People ex rel. Chicago & Iowa Railroad v. Glann

Citations

• 70 Ill. 232

Syllabus

<p>1. Mandamus—practice under act of 1873. Under the Practice act of 1873, the petition, in the case of a mandamus, takes the place of the alternative writ, becomes the foundation of all subsequent proceedings, and must, consequently, be governed by the same rules of pleading as are applicable to declarations in other cases at law.</p> <p>3. Same—lies only in ease of a clem• right. A writ of mandamus will be awarded only in a case where the party applying for it shows a clear right to have the thing sought by it done, and by the person or body sought to be coerced.</p> <p>3. Same—petition. The petition for a mandamus must show on its face a clear right to the relief demanded, and it must distinctly set forth all the material facts on which the relator relies, so that the same may be admitted or traversed.</p> <p>4. Pleading—as to condition precedent. Where the consideration of the defendant’s contract is executory, or his performance is to depend on some act to be done or forborne by the plaintiff, or on some other event, the plaintiff must aver the fulfillment of such condition precedent, or must show some excuse for the non-performance.</p> <p>5. Same—allegation of performance. Where a right claimed is dependent upon the performance of conditions precedent, it is not sufficient to state a performance in all things generally, but the pleader should allege specially that each condition was performed and the manner of its performance.</p> <p>6. Municipal subscription—may be made upon conditions. Although the law authorizing a municipal subscription to a railway company may be silent on the subject, yet the municipality voting may lawfully impose conditions upon which the subscription is to depend, and the corporate bonds to be issued, and until such conditions are complied with, the courts will not compel the issuing and delivery of the bonds by mandamus.</p>