tion the plaintiff's business began to be interfered with by these agents and secret service men; that contractors and owners who were purchasing and using plaintiff's brick were compelled to cease using them; that large orders and sales were canceled; that one owner was compelled to pay a fine to the Masons' & Builders' Association before being permitted to complete with plaintiff's brick a building which was under way; that workmen were directed not to lay plaintiff's brick because he was not in the combination; and there is evidence of particular cases in which such interference occurred. In one case where, as the evidence tends to show, money had to be paid to the Masons' & Builders' Association for the privi lege of using plaintiff's brick to complete a job then under way, in order to get the work completed, the association afterward returned the money when threatened with legal procedure. The plaintiff testifies that the result of the combination and consequent interference with his business was that his brick became 'absolutely worthless. There wasn't hardly a man in Chicago that would handle them. The workmen all belonged to the union, practically, and the hod carriers would not handle them, or the bricklayers wouldn't lay them.' he was called on by the secretary of the Masons' & Builders' Association, who told plaintiff 'that the joint committee of the master masons and the brick manufacturers' crowd had just had a joint session in the next room' adjoining my office and had directed him to inform me that they requested me to sell no more brick in the city of Chicago or Evanston. I told him they must be wrong-that it was equivalent to asking me to quit business. He said: "There is no mistake on my part. The committee have just adjourned, and the members are still in the next room.' I said, 'Go back and tell them they are a bigger lot of fools than I thought they were,' and I made a similar request of them."

He testifies that

We think the foregoing finding as to the facts is sustained by the proofs. The question of unlawful conspiracy to injure the business of another, and the necessary elements to constitute it, has been before this court on other occasions. Our Reports contain many well considered cases on the subject. No person or combination of persons can legally, by direct or indirect means, obstruct or interfere with another in the conduct of his lawful business, and any loss willfully caused by such interference will give the party injured a right of action for all damages sustained. All parties to a conspiracy to ruin the business of another because of his refusal to do some act against his will or judgment are liable for all overt acts illegally done pursuant to such conspiracy and for the subsequent loss, whether they were active participants or not. Doremus v. Hennessy. 176 Ill. 608, 52 N. E. 924, 54 N. E. 524, 43

L. R. A. 797, 802, 68 Am. St. Rep. 203; O'Brien v. People ex rel., 216 Ill. 354, 75 N. E. 108. To the same effect, see Smith v. People, 25 Ill. 9, 76 Am. Dec. 780; Craft v. McConoughy, 79 III. 346, 22 Am. Rep. 171; More v. Bennett, 140 Ill. 69, 29 N. E. 888, 15 L. R. A. 361, 33 Am. St. Rep. 216; Foss v. Cummings, 149 Ill. 353, 36 N. E. 553; American Live Stock Commission Co. v. Live Stock Exchange, 143 Ill. 210, 32 N. E. 274, 18 L. R. A. 190, 36 Am. St. Rep. 385; Harding v. American Glucose Co., 182 Ill. 551, 55 N. E. 577, 64 L. R. A. 738, 74 Am. St. Rep. 189; Lasher v. Littell, 202 Ill. 551, 67 N. E. 372; Chicago, Wilmington & Vermilion Coal Co. v. People, 214 Ill. 421, 73 N. E. 770. To the same effect are the decisions of the court in other jurisdictions. See cases cited in Doremus v. Hennessy, on page 616 of 176 Ill., page 926 of 52 N. E. (43 L. R. A. 797, 802, 68 Am. St. Rep. 203). Under the authorities above cited and in view of the evidence as it appears in the record, there is evidence fairly tending to show that appellants were guilty of an unlawful combination and conspiracy to maliciously injure the appellee's business. The court committed no reversible error in refusing to instruct the jury to find for the defendants.

Complaint is also made of the rulings of the court in the admission and exclusion of evidence and in giving and refusing instructions. All of these alleged errors are based upon the theory that the appellants were not guilty of an unlawful combination and conspiracy. In each instance the evidence admitted tended to prove the allegations of the declaration, and was therefore competent. The instructions given announced the law of conspiracy as held in the foregoing decisions, and those refused laid down a contrary rule.

We find no reversible error, and the judgment of the Appellate Court will be affirmed. Judgment affirmed.

(219 Ill. 12)

MUNGER et al. v. CROWE et al. (Supreme Court of Illinois. Dec. 20, 1905.) VENUE INJUNCTIVE ACTION AFFECTING REALTY.

A proceeding to enjoin the removal of a wing of a courthouse to another part of the courthouse grounds must be brought in the county where the courthouse is located, under Chancery Act (Hurd's Rev. St. 1903, c. 22) § 3; it being a suit which "may affect real estate."

Appeal from Appellate Court, First District.

Bill by Frank M. Munger and M. J. Henaughan against John V. Crowe and Albert J. Crowe. A decree dismissing the bill was affirmed by the Appellate Court (115 Ill. App. 189), and complainants appeal. Affirmed.

On July 25, 1903, Frank M. Munger and M. J. Henaughan, the appellants, who are residents and taxpayers of De Kalb county,

filed a bill in the superior court of Cook county for an injunction to restrain John V. Crowe and Albert J. Crowe, who are residents of Cook county, from removing the west wing of the courthouse at Sycamore, in De Kalb county, from its present site to another part of the courthouse grounds. A temporary injunction issued in accordance with the prayer of the bill. The defendants filed a sworn answer and a motion to dissolve the temporary injunction and to dismiss the bill for want of equity, and presented affidavits in support of said motion. The court, upon considering the pleadings and affidavits, entered a decree dissolving the injunction. Complainants prayed an appeal from that decree, and the court thereupon dismissed the bill for want of equity. Complainants appealed from the decree dissolving the injunction and dismissing the bill to the Appellate Court for the First District. That court affirmed the decree of the superior court on the ground that a decree in conformity with the prayer of the bill would affect real estate wholly in De Kalb county, and that the courts of Cook county, therefore, had no jurisdiction of the cause. Complainants in the bill prosecute a further appeal to this court.

The facts material to a decision of the questions here presented are as follows: At an adjourned regular meeting of the board of supervisors of De Kalb county, held on June 11, 1903, a special building committee was appointed pursuant to a resolution of the board. On the following day a resolution was adopted by the board accepting and adopting plans and specifications prepared by H. T. Hazelton, an architect, for the erection of a courthouse for De Kalb county, said plans to be subject to changes and approval of said special building committee, and Hazelton was directed to provide the balance of the specifications and details necessary to furnish and complete the courthouse, and file a copy thereof with the county clerk by June 26, 1903. By the resolution the special building committee was authorized and directed to take steps to remove the west wing of the present courthouse, and vaults therein, to some convenient place on the courthouse grounds, for use during the construction of the new courthouse. On June 26, 1903, the special building committee accepted the bid of $1,600 made by the appellees for the removal of the west wing and vaults, and on July 1, 1903, entered into a contract with appellees based upon such bid. Appellees entered upon the performance of the contract, but were restrained from completing it by the temporary injunction herein. Appellants contend that a decree in accordance with the prayer of the bill would not affect real estate in De Kalb county, and that, as the defendants were residents of Cook county, the suit was

properly commenced in the latter county. They also urge that the contract under which appellees were working is void, and that appellees had no authority to proceed under that contract.

Lloyd C. Whitman and Harry W. McEwen (Kern & Brown, of counsel), for appellants. Hopkins, Dolph, Peffers & Hopkins, for appellees.

SCOTT, J. (after stating the facts). The first question presented is, did the superior court of Cook county have jurisdiction of this suit? This must be determined by section 3 of chapter 22 of Hurd's Revised Statutes of 1903, which reads as follows: "Suits in chancery shall be commenced in the county where the defendants, or some one or more of them resides; or if the defendants are all nonresidents, then in any county; or if the suit may affect real estate, in the county where the same or some part thereof is situated. Bills for injunctions to stay proceedings at law shall be brought in the county in which the proceedings at law are had." It is contended by appellees that the superior court of Cook county did not have jurisdiction of the suit, because it was a suit which may affect real estate in De Kalb county. Appellants insist this suit Iwould not affect real estate, and that the injunction operates upon the individuals only.

The courthouse of De Kalb county was a part of the realty on which it was located. Removing it, or a part of it, from its location, necessarily affects the real estate on which it is located and of which it is a part. Restraining the removal of a building by one having or claiming the right to remove it, from one part of certain real estate to another part thereof, has a physical and material effect on the real estate. "The meaning of the word 'affect,' as used in the statute, is to act upon, which, indeed, is its ordinary signification." Enos v. Hunter, 9 Ill. 211. If the court, to grant the relief sought, must deal directly with the real estate itself, then the suit is one "which may affect real estate." Johnson v. Gibson, 116 Ill. 294, 6 N. E. 205; Hayes v. O'Brien, 149 11. 403, 37 N. E. 73, 23 L. R. A. 555; Craft v. Indiana, Decatur & Western Railway Co., 166 Ill. 580, 46 N. E. 1132. The effect of this suit, if an injunction should be awarded, would primarily be upon the persons enjoined; but its practical and ultimate effect would be upon the real estate. If the injunction did not have that effect, it would be useless. While it would restrain the persons from acting, it is clear that the resultant effect on the property was the end sought. If the object of the suit were to compel the removal of a building from the real estate, it would scarcely be contended that real estate would not be affected thereby; and it seems equal

ly clear that, where an injunction is sought to prevent the removal or physical disturbance of a part of the real estate, the suit is one which "may affect real estate." By such an injunction the court would, so far as matter of substance is concerned, deal directly with the real estate itself.

As we are of the opinion that the superior court was without jurisdiction, for the reason that the suit could under the statute be properly brought only in De Kalb county, it is unnecessary to consider the other propositions which have been urged upon our attention. The decree will be affirmed. Decree affirmed.

(219 Ill. 79.)

CHICAGO HEIGHTS LUMBER CO. 7.

MILLER.

(Supreme Court of Illinois. Dec. 20, 1905.) FRAUDS, Statute of-PrOMISE TO PAy Debt OF ANOTHER.

The verbal acceptance of a written request of another to pay his debt, where the person accepting it is not indebted to such other and has no funds of such other in his hands, and a payment of part of the amount by check and an agreement to pay the balance, is within the statute of frauds, as a verbal promise to pay the debt of another, though the written order is retained by the promisor.

Appeal from Appellate Court, First District.

Action by the Chicago Heights Lumber Company against David Miller and Isadore Miller. Judgment for plaintiff against David Miller was reversed by the Appellate Court (117 Ill. App. 468), and the Chicago Heights Lumber Company appeals. Affirmed.

In this cause the Appellate Court for the First District reversed the judgment of the circuit court of Cook county, which was against Miller, without remanding the cause, on the ground that neither the declaration nor the evidence shows a cause of action against the defendant. Miller appealed, and the following accurate statement of the facts in the rase was made by the Appellate Court:

"This is an appeal from a judgment of the circuit court of Cook county in favor of appellee (Chicago Heights Lumber Company) and against appellant (David Miller) impleaded with Isadore Miller. The declaration avers, and the proof shows, that on August 10, 1901, William Frink drew an order on Miller Bros. for $682.81 in favor of appellee, in terms as follows:

"Chicago Heights, Ill., August 10, 1901. "'Mr. Wm. Frink-Miller Job. ""In Account with Chicago Heights Lumber Company, (Incorporated), Dealer in Lumber, Lath, Shingles, Lime, etc., Corner Sixteenth Street and East End Avenue. August 10. To mdse.

.$711 47 Less material returned.... 28 66

"Frink delivered the order to appellee, and appellee presented it to appellant, who, on behalf of Miller Bros., gave appellee the check of Miller Bros. for $400 thereon and promised orally to pay the balance of the order in a few weeks, retaining the order in his possession. Miller Bros., defendants, pleaded the general issue, and subsequently, by leave of court, filed two additional pleas of the statute of frauds, averring that the promises mentioned in the declaration were special promises to answer for the debt of Frink, and that no memorandum or note thereof in writing, signed by the defendants, or either of them, was made. To these pleas the court sustained a demurrer. On the trial the defendants, at the close of plaintiff's case, moved to strike out the plaintiff's evidence, on the ground that the contract came within the statute of frauds. This motion was denied. A motion to instruct the jury to find for the defendants was also denied. Thereupon defendants called David Miller to the stand and offered to prove by him that Frink had contracted to erect a building for appellant and had defaulted in the performance of his contract, but the evidence was rejected for want of proper pleas. At the close of the evidence the defendants requested the court to give a number of instructions, to the effect that, unless it appeared from the evidence that at the time of the alleged acceptance of the order the defendants had in their hands a fund belonging to the drawer, out of which to pay the order, the plaintiff could not recover. The court refused to give any of these instructions, and instructed the jury to return a verdict for the plaintiff for $308.13. After overruling a motion for a new trial and a motion in arrest of judgment the court entered judgment on the verdict. Errors are assigned upon the ruling on the demurrer to cluding evidence, and the giving and refusing appellant's additional pleas, receiving and ex

of instructions."

The Appellate Court incorporated in its judgment the following finding of facts: "The court finds that the acceptance sued on in this case was an oral acceptance of an order, and that there was no fund in the hands of appellant, the acceptor, out of which to pay the order." The Chicago Heights Lumber Company obtained a certificate of importance from the Appellate Court, and brings the record to this court by appeal.

Rosenthal, Kurz & Hirschl, for appellant. William H. Johnson and Robert W. Millar, for appellee.

SCOTT, J. (after stating the facts). Miller Bros. held no fund belonging to Frink and were not indebted to him. If Frink, under these circumstances, had orally requested Miller Bros. to pay his debt to Chicago Heights Lumber Company, and Miller Bros. had verbally promised the company to do so, the promise would have been within the stat.

ute of frauds. Does the fact that Frink's request to Miller Bros. to pay his debt was in writing and that the written request was left with appellee when he paid a part of the debt and verbally agreed to pay the remainder make a material difference? We think not. In either event Miller Bros. could recover from Frink any amount paid in pursuance of his request. The only difference is that in one instance the evidence of Frink's request lies in parol, while in the other it is in writing. In either case the promise to pay Frink's debt is verbal, and the statute of frauds presents a complete defense. The only case to which our attention has been called, where, upon the oral acceptance of such an order, the writing itself was left with the acceptor, is that of Louisville, etc., Railway Co. v. Caldwell, 98 Ind. 245. The views there expressed by the court of last resort of the state of Indiana are consonant with the conclusion reached above.

If the written request of Frink be regarded as a bill of exchange, the result would not be different, as the verbal acceptance by the drawee of a bill of exchange, who holds no funds of the drawer is no more than a parol promise to answer for the debt of another. Browne on Frauds, 174; 2 Rob. Pr. 152; Quin v. Hanford, 1 Hill (N. Y.) 84; Pike v. Irwin, 1 Sandf. 14; Manley v. Greagan, 105 Mass. 445; Plummer v. Lyman, 49 Me. 229; Wakefield v. Greenhood, 29 Cal. 600; Walton v. Mandeville, 56 Iowa, 597, 9 N. W. 913, 41 Am. Rep. 123. The judgment of the Appellate Court will be affirmed.

A county superintendent of schools has no power to antedate a teacher's certificate, and may be compelled by mandamus to date it correctly.

[Ed. Note. For cases in point, see vol. 33, Cent. Dig. Mandamus,es in

3. ESTOPPEL-OFFICIAL CERTIFICATE.

A county superintendent is precluded on the ground of estoppel from collaterally attacking a teacher's certificate issued by him, by showing that it was issued without due examination.

[Ed. Note. For cases in point, see vol. 19, Cent. Dig. Estoppel, § 214.]

4. SCHOOLS AND SCHOOL DISTRICTS-RENEWAL CERTIFICATES.

Under School Law (Hurd's Rev. St. 1899, c. 122) art. 7, § 3, providing that the county superintendent may at his option renew teachers' certificates at their expiration by indorse

ment thereon, a teacher's certificate can only be renewed by the indorsement of the county superintendent, and the issuance of a new certificate cannot be regarded as a renewal.

Appeal from Appellate Court, Third District.

Mandamus proceedings by Henry Anderson against Charles Van Dorn, as superintendent of schools of Sangamon county. From a judgment of the Appellate Court (117 Ill. App. 618), affirming a judgment awarding the writ, defendant appeals. Affirmed.

This is a petition, filed by the appellee in the circuit court of Sangamon county, against the appellant, as superintendent of schools of said Sangamon county, praying for a writ of mandamus, commanding appellant to change the date of a teacher's certificate issued by appellant to appellee, so that said certificate should show upon its face the true date of its issuance. After a demurrer to the petition was filed and overruled, appellant pleaded to the same, and upon the hearing the trial court found the issues for appellee, the petitioner, and ordered that the writ issue forthwith, commanding appellant that he correct the certificate, which bore date on July 1, 1901, so that it would show upon its face the true date of its issuance by appellant to appellee, to wit, the 1st day of September, 1902. An appeal was taken from the judgment ordering the issuance of the writ to the Appellate Court, which has affirmed said judgment. The present appeal is prosecuted from such judgment of affirmance.

The petition averred that appellee, of Sangamon county, had for many years prior to July 2, 1902, taught in the common schools of said county, under several first-grade certificates issued to him by the superintendent of schools of that county upon due examination; that the last of said first-grade certificates expired on July 2, 1902, and that afterwards, on September 1, 1902, appellee applied to appellant, as such superintendent, to grant to him a first-grade certificate, and was there and then ready and willing to submit himself to an examination by appellant, as such superintendent, touching his qualifications; that thereupon the appellant on, to wit, September 1, 1902, issued and delivered to appellee a certificate in the words and figures following, to wit: "Sangamon County, Illinois, July 2d, 1901. The undersigned, having examined Henry Anderson in [certain studies, naming them] and being satisfied that he is of good moral character, hereby certifies that his qualifications in all the above branches are such as to entitle him to this certificate, being of the first grade, valid in said county for two years from the date hereof, and renewable at the option of the county superintendent by his indorsement thereon. Given under my hand and seal at the date aforesaid. Charles Van Dorn, County Superintendent of Schools. [Seal.]" The petition then avers that when

the certificate was delivered to him he did not observe that it did not bear the true date of its issuance (being dated July 2, 1901, instead of July 2, 1902), but that, when appellee did observe that date written in said certificate, he afterwards, to wit, on August 24, 1903, applied to appellant as such superintendent, at his office in Springfield, in said county, to correct the date of the certificate, so that the same would show the true date of its issuance, but that appellant refused to make such correction, by means whereof appellee was prevented from teaching in said county from September 1, 1903, until September 1, 1904, as he had a just and lawful right to do.

Perry & Morgan, for appellant. Shutt & Graham and Hamilton & Catron, for appellee.

MAGRUDER, J. (after stating the facts). The appellant, as county superintendent of schools of Sangamon county, first issued to appellee a first-grade certificate in 1899, upon a written examination as to his qualifications. When this certificate expired two years later, to wit, on July 1, 1901, appellant at that time issued another first-grade certificate to appellee, but dated it back to July 2, 1900. The latter certificate was issued without a further written examination, as appellee had taken an examination in 1899, and he testifies that appellant told him that another one was not necessary, and that when a teacher had passed one examination appellant would not require him to take another during his superintendency. As the second certificate, issued on July 1, 1901, had been dated back a year to July 2, 1900, it therefore expired, according to its date, on July 1, 1902. Appellee applied to appellant in June, 1902, to correct the date on said certificate, so that it would bear the true date of its issuance, namely, July 2, 1901; but appellant refused to correct the date as requested, and thereupon appellee, on September 1, 1902, made a written application to appellant as such superintendent, in the usual form, for a new certificate, and left one dollar to pay for the same. Thereupon, without further written examination, appellant issued and delivered to appellee a new first-grade certificate, but dated the same back to July 2, 1901, as will appear from the certificate set forth in the statement preceding this opinion. When appellee discovered, in April, 1903, that this certificate had been dated back, he went to appellant in August of that year and asked him to correct the date of the certificate, so that it would bear date as of September 1, 1902, the true date of its issuance, but appellant refused so to do; and thereupon the present petition for mandamus was filed. Section 3 of article 7 of the school law, provides that "it shall be the duty of the county superintendent to grant certificates to such persons as may, upon due examination, be found

qualified. Said certificates shall be of two grades; those of the first grade shall be valid in the county for two years, and shall certify that the person, to whom such certificate is given, is of good moral character, and is qualified to teach [certain studies, naming them]. * Certificates of the second grade shall be valid for one year, and shall certify that the person, to whom such certificate is given, is of good moral character, and is qualified to teach [mentioning certain studies]. The county superintend

*

ent may in his option renew said certificates at their expiration by his indorsement thereon," etc. Hurd's Rev. St. 1899, p. 1552. Section 3 of article 7 above referred to prescribes the form of the certificate; and such form contains the words: "valid in said county for year from the date hereof, renewable at the option of the county superintendent by his indorsement thereon." Paragraph 16 of section 13 of article 2 of said school act also provides that "it shall be the duty of each county superintendent of schools in this state grant certificates of qualification to such persons as may be qualified to receive them, as provided for in section 3 of article 7 of this act," etc. Hurd's Rev. St. 1899, p. 1523. Paragraph 3 of section 14 of article 2 of said act also provides that "the said county superintendent shall have power * * * to renew teachers' certificates at their expiration by his indorsement thereon." Id.

to

It is insisted by appellant that the per formance of the duties imposed upon the county superintendent of schools by the provisions of the statute above quoted is a matter of discretion and judgment with that official, and that therefore their performance cannot be enforced by mandamus. Undoubtedly it is the general rule that the writ of mandamus will not lie to compel the performance of acts or duties which necessarily call for the exercise of judgment and discretion on the part of the officer or body at whose hands their performance is required. People ex rel. v. Illinois State Board of Dental Examiners, 110 Ill. 180; Illinois State Board of Dental Examiners v. People, 123 III. 227, 13 N. E. 201. But a writ of mandamus will issue to command the performance of an official act in a proper manner, when such act is in its nature ministerial, and not judicial. Graham v. People, 111 III. 253; People v. Mayor of Alton, 179 Ill. 615, 54 N. E. 421. Under the provisions in question the county superintendent undoubtedly exercises a discretion, judicial in its character, when he determines that the teacher applying for the certificate has the qualifications required by the statute. A mandamus will not issue requiring the county superintendent to give a certificate that the applicant possesses the necessary qualifications, because such act would be an attempt to control his judicial judgment. But, after the county superintendent has decided that