pared, subscribed, certified and filed with the secretary of state, and the usual certificate given by that officer.

The portion of the line to be constructed was from a point on the line between this state and Indiana, about three miles southeast of Sheldon, in Iroquois county, thence running northeasterly through that county and a portion of Kankakee county to the village of St. Anne.

Appellant did not assume to exercise the right of eminent domain, but obtained the right of way, so far as it was obtained, by purchase or contract. It located the road between the points stated, and, by about the middle of December, 1871, had it constructed, so that about the 1st of May, 1872, the through line, including the portion in question, was opened for public use as a railroad, and appellant has not only been in the exercise of its franchises as a railroad corporation, but the same has been open, public and notorious. In November, 1872, this company reorganized under the general railroad act of this state, which went into force March 1, 1872.

It appears, also, that about the 13th of November, 1872, the appellee was organized under the last mentioned act as a railroad corporation, to construct a road, in part at least, upon a route similar to that of appellant. On the 22d of November, 1872, appellee, having caused a survey of this line and a plat to be made, presented a petition to the county court of Iroquois county for the purpose, ostensibly, of condemning land through that county for its right of way. Numerous tracts and parcels are described and the names of owners or pretended owners given. Appellant is not named or described in the petition. Nor was any notice to appellant given or contemplated. Such proceedings were had upon this petition that a jury was summoned to ascertain the compensation. About this time appellant discovered that although it was in the actual possession and use of the right of way before mentioned as a common carrier, and this fact must have been known to the agents and attorneys of appellee, yet the land that appellee was about to have condemned was, in fact, the very right of way of which appellant was in actual and open possession for public purposes, and to this circumstance there was not the remotest allusion in appellee's petition. It appearing that there was no necessity or even plausible excuse for thus interfering with appellant's right of way, then, in view of the circumstances of appellant's open and notorious possession of it, and the studious exclusion of all these facts from appellee's petition, and the failure to make appellant a party, with notice, the inference is irresistible that this proceeding in the county court was designed for the fraudulent purpose of surreptitiously gaining possession of appellant's right of way. The actors in the formation of the scheme, as would seem from their positions in argument on this appeal, reasoned in this wise: "Now, there are defects in the organization of the Cincinnati, Lafayette and Chicago Railroad Company; they have made a slip in some particulars, and if we can so manage as to get a condemnation proceeding through the court without notice to that company, and thereby get into possession,

we can then assail their organization, convince the court that they can have no standing in court on account of those defects, and thus keep that possession, no matter how acquired." That is the very argument they urge here to sustain the decree of the court below dismissing appellant's bill to restrain them from thus obtaining possession, on the ground of fraud and want of jurisdiction in the proceedings to condemn. It is apparent from the fact of those proceedings, when considered with the surrounding circumstances, that the former, though ostensibly for the ordinary purpose of condemning land not appropriated to the railroad uses, for appellee's rights of way, were, in reality, but in the execution of a scheme devised for the fraudulent and inequitable purpose of getting possession of appellant's right of way without making compensation, and then to seize upon alleged defects in appellant's organization as a means of retaining it against justice and right. The morality of the act is supported by the same reasoning which would be resorted to in justification of a contemplated theft from one non compos mentis, "He is incapable of appearing in court to vindicate his rights."

An elaborate printed argument has been presented by appellee's counsel to show that appellant was not rightfully organized, and that therefore it could acquire no right of way, and especially that it can have no standing in court in its claim for protection against this contemplated invasion of its possession. He says the act of 1849 was repealed by the constitution of 1870.

There is, in our opinion, no basis for the position that the sections of the act of 1849, so far as they provide for the formation of such corporations, are abrogated by the constitution. They are not inconsistent with any of its provisions. Then, there being such a law authorizing the formation of railroad corporations, and articles of association having been prepared and filed with the secretary of state, and he having given the certificate provided for, and there having been a user of the franchises purporting to be invested in the association, the latter became a de facto corporation, and under the settled law of this court neither the eligibility of the directors nor the rightfulness of the existence of the corporation could be inquired into collaterally in this suit. Tarbell v. Page, 24 Ill. 46; Mitchel et al. v. Deeds, 49 Ill. 416; Thompson v. Candor, 60 Ill. 244.

In Mitchell v. Deeds, before cited, the court, page 422, said: "The law is well settled in this state, that, under the plea of nul tiel corporation, the plaintiff need only show an organization in fact and a user of corporate franchises."

So, by parity of reasoning, such organization in fact, and user, are all that is necessary to maintain a bill in equity against a mere stranger seeking to interfere with the property of such de facto corporation. Here it was indisputably shown that there was such an organization in fact, followed by user of corporate franchises. That was sufficient. So, also, it was shown that the directors were elected under color of authority and were acting as such. They were, therefore, de facto officers of the corporation. Their title to the office could not be

brought in question and decided collaterally in this suit. Lawson et al. v. Kolbenson et al., 61 Ill. 418, and authorities there cited.

Appellee had authority to exercise the right of eminent domain, but, by the statute prescribing the mode of its exercise, it could not have appellant's right of way condemned for even a qualified or conjoint use without describing it in the petition as such right of way, and alleging inability to agree as to compensation. This proceeding, which might, perhaps, have been lawful and proper but for circumstances which were studiously concealed, was for an inequitable purpose. It was designed and carried forward for the purpose of getting possession of the right of way, of which appellant was in quiet possession as owner, without making appellant a party or paying to it any compensation. No other object was intended by, and no other result could follow, the carrying the proceeding through to a finality. It was, in this view, a proper case for an injunction. In Goodenough v. Sheppard, 28 Ill. 81, it was held that a person in the quiet possession of real estate as owner may obtain an injunction to restrain others from dispossessing him by means of process growing out of litigation to which he was not a party. It does not lie with appellee to say, in justification of this inequitable proceeding, that the appellant was not so far rightfully organized or authorized to construct the railroad in question as to be capable of holding lands for the purposes of a right of way. This is a question solely between appellant and the persons from whom title was obtained, or between appellant and the people of the state, when proper proceedings shall arise to require its decision.

It is obvious, from the record, that the court below made inquisition into the rightfulness of appellant's corporate existence, and dismissed the bill for defects in its organization. This was error. The decree will be reversed, and cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.

Note. See, also, 1843, Quincy Canal v. Newcomb, 7 Metc. (Mass.) 276; 1846, Elizabeth City Academy v. Lindsey, 28 N. C. (6 Ired.) 476, 45 Am. Dec. 500; 1873, Stockton & L. G. R. Co. v. Stockton & R. Co., 45 Cal. 680; 1878, Alderman v. School Directors, etc., 91 Ill. 179; 1889, Golden Gate M. & M. Co. v. Joshua H. M. W., 82 Cal. 184; 1893, Crenshaw v. Ullman, 113 Mo. 633, 20 S. W. Rep. 1077. But see, 1885, Doboy & U. I. Tel. Co. v. D. E. Magathias, 25 Fed Rep. (U. S. C. C.) 697.

Sec. 178.

(b) Or crimes affecting the corporation.

SASSER v. THE STATE OF OHIO.1

1844. IN THE SUPREME COURT OF OHIO. 13 Ohio Rep. 453-489.

[These are writs of error to the court of common pleas of the county of Hamilton.

In the first of these cases the plaintiff was indicted for "having in his possession, and secretly keeping, a bank-note plate, for the purpose of striking and printing false and counterfeited bank-notes, to wit, false and counterfeited bank notes in the likeness and similitude of true and genuine bank notes of the Bank of Tennessee, of the denomination of $20," etc. The second count was the same, with the addition that the possession was for the purpose of printing counterfeited bank notes. At the October term, 1844, he was found guilty on the second count, and not guilty on the first, and sentenced, upon the second count, to imprisonment in the penitentiary for five years. A bill of exceptions was taken during the trial, from which it appears that the prosecuting attorney proved, by parol, that there was such a bank as the one named in the indictment, and that its bills, of the denomination specified, were current in Ohio. The plaintiff objected to this proof, and insisted that the act incorporating the Bank of Tennessee was the only evidence that could be introduced; which objection was overruled.]

BIRCHARD, J. *** Did the court err in admitting the testimony objected to? This presents a question not free from difficulty, and yet the decision below is believed to be consistent with the uniform and oftrepeated adjudications upon similar questions since the first organization of the state. The general rule is, that the best evidence must be given which the nature of the case admits of. The rule does not require that the strongest possible assurance of the point in question shall be given, but that no evidence shall be received of a character which presupposes that better and higher evidence is in the possession or power of the party offering it. Were these banks suitors in court, claiming the exercise of corporate rights, the offer by them of parol proof to maintain the right, unless it were a right acquired by prescription, would be within the rule, for it would carry a presumption against them, that, if produced, their charters would show that the franchise in question was not conferred. Hence the rule in Lewis v. Bank of Kentucky, 12 Ohio Rep. 151: "The corporators have full knowledge of their powers and capacity, and the means of establishing them." When they exercise powers under the authority of a written charter, the non-production of that charter and the attempt to supply

1 Statement of facts abridged. Arguments omitted, and part of opinion omitted.

it by parol evidence is an indirect admission that the charter is sufficient, and that, if they can not make out by parol a better one than exists on paper, they must fail. An analogous point was ruled by Lord Mansfield, in Roe v. Harvey, 7 Burr. 2484. No such implication necessarily arises when parol proof of the actual existence of a bank in a sister state is offered by a third party, and especially when offered by the public prosecutor against a person charged with counterfeiting the bills or plates of such bank, because the act of counterfeiting implies, on his part, an admission that there is such a bank, and that its genuine issues and plates are authorized and of value. It is irrational to presume that men will take the trouble to counterfeit paper which is wholly worthless. All men are presumed to act according to their interest. No one could have any interests in forging valueless notes. Rules of law are never founded upon unnatural premises. On the contrary, it is, in general, safe to abolish a rule, when the sound reason upon which it was established has ceased to exist.

Admitting the proposition, that if the bank notes in question were issued by an unauthorized bank they would be nullities, and that, in that case, the plates might be secretly kept without incurring the penalty of the law, it does not follow that the evidence offered below was incompetent. The rules of presumptive evidence apply to corporations as well as individuals, and a charter may be presumed from the long exercise of corporate rights. U. S. Bank v. Dandridge, 12 Wheat. 70. The proof offered in this case showed that paper of the description alleged to be counterfeited was current in Ohio, and reputed to be the paper of legally established institutions of Virginia and Tennessee. Proof that their paper had obtained general circulation and acquired universal confidence in a state like this, at a time when public attention is turned towards all corporations, both foreign and domestic, with eager and jealous scrutiny, certainly raised a violent presumption that the banks had a legitimate existence, and lawfully possessed the powers which they had exercised. Coupled with the other legal presumption, that no one will counterfeit the valueless paper of an unauthorized bank, and we think the proof, unrebutted, sufficient for the prosecution. This made out a prima facie case, and was ample to cast upon the accused the burden of proving that the laws of Virginia and Tennessee restricted banking generally, or by these institutions in particular. The People v. Davis, 21 Wend. 309, is a case in point. Davis was indicted for having in his possession a counterfeit note of the Morris Canal and Banking Company, and the question was whether the prosecution were bound to prove the existence of the company by the production of the charter, and it was held they were not-that they might prove it in the ordinary way, and "that secondary evidence, such as the acts and operations of the company, and the like, had been invariably received at the oyer and terminer." Is there any real danger in continuing this rule of evidence? It may be presumed that, if it were palpably mischievous, or, even by possibility, occasionally dangerous in practice, it would