the contract which he did with Dupee and Chumasero, I am not now prepared to say that he acted with the intent to defraud Mr. Couch or to aid the other defendants to defraud either Couch or his creditors. Equity imputes good faith rather than bad faith. Fraud must not only be alleged but it must be proven as against the defendant Rice. As to the defendants Dupee and Chumasero, I do not deem it necessary at this time to express any opinion as to whether the proofs sustain or fail to sustain the charges of fraud and fraudulent conspiracy set out in the bills of complaint. Nor is it necessary to now decide whether the evidence shows them to be in possession of the property upon the express trusts of the agreement alleged to have been made with Couch, or as trustees ex maleficio by reason of an alleged undue influence and control over James Couch, or by reason of having used the alleged agreement to buy in and hold the property as a means to carry out their preconceived intention to obtain the legal title and defraud both Couch and his creditors as alleged in Couch's bill of complaint. I deem is sufficient to say that in my opinion the evidence tends strongly to prove that at the time when Dupee and Chumasero conceived and had partly consummated their scheme of having a chattel mortgage sale made of the furniture and buying it in, in their own name and for their own use and benefit, and of having an agreement or understanding with Rice to the effect that he, Rice, should furnish a part of the purchase money and have an interest therein, that the same when purchased should remain in use in the hotel for the period of the lease obtained or about to be obtained by Rice, they, Dupee and Chumasero, to receive one half the net profits of the hotel during such lease-they occupied such fiduciary relations towards Couch, and had acquired such influence over him by reason of such relations that equity will impress a constructive trust upon the property purchased and the profits realized therefrom in favor of Couch as the party beneficially entitled thereto. It was too late for Dupee and Chumasero to terminate those relations and avoid the effects of their having existed between the parties. I believe this would be the case whether the defendants, Dupee and Chumasero intended any fraud or not. While it is true that in some cases persons occupying fiduciary relations may contract with the cestui que use, as to the property connected with such relations or may under certain circumstances beome the owners thereof; yet I am of the opinion from the evidence presented, that considering the peculiar circumstances of this case, the embarrassed condition of Couch's matters, his extreme old age, the great influence and control which these parties had obtained over him, the intimate and close trust and confidential relations existing between them and Couch, there is a strong probability that complainant Couch will be entitled to a decree that as against him they cannot hold, and that it would be unconscientious to permit them to retain the property purchased or the profits realized therefrom. Being of this opinion, the property being of great value with large profits accruing therefrom and Dupee and Chumasero claiming to own the same in their own right, I hold that a receiver should be appointed as to their undivided one half interest in the furniture and as to the profits arising under the contract with Rice in order that the same may be preserved for the party that shall ultimately be found entitled thereto. (Circuit Court of Cook County.) The People VS. Adsit, et al. BAIL-ADMISSION TO-POWER OF COURT OF ANOTHER CIRCUIT-ARBEST 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 bail. Habeas corpus. Heard before Judge Erastus S. Williams. Adsit and Abbey were indicted in the Kane county circuit court, charged with obtaining the conveyance to themselves of a farm, by false pretences. A capias was issued, and they were arrested by the sheriff of that county. No order for the taking of bail was made by the circuit court of Kane county, and the defendants were lodged in jail at Geneva. They sued out a writ of habeas corpus from the circuit court of Cook county, asking to be let to bail, and setting up the illness and inability to act of the judge of the Kane circuit, as a reason for applying to the circuit court of Cook county. Judge J. G. Wilson appeared in opposition to the application, and suggested a doubt as to the power of the circuit court of Cook county to admit the petitioners to bail. He reviewed the provisions of the statutes, and claimed that the only provision in relation to the taking of bail, after indictment found, is the 175th section of the criminal code, which provides as follows: "It shall be the duty of the circuit court, when any indictment shall be found as a true bill, to make an order, fixing the amount of bail to each offence bailable by law, to be endorsed on the process of the clerk.” He claimed that the 206th section applies only to the cases of persons committed to jail on a criminal charge for want of bail after a hearing by an examining magistrate; in which cases any judge or two justices may take bail. He also cited the acts of congress of 1789 and 1793, which provide that in case of the absence from a district of a judge of the United States district court, a judge of a state court, mayor of a city, etc., may take bail; and he claimed that this was in the nature of a legislative construction, that, in the absence of such a provision, no other court or tribunal would have power to admit to bail. He referred to the fact that the court of king's bench, in England, as the superior court of the realm, and having the control of all superior courts, exercised the power to admit to bail in all cases where the inferior court had failed to do so; that under our system circuit courts are of equal dignity and power, and each the superior court within its jurisdictional limits. He also quoted the remark of Lord Bacon, "It is a general rule that whosoever may judge of the offense may bail the offender," and claimed that as the indictment is pending in another circuit, the circuit court of Cook county has no jurisdiction to try and determine the case, and therefore may not take bail. Mr. Pulver for the petitioners urged the great hardship in this, as well as other similar cases that might arise, if the law as claimed by Judge Wilson was to prevail, and urged that the court under the circumstances ought to interpose and admit the petitioners to bail. Judge Williams, in delivering his opinion, remarked that the question presented was a new one, and he had suggested to the petitioners' counsel at the time of allowing the writ, his doubts as to the power of the court to take the desired action. He said as the case stood it was one of great hardship, and it was his duty to admit the defendants to bail if, under the law, he was authorized to do so. On the other hand, the people were entitled to have legal and competent bail, and if he were to act without authority the bail would be unavailing. Upon such examination as he had been able to give the question, his doubts as to the power of the court to act were only strengthened, and he felt it to be his duty to deny the prayer of the petition and remand the prisoners into the custody of the sheriff of Kane county. (Circuit Court of Coles County.) The People of the State of Illinois VS. Edgar A. Potter and Fred More (No. 3760, Criminal carelessness; No. 3761, Manslaughter.) Same VS. Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell, Peter S. Grosscup and Fred More. (No. 3762, Manslaughter; No. 3763, Criminal carelessness.)1 Same VS. Charles Botts (No. 3764. Manslaughter.) Same VS. Ben McClara (No. 3765. Manslaughter.) (February 28, 1908.) 1. CRIMINAL CARELESSNESS WHILE IN CHARGE OR CONTROL OF PUBLIC CONVEYANCE-LIABILITY OF OFFICERS AND DIRECTORS OF RAIL ROAD. 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. (See note 1, p. 412.) 1 Indictments Nos. 3700, 3710, 3713, 3714, 3741, 3742 and 3743 were nollied on account of the pendency of the second series of indictments.-Ed. |