday, yet they have the right to rescind this contract as congress subsequently attached other conditions.</p> <p>3. Constitutional Law — Practice of Religion without Discrimination — Sunday Closing. Article 2 of the Illinois Constitution guaranteeing the free exercise of religion prevents Sunday closing based on a religious principle.</p> <p>4. Sunday — Closing Fair on that Day — Section 317 of Criminal Code — Disturbing Peace on Sunday. It can not be assumed without a showing that the opening of the fair on Sunday will disturb “the peace and good order of society” and thus violate section 317 of the Criminal Code.</p> <p>5. Equity — When United States not Necessary Party to Bill. No property rights of the United States being involved in this controversy, it is not a necessary party to the bill.</p> <p>6. Equity — Diversion of Public Property — Right of Taxpayer to Maintain Bill. A taxpayer has the right to maintain a bill in equity to enjoin a private corporaton from diverting public property from its dedicated use where such diversion affects his pecuniary interest as a stockholder.</p> <p>Y. Parks — Regulation of — Closing on Sunday — Burden of Proof — • Issuing Injunction. In view of the statute declaring that Jackson Park shall be a public park free to all persons forever, the burden is on the persons claiming that a rule closing it on Sundays is reasonable, and where this is not done, a complainant is entitled on the face of his bill to a preliminary injunction restraining the closing.</p>

<p>Executors and Administrators — Appointment of Foreign Consul as Administrator — Consul’s Privilege — Nature of Waiver. An application of a British consul to be appointed administrator of a deceased Englishman should be denied whether he applies as relative, creditor, friend or as consul; even though he agrees to waive his privilege for this, he cannot do it being in his government and not personal to himself.</p>

<p>Executors and Administrators — Englishman Dying in Illinois— Appointment oe Administrator — British Consul — Public Administrator — Illinois Law. When an Englishman dies in Illinois, leaving property and neither relatives nor creditors here, not the British consul, hut the public administrator is the proper party to be appointed administrator, because the former is not amenable to the process of the court, and the latter is the one designated under the Illinois laws which alone control; neither Congress nor the English law have anything to do with the matter.</p>

<p>Application for contempt attachment. Heard before Judge Wm. K. McAllister. The facts are stated in the opinion.</p>

Creditor’s bill and cross bill. Motion to appoint receiver. Heard before Judge Murray F. Tuley. The facts are stated in the opinion.

<p>Bail — Admission ito — Power or Court oe Another Circuit — Arrest on Indictment. A court of another circuit than that in which a prisoner has been indicted and is held in custody has no power to admit him to hail.</p>

<p>1. Criminal Carelessness While in Change or Control oe Public Conveyance — Liability oe Ofeicers and Directors of Railroad. Section 49 of the criminal code which makes it an offense for any person having personal management or control of or over any public conveyance used for the common carriage of passengers, to be guilty of gross carelessness or neglect in or in relation to the conduct, management or control of such public conveyance, while being used for the common carriage of passengers, whereby the safety of any person shall be endangered, has no application to persons having the management or control of the business of a railroad, such as the officers and directors.</p> <p>(See note 1, p. 412.)</p> <p>2. Indictment — Misjoinder—Charging Different Defendants in Separate Counts. An indictment against a number of defendants cannot charge part of the defendants in one count and part of them in other counts. Therefore, an indictment which charges the directors of a corporation in some counts and the officers in other counts must be quashed.</p> <p>(See note 2, p. 413.)</p> <p>3. Indictment — Misjoinder of Defendants in Indictment for Neglect of Duty, Not Joint. In indictments for manslaughter and criminal carelessness arising out of an alleged neglect of duty, it is erroneous to join the defendants upon whom the-obligation to perform the alleged duty rests, unless it is shown by a proper and specific averment of fact that such duty-rested on all of the defendants alike. Where the board of ' directors of a corporation were indicted jointly with the officers and the superintendent of a railroad for negligence in the operation of the road, whereby a collision occurred resulting-in the death of a passenger, it was held that as no joint duty was alleged that the misjoinder was fatal.</p> <p>(See note 3, p. 414.)</p> <p>4. Directors of Corporations — Criminal Liability of for Neglect of Duty. The directors of a railroad corporation may be-criminally liable in certain cases of neglect of duty. But they cannot be held criminally liable jointly with the superintendent or general manager of such road who negligently or wilfully give orders which result in a wreck, or with the motor man who negligently or wilfully runs one car into another,, either in obedience to or in direct violation of" those orders.</p> <p>(See note 4, p. 415.)</p> <p>5. Indictment — Duplicity in — Each Count Must Contain Single Issue. An indictment should be certain and specific as to the defendants, the offense, and the manner of its commission, so-that the plea of “not guilty” will raise a single issue upon each count. If more than one issue is raised upon any count by that plea, the count is duplicitous.</p> <p>6. Indictment — Duplicity in — What Constitutes. A count of an indictment for manslaughter against the directors and officers of a railroad- which alleges that a death was caused in the operation of the railroad by a failure to provide safe, proper and sufficient rules for the operation and running of cars and also charges that the death was caused by the establishment and enforcement of unsafe, improper and insufficient rules and regulations, is bad for duplicity.</p> <p>7. Indictment — Allegations of, as to Duty. An indictment based on a neglect to perform a particular duty should allege the. existence of facts from which the law raises the duty, and it is not sufficient to allege that it was the duty to do the things in question.</p> <p>8. Indictment — Based on Failure to Establish Proper and Sufficient Rules for Operation of Railroad — Must Set Out Rules. Where an indictment charges manslaughter on account of a death in a railroad collision, alleged to have been occasioned by providing and enforcing improper, insufficient and unsafe rules, the indictment must allege what rules were violated and the rules must be set out in the indictment.</p> <p>9. Proximate Cause — Causal Connection Between Act and Death. Where it is alleged in an indictment for manslaughter that a collision was occasioned hy neglect to provide and enforce safe and sufficient rules and hy the enforcement of unsafe and insufficient rules, whereby death was caused, the allegations of the indictment must show a causal connection between the act and the death.</p> <p>10. Directors — Criminal Liability of Where no Civil Liability. Directors of a corporation cannot be held criminally liable for negligence in a case where they could not be held civilly liable. The person or persons directly responsible for a death are criminally liable.</p> <p>(See note 6, p. 422.)</p> <p>'ll. Criminal Law — Principal or Master not Criminally Responsible for Negligence of Agent or Servant. A principal or master is not responsible criminally for the negligent acts of his agents or servants.</p> <p>(See note 5, p. 420.)</p> <p>12. Grand Jury — Validity of Where Improperly Served. The fact that the sheriff serves a number of the grand jurors hy mailing a copy of the venire with a return card to himself in which the grand juror acknowledged service, will not invalidate the proceedings of such grand jury where all the jurors were present even though such service was not in accord with the statute.</p> <p>13. Same — Failure to Cermet Selection of Jurors Within Five Days. The failure of the county clerk to certify the names of the grand jurors to the clerk of the court within five days after their selection, as required by the statute, does not invalidate the proceedings of such grand jury, as the provision of the statute is directory only.</p> <p>14. Grand Jury — Necessity of Hearing Evidence on Finding of Second Indictment. Where the grand jury hears evidence in support of an indictment, and thereafter at the request of the prosecutor finds a second indictment against the same person for the same offense, it is not necessary for such grand jury to hear evidence in support of the second indictment. (See note 7, p. 424.)</p> <p>15. Grand Jury — Witness Not Sworn by Foreman — Effect of. Although the statute contemplates that the foreman should swear ail witnesses, a failure to do so in the case of a particular witness, will not invalidate the indictment if there is other sufficient evidence.</p> <p>16. Indictments — Presence of State’s Attorney in Grand Jury Room. The state’s attorney is not authorized to he in the grand jury room during the deliberations of the grand jury. But the state’s attorney may properly be with the grand jury and advise and counsel with them as to their duties, so long ~j he does not prevail upon the grand jury to return an indictment which they would otherwise not have done.</p> <p>17. Grand Jury — Effect of Reoonveninq After Adjournment Without Entry of Reconvening Order — Validity of Indictments. Where a grand jury adjourns for the term sine die, and thereafter reconvenes during the same term without the entry by the court of a reconvening order, and returns indictments, such indictments must be quashed as the grand jury was without authority to act.</p> <p>18. Same — Power of Court to Recall Grand Jury After Adjournment. The court has no power to reassemble the grand jury after it has adjourned for the term, except under the provisions of the statute which provides for a special venire.</p>

Motion to quash attachment writ. Heard before Judge Ben M. Smith. This action was in assumpsit by the plaintiff against her divorced husband to recover on a decree of alimony rendered by the circuit court of Sangamon county. The suit was commenced on October 22, 1907, and on the same date plaintiff sued out an attachment in aid against the defendant as a non-resident, alleging his place of residence to be at Detroit, Michigan.

<p>1. Courts — Jurisdiction of Subject Matter — Consent of Parties. If a court has no jurisdiction of the subject matter of a controversy the consent of the parties can never confer it.</p> <p>2. Venue — Change of — Motion to Continue Cause — Waiver of Irregularities. If a court has jurisdiction of the subject matter of a controversy then all irregularities in the manner of taking a change of venue are waived by a motion either to continue the cause or by setting it down for hearing in the court to which the change has been taken.</p> <p>3. Words and Phrases — "Action.” An action is defined to be the “form of a suit given by law for the recovery of that which is one’s due or it is a legal demand of a man’s right.”</p> <p>4. Venue — Change of — “Crvn, Cause in Law or Equity” — Contested Election. As a contested election case is neither a cause in law or equity the venue act does not authorize the parties thereto to transfer the cause from the court in which it was originally instituted.</p> <p>5. Same — Jurisdiction of Subject Matter — Remanding Cause. As there is then no authority in the statutes for taking a change of venue in a contested election case an order allowing a change is a nullity which confers no jurisdiction of the subject matter on the court to which the order runs and therefore the latter court must remand the cause.</p>

<p>1. Elections — Fraud—Throwing out all Votes Except those Proven Legitimate Outside Record. In an election to remove a county seat, 2820 votes were cast in favor of removal in a precinct in which there were but 453 registered voters, held, that all the votes in the precinct would be thrown out except those proven outside the record, the circumstances of the case rendering it impossible to separate the legal from the illegal votes so as to count in the votes of the 453 legal voters, even though there were no votes cast in the precinct against removal.</p> <p>2. Elections — Voters Naturalized in County Court. Votes cast by persons naturalized in the county court are illegal.</p>

<p>Motion to dismiss writ of error to Jefferson county. No. 46.</p>

<p>When Dismissal op Appeal Will be Set Aside. An order dismissing an appeal for failure to file appeal bond within time fixed by order of court below will be set aside on showing.</p>

<p>Motion to dismiss appeal from White county. No. 165.</p>

<p>When Cause Will not be Remanded.</p>

<p>Bail — Surrender of Principal — Power to Make, Outside of County Where Principal Bound to Appear — Section 14, Div. Ill, of Criminal Code Construed. A surrender to the sheriff of the county where the principal of a bail bond is required to appear made outside of said county is effective to release the sureties on the bond of their liability; for section 14, div. Ill, of the Criminal Code (S. & C. Ann. St., p. 1365) which provides that “the surrender shall he made to the sheriff of the county where the principal is required to appear,” excludes the idea that the surrender must be made within said county.</p>

<p>1. Contempt — Violation of Injunction — - Directors Ordering World’s Columbian Exposition Closed on Sunday. All the directors who voted to keep the World’s Columbian Exposition closed 'on Sunday in spite of an injunction to the contrary are in contempt of court.</p> <p>2. Same — Mitigating Circumstances. A director, who voted in favor of the resolution because the official attorney of the fair told him that through court proceedings the injunction would be modified so that the vote would not result in a violation o£ the injunction, has mitigating circumstances in his favor but is nevertheless in contempt as he took no further steps to see that the injunction was not violated.</p> <p>3. Same — Executive Officers — Advice of Counsel. Executive officers who followed the directions of the board of directors upon being advised by counsel that the injunction had lost its effect will he discharged.</p> <p>4. Same. An executive officer who followed the directions of tne board of directors because he was told to do so is'in contempt.</p>

<p>Bill of Exceptions — Striking from Files. A bill of exceptions will not be stricken from the files even though not filed in time where it was presented to the judge and was not returned in time, and the party used due diligence in trying to obtain it.</p>

Motion to. dissolve temporary injunction. The facts are stated in the opinion of the court. Heard before Judges Edward F. Dunne, Theodore Brentano and James Goggin.

<p>1. Perjury — Indictment—Alleging Substance of False Testimony. In an indictment for perjury it is insufficient to set out the substance of the alleged false testimony.</p> <p>2. Indictment — Certainty of. In criminal pleading the highest degree of certainty is always required.</p> <p>3. Perjury — Indictment Based on False Statement of Witness to Effect that He Did Not Remember. An indictment for perjury can he predicated upon the false statement of a witness that he did not remember a certain fact. The difficulty lies only in the making of the proof.</p> <p>4. Same — Sufficiency of Indictment as to Materiality of Testimony. An indictment for perjury must allege that the alleged false testimony was material to the issue or point in question. It is insufficient to merely allege that it was material.</p> <p>5. Same — Materiality of Testimony as to Effect Produced by Libel. A witness may testify as to the impression produced upon him by a libel and such testimony is material.</p> <p>6. Same — Materiality of Improper Cross Examination. Where a witness is cross-examined with respect to matters not germane to the direct testimony, perjury cannot be assigned on such cross examination.</p>

<p>1. Municipal Corporations — Jurisdiction of City Court over Reform School Located Outside of City Limits. Although the Reform School of Chicago is beyond the city limits, the recorder’s court has jurisdiction as it is a city court and whatever locality the corporation holds in its character of land proprietor and governs by its common council, is within the territorial jurisdiction of that court.</p> <p>2. Statutes, Construction of — Pari Materia. It is a familiar rule of construction that when certain things are specified in a statute and followed by general words as in this case “other writ or process,” nothing will he included under the general words except what belongs to the same class as specified.</p> <p>3. Same — Habeas Corpus — Nature of Writ. The writ of habeas corpus is an original writ and not an auxiliary one, differing in this respect from the writs of ne exeat and injunction. Like the writ of certiorari it is one of right and will never be deemed taken away by implication.</p> <p>4. Reform School Act of 1863 — Jurisdiction of Judge — What Necessary. Under the Reform School act, the judge does not act as a court but as an officer with special and limited jurisdiction, in which, case there is no presumption in favor of jurisdiction but compliance with every provision of the statute is essential to jurisdiction.</p> <p>5. Same — Want of Service — Effect. If the summons provided for by the Reform School act be not served upon the party indicated in the statute, the want of such service defeats the jurisdiction of the officer and renders the commitment void.</p> <p>li 6. Constitutional Law- — State as Parens Patriae — Its Power. The power of the state as parens patriae in a proper case, extends only to the placing of others over the child with the same-limited authority as a parent would ordinarily have.</p> <p>7. Same — Involuntary Servitude — Bill of Rights — Reform School Act. A reform school act, which purports to authorize others • to seize a child and confine him in prison for many years and compel him to labor for their benefit without a regular trial or an accusation of crime against him, deprives the child of his liberty without “due process of law,” and amounts to involuntary servitude not as a punishment for crime.</p>

<p>1. Cabriebs — Excess Baggage — Delay in Delivery — Negligence— Validity of Exemption Clause. Where excess baggage is delayed in transit through the negligence of the carrier the latter is not freed of liability by reason of a stipulation in its contract of carriage to the effect that it is to be released from all liability from loss, injury or detention of the property whether due to the negligence of the carrier or not, such a stipulation being contrary to public policy.</p> <p>2. Same — Objection that Articles not Baggage — Waiver. A carrier, accepting as baggage articles or merchandise not properly having that character with knowledge that they are offered for transportation as baggage, waives any objection on that ground and his liability therefor is the same as that with reference to .baggage in general.</p> <p>8. Same — Damages—Loss of Profits. The ordinary profits of a ’ traveling salesman calling on regular trade are not so speculative as not to be recoverable as damages for detention by a carrier of his sample trunks precluding him from making sales.</p> <p>4. Same — Notice of Contents. The evidence in this case is sufficient to charge the carrier with notice of the contents of plaintiff’s trunks and his use for them so to make it liable for damages resultant upon their detention.</p>

<p>1. Conspiracy — What Constitutes. To constitute! a violation or section 46 of the Criminal Code against conspiracy there must be an intent to “wrongfully and wickedly” injure the business, etc., of another. A fraudulent or malicious intent to injure is not enough. There must also be a purpose to carry into execution such intent. . .</p> <p>2. Indictment — Sufficiency of in Conspiracy. An indictment for conspiracy in the words of the statute is sufficient. But if the facts constituting the conspiracy are alleged, they must show a fraudulent and malicious intent “wrongfully and wickedly” to injure, etc.</p> <p>3. Conspiracy — “Wrongfully and Wickedly” — Meaning of. The words “wrongfully and wickedly” in the conspiracy statute are to be understood as meaning the use of means in themselves “wrongful and wicked,” independently of combination.</p> <p>4. Same. The entering into of an agreement to use “wrongful and wicked” means to injure another does not show an intent to “wrongfully and wickedly” injure within the meaning of the conspiracy statute. There must be a wrongful and wicked intent to injure irrespective of the agreement.</p> <p>6. Criminal Conspiracy — Mlust be Civil Injury. Where the defendants, members of a labor union, cause an employer to discharge a non-union employee, by threats to cause other employees to quit the service of such employer, this does not constitute a criminal conspiracy unless such action was an invasion of the civil rights of the non-union employee.</p> <p>6. Same. In such a case, in the absence of force, falsehood or any other act of itself unlawful, the non-union employee has no cause of action against the members of the union. Allen v. Flood, (1898) App. Cas. 1, followed.</p> <p>7. Actions — Motives. The existence of a bad motive will not convert an act which is not of itself illegal into a civil wrong.</p>

<p>Bbiefs. Extension of time to file.</p>