witness and excluded the proof of habits, but permitted the case to go to the jury. A verdict was rendered for plaintiff and judgment rendered, and upon review by the Supreme Court, this judgment was affirmed.

The Supreme Court in the Soucie case says that the witness produced by defendant was an eye witness, and that the trial judge correctly excluded the proof of habits. Thus it will be noted the record is without any facts from which the presumption of due care could flow-the court merely saying, "under all the evidence” it was a question for the jury whether due care was exercised by deceased.

We submit this holding is in direct conflict with the holding in the Petro case. In the Petro case the trial judge refused to exclude the proof of habits and was reversed, the court saying that with proof of habits excluded from the record there was nothing to support the judgment.

The trial judge in the Soucie case excluded the proof of habits and this left the record in exactly the same situation as in the Petro case, that is, barren of proof of due care. Plaintiff in the Soucie case was proceeding on the same theory as in the Petro case, namely, there being no eye witness, he could establish due care by the presumption which flows from proof of reputation of careful habits. The basis for this presumption having been removed from the record in both cases, it would seem that the Soucie case like the Petro case should have been reversed.

It will also be noted that in the Soucie case defendant on the trial tendered the eye witness in strict compliance with what the court intimated should be the proper practice in such cases in Moore v. B. D. & C. R. Co. 295 Ill. 63.

The Soucie case decision is also in direct conflict with the holding of the Supreme Court in Neweli v. C. C. C. & St. L. R. Co. 261 Ill. 505. This last case was also a so-called death case, with no eye witness, and in discussing the proof in this class of cases to be made by plaintiff for his case in chief, the court said:

"No proof whatever was offered as to any fact or circumstance which would tend to show that the deceased was in the exercise of due care and caution at the time of the accident. . . Under this rule [referring to the rule permitting proof of habits] a plaintiff is not permitted, in cases where there are no eye witnesses, to merely prove the accident which resulted in death, and then rely upon the instinct of selfpreservation common to all men to establish the exercise of due care and caution on the part of the deceased. It is incumbent upon the plaintiff in such a case to prove the habits of the deceased as to sobriety, as to prudence and the exercise of care and caution in the ordinary affairs of life, and as to any other particular that would tend to throw light upon the question of whether, at the time of the fatality, he was likely to have been in the exercise of ordinary care. In the absence of any proof whatever which would tend to show that the deceased was in the exercise of ordinary care for his own safety, the defendant in error was not entitled to recover. The peremptory instruction asked for should have been given upon this ground.”

The Moore case, supra, and the Newell case, supra, were cited in the original brief filed in the Soucie case; they were again recited, together with the Petro case, in the petition for rehearing, but the court made no reference to them.

To

It could fairly be argued from the Soucie opinion that a plaintiff in this kind of case is not now required to establish due care by any other proof than to show the physical situation of the place where the accident occurred, and it will then be for the jury, "under all the evidence," to say whether due care was exercised. adopt this procedure will in effect overrule not only the Newell case, supra, but many other decisions of our Supreme Court, which have announced the duty of plaintiffs in these cases to establish due care either by direct evidence of witnesses or by the presumption flowing from proof of careful habits.

Certainly the Soucie opinion would seem to be in direct conflict with the holding in the Petro and Newell cases.

Watseka, Ill.

ROSCOE C. SOUTH.

COMMENT ON RECENT CASES

MALICIOUS PROSECUTION-HARASSMENT BY REPEATED CIVIL SUITS, AS DAMAGE.-When stout old Chief Justice Holt, two centuries ago, in Savile v. Roberts (1 Ld. Raym. 374) laid down his wholesome definition of the damage element necessary for obtaining redress in an action for vexation by litigation, he was probably not intending to lay down an inflexible rule. Nevertheless, subsequent experience has confirmed his threefold analysis, viz., that the plaintiff must show damage either to reputation or to person or to property. Hence the Illinois doctrine of Smith v. Michigan Buggy Co. (1898; 175 Ill. 619, 51 N. E. 569) that a civil suit, unaccompanied by any one of these three elements of damage, cannot be subject of an action by the successful party for malicious prosecution.

Fortunately, however, the opinion in that case allowed for some flexibility; it saved an opening for such action where there was "other special injury not necessarily resulting in all suits prosecuted to recover for like causes of action." And now such a case has presented itself, with a unique state of facts that seems to be of entirely new impression and yet to fulfil the saving phrase and to merit redress; which redress the Supreme Court has granted. In Shedd v. Patterson 302 Ill. 355, 134 Ñ. E. 705 (April 7, 1922), the plaintiff had redeemed a 102-year leasehold interest from foreclosure by the defendant and others owners of the fee of a lot at the northwest corner of State and Washington streets, Chicago. This was in 1905. The now defendant then proceeded to harass the now plaintiff by a series of proceedings attacking the leasehold estate a motion to set aside the order for possession, a bill to set aside the foreclosure, and so on. These several proceedings were pursued to the Supreme Court from time to time, extending down to 1918, and are dealt with in at least five opinions by the Illinois Supreme Court and one by the Federal Supreme Court; all rejecting the now defendant's contentions. Meanwhile, he had been enjoined against further suits for the destruction of the leasehold. But he then began a series of actions for damages on various grounds, all of which were dismissed. Finally the now plaintiff, harassed with expense and annoyance of this groundless litigation, brought this action.

The Circuit Court, moved doubtless by the state of the prior rulings, directed a verdict for the defendant, but also gave conflicting instructions. The Appellate Court affirmed the judgment for the defendant. The Supreme Court now reverses the judgment, and remands the cause for a new trial.

The only question can be, Why could not the Supreme Court direct the entry of a verdict for the plaintiff? That the prior suits had all terminated in the now plaintiff's favor is plain, in point of law. That "no rational person would have had probable or reason

able grounds to believe that he could recover" is declared by the Supreme Court, and probable cause is or can be a question of law for the court. But there remains the element of malice, and this issue cannot be taken from the jury. If the now plaintiff wants damages, he will have to take his chances with another jury on that issue. But if he would be satisfied with a future surcease of trouble, why can he not obtain a perpetual injunction against any and all suits arising out of this leasehold interest?

The odd feature is that the now defendant is the now plaintiff's landlord and will be so for another 70 years or so. Is there not some expedient of self-help by which the lessee can, for example, reserve payment of the ground rent, apply it on his unpaid bills of costs in the prior litigations, file a set-off when sued for the rent, and worry the now defendant to a quietus by defensive tactics, while at the same time recouping himself? As it stands, the lessee's rentals are presumably paying the expenses of the lessor's aggressions; and if that flow of assets is checked, perhaps the litigation will run dry. Or why not try an action for abuse of legal process, in which malice of the defendant need not be proved?

'Interest reipublicæ ut sit finis litium.' But this 'lis' seems to have an unquenchable 'vis.'

J. H. W.

CRIMINAL LAW INDICTMENT- BURGLARY-PARTNERSHIPENTITY THEORY.-In People v. Zangain 301 Ill. 229, 133 N. E. 783, the idea that a partnership is an entity is used as an avenue of escape from a dogmatic rule, quite generally followed in the United States, that in an indictment for burglary where ownership of the property entered is laid in a partnership the names of the partners must be averred (Emmons v. State 87 Ala. 12; State v. Jones, 168 Mo. 398; Chapple v. State, 124 Tenn. 105) and by inference seemingly recognized in decisions of the Supreme Court of Illinois. The justification for the rule that ownership must be averred in the indictment is said to be in the necessity that it shall show that the property entered is not that of the accused, and that the property may be identified of record to prevent a second accusation against the accused for the same offense. Now as the crime of burglary consists of the actual or constructive breaking into a dwelling house or place of business with intent to commit a felony and the indictment should therefore aver the facts which constitute the crime, it is said to be essential that the ownership in one other than the accused should conclusively appear in the indictment. But, after all, is not this rather narrow logic? The averment of ownership is the averment of a positive fact from which a conclusive negative is to be inferred. To carry the argument to its logical conclusion, would it not require the averment of every negative fact which might exclude the possibility that the crime was that of burglary, as, for instance, that the entry was without right or without license of one having authority to grant it? When ownership is averred in a corporation, does it necessarily exclude a right inhering in the accused

to enter (apart from any implied or express consent, license, or invitation of the owner) because membership in certain kinds of corporations might carry with it a right of forcible entry? Would it be burglary for the member of an incorporated club, for instance, to break into the club house with the intent to commit a felony? After all, the rule is a convenient and reasonable one provided it is not interpreted as if it rested upon the idea that the mere allegation of ownership does in itself completely negative the possibility of a lawful entry.

In People v. Zangain the indictment averred ownership in "James A. Hendricks and the estate of H. H. Morgan, deceased, a partnership operating under the firm name of Morgan and Hendricks." The problem confronting the court was not an entirely new one, though the precise question as to whether or not the names of the partners must be averred had never been directly passed upon. The court could undoubtedly on the authority of decisions in other states on the express point, and its own reasoning and dicta in cases involving the problem of the averment of ownership, easily have answered the question in the affirmative.

In Wallace v. People 63 Ill. 457, and Staaden v. People 82 Ill. 432, indictments averring ownership in a company without averring either that it was a corporation or naming its members were held bad. To the same effect was the holding in People v. Brander 244 Ill. 26, though Justice Cartwright in his opinion reserved the question whether naming the partners would have been necessary had ownership been laid in a partnership. To the same effect was People v. Krittenbrink 269 Ill. 244, which involved not the form of the indictment, but the failure to prove the fact of corporate existence which had been properly averred. This significant statement appears in that case: "When an averment of ownership is necessary, the ownership must be alleged in a person, corporation, or other entity." Whether a partnership is such an entity would seem to have been answered by the court in the negative in People v. Dettmering 278 Ill. 580, in which Mr. Justice Carter says: "We think the position is squarely against the reasoning in Meadowcroft v. People supra, when the court said on this question (p. 73): 'Whatever may be the law of other states, such is not the law of this state."" From Mr. Justice Carter's separate opinion in People v. Picard 284 Ill. 588, it is obvious that his mind was not entirely at ease as to the wisdom of the cases involving averment of corporate ownership, which, if the responsibility were his, he would overrule in the interest of public policy.

In People v. Zangain the plaintiff in error contented himself with this assertion of the defect in the indictment: "It is manifest that ownership of the property burglarized is not alleged. The ownership not being alleged, the indictment is fatally defective." To this Mr. Justice Cartwright says: "There is no argument in support of the brief, but we infer that counsel means that while ownership is alleged, as it clearly was in fact, the alleged owners, or some of them, were incapable of owning property."