Mr. Justice WALKER, dissenting.

But there is another view of the question, which, although requested, was not discussed by counsel, and that is, whether or not the order of the circuit court of Sangamon county, conceding that court was fully invested with jurisdiction to proceed with and try the case, did not, by its order remanding the case, change the venue of the case back to Macoupin county. That court was invested with full power to change the venue of this and any other case, and can any one doubt, that, having that power and jurisdiction of the subject matter and the parties, and an order is made changing the venue, the order would be binding and conclusive until the order should be vacated or reversed, however erroneous? Such an order, made without being asked, or even against the objection of both parties, would be binding and conclusive so long as it remained. in force. Of this, I believe, there can be no question. Whatever the form, it operated as and was a change of the venue of the case from Sangamon to Macoupin county.

Here there is an order, unimpeached, returning the case to Macoupin county for trial or other proceedings. Can there be the shadow of a doubt that, even if the case was, when the order was made by the Sangamon circuit court, properly in that court, the venue was changed back to Macoupin county by that order? We must look to the substance, and not the mere form, of the order. It purported, and its purpose was, to reinvest the circuit court of Macoupin county with jurisdiction, and if rightfully pending in the Sangamon circuit court its manifest and undeniable effect was to change the venue to Macoupin county. It may be there was gross error in making the order, but that can not be inquired of in this proceeding. Then how can it be that there can be the slightest pretense that the Sangamon circuit court has the shadow of legal right, jurisdiction or power to try this case with that order standing in full force? The term at which

Mr. Justice WALKER, dissenting.

the order was made having closed, there is no power in that court to vacate that order, nor can we reverse it in this proceeding. If the accused shall be tried and convicted in the face of that order, and he were to bring the case to this court, would it be possible to sustain the conviction, notwithstanding the peremptory writ of mandamus? For these reasons I dissent to the awarding of the writ.

43-105 ILL.

INDEX.

ACKNOWLEDGMENTS OF DEEDS.

MORTGAGE OF RAILROAD PROPERTY.

1. Real and personal—acknowledgment not governed by the Chattel
Mortgage act. A mortgage or deed of trust by a railroad corporation,
embracing all its real and personal property, with its franchise, made in
pursuance of express authority in its charter, and recorded in each
county through which the road passes, will create a valid and binding
lien on its personal as well as its real property, notwithstanding it has
not been acknowledged in accordance with the requirements of the
Chattel Mortgage act. That act has no bearing whatever upon, and was
never intended to apply to, railroad mortgages. Cooper et al. v. Corbin
et al. 224.

ACTIONS.

NATURE OF ACTION FOR INJURY.

1.

Whether ex contractu or ex delicto. Where a passenger on a rail-
way train is injured by a collision of his train with another, through the
mutual negligence of both companies, he exercising due care, he can not
maintain an action ex contractu against the company owning the rival
train; but this furnishes no reason why he may not maintain an action
ex delicto against it. Wabash, St. Louis and Pacific Ry. Co. v. Shack-

let, Admx. 364.

IN CASE OF SEVERAL WRONG-DOERS.

2. Election to sue any or all of them. Where one has received an
actionable injury at the hands of two or more wrong-doers, all, however
numerous, are severally liable to him for the full amount of damages
occasioned by such injury, and the plaintiff in such case has his elec-
tion to sue all jointly, or to sue each or any one of the wrong-doers.
Ibid. 364.

3. Injury from negligence of two railroad companies--right of
action against either. See NEGLIGENCE, 3.

PROMISE TO SUBSCRIBE TO STOCK.

4. And refusal—right of action. Where a person enters into a valid
contract with a corporation, by which he agrees to subscribe for a cer-

ACTIONS. PROMISE TO SUBSCRIBE TO STOCK.

Continued.

tain number of shares of stock in the company, upon his failure and
refusal to comply with that contract, without fault on the part of the cor-
poration, the latter will have a right of action to recover such damages
for the breach of the contract as it may have sustained. Quick et al. v.
Lemon, 578.

SERVICES OF CHILD TO THE PARENT.

5. Whether an action will lie. Where an adult daughter renders ser-
vices to her father at his request, in the absence of proof that the ser-
vices were performed as a gratuity the law will create a liability on his
part to pay for them, although no price has been agreed upon as com-
pensation. Warren v. Warren et al. 568.

CROSS-DEMAND.

6. As an independent cause of action. Although a defendant in a
suit at law may have a counter-claim which he could properly plead as a
set-off in the action, he is not bound to do so, but may bring his sepa-
rate action for the recovery of his demand. Quick et al. v. Lemon,
578.

FOREIGN ADMINISTRATOR.

7. A foreign administrator may maintain an action in this State
against a railway company to recover damages for causing the death of
the intestate through negligence. Wabash, St. Louis and Pacific Ry.

Co. v. Shacklet, Admx. 364.

INDIVIDUAL PARTNERS-AND THE FIRM.

8. Whether a partnership firm may maintain an action against one
of its members. See PARTIES, 4.

ADMINISTRATION OF ESTATES.

WHETHER ADMINISTRATION NECESSARY.

1. Where the husband, the sole heir of his wife as to her personal
estate, has paid all her debts and liabilities, and as such heir, and having
the possession of all her personal estate, makes a voluntary disposition of
promissory notes payable to his wife, and no administration is necessary
to collect the notes, the appointment of an administrator is unnecessary,
and if appointed he will not be entitled, as a matter of right, to have
the husband's equitable assignee surrender such notes to him merely to
collect them, and charge his commissions on the amount when collected.
People, use, etc. v. Abbott et al. 588.

VACANCY IN EXECUTORSHIP.

2. By what court an appointment to be made. The appointment of
executors belongs to the jurisdiction of the county court, and when one
of several executors dies, the circuit court should not appoint another
on bill for construction of the will, but should leave that with the county
court. Kennedy v. Kennedy et al. 350.