GROSS PROCEEDS, RECEIPTS

The phrases, "gross income," "gross proceeds" and "gross receipts," are of equivocal import. Their construction and meaning will depend much upon the context and the special matter to which they are applied. (23 Am. & Eng. Ency. of Law,-2d ed., p. 159, and cases cited; 4 Words and Phrases, pp. 3174, 35013507, inclusive; 6 Words and Phrases, pp. 5639-5642.) In Commonwealth v. United States Express Co., 157 Pa. St. 579, the court held that a tax on gross receipts meant a tax upon the total receipts and not upon the net earnings or the gross earnings of the express company's business, less the amount paid to other companies for transportation services. In German Alliance Ins. Co. v. VanCleave, 191 Ill. 410, this court held that it appeared to be the intention under a certain law to levy a tax on the "gross income" of foreign fire insurance companies, and that this required such companies to pay a tax "on the gross receipts of their business." See, also, Goldsmith v. A. & S. R. R. Co., 62 Ga. 468; Railway Co. v. Shinn, 52 Ark. 93; People v. Roberts, 92 Pa. St. 407; Philadelphia & Reading Railroad Co. v. Commonwealth, 104 Pa. St. 80; People v. Morgan, 99 N. Y. Supp. 711; Remington v. Field, 16 R. I. 509; State v. Ill. Central R. R. Co., 246 Ill. 268, 269.

GROSS PROCEEDS, RECEIPTS OR INCOME.

The fact that the legislature by an act subsequent to the Illinois Central Railroad Company's charter, authorized that company to lease its lines does not take such lines out of the charter exemption with reference to taxation, provided the lines were such as were authorized by the charter; but the earnings of such lines, by whatever name called, are part of the gross "proceeds, receipts or income" of the road. State Board of Equalizations v. The People, 229 Ill. 461.

GROUND.

"Ground" most frequently means earth surface; but it also means the lower surface in the space to which the word re

"The definition of a guaranty, by textwriters, is, an undertaking by one person that another shall perform his contract or fulfil his obligation, or that, if he does ot, the guarantor will do it for him. A guarantor of a bill or note is said to be one who engages that the note shall be paid, but is not an indorser or surety. 2 Pars. on Bills and Notes, 117. If this be so, then he must be regarded as an original promisor, and this, we believe, is the doctrine of adjudged cases." Gridley v.

GUARANTY

Capen et al., 72 Ill. 13; Pfaelzer v. Kau, 207 III. 122, 123.

Daniel on Negotiable Instruments (section 1752) defines a contract of guaranty as follows: "A guaranty is defined to be a promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person, who is in the first instance liable to such payment or performance." Parsons on Contracts (vol. 2, p. 3), says: "Guaranty is held to be the contract by which one person is bound to another for the due fulfillment of a promise or engagement of a third party." Story on Promissory Notes says: "A guaranty, in its legal and commercial sense, is an undertaking by one person to be answerable for the payment of some debt, or the due performance of some contract or duty, by another person, who himself remains liable to pay or perform the same." In Dickerson v. Derrickson, 39 Ill. 574, this court, in speaking of a guaranty, says: "The contract of an absolute guaranty is, that if the principal fails to pay, the guarantor will. If it were not so, it would not be a guaranty, but an independent undertaking." See, also, Rich v. Hathaway, 18 Ill. 548; Abbott v. Brown, 131 Ill. 113. The guaranty of a note is not a guaranty of the payment of the note, but a guaranty of the collection of the note. A contract guaranteeing the payment of a note or debt, is an absolute contract. By it the guarantor undertakes, for a valuble consideration, to pay the debt at maturity, if the principal debtor fails to do so; and upon it, if the debt is not paid at maturity, the guarantor may be sued at once. But a contract guaranteeing the collection of a note or debt, is conditional in its character, and the guarantor thereby undertakes to pay the debt, upon condition that the owner thereof shall make use of the ordinary legal means to collect it from the principal debtor with diligence and without avail. Newlan v. Harrington, 24 Ill. 207; Day v. Elmore, 4 Wis. 190.

By some courts it seems to be held not only that the guarantor of the collection of the note or debt can avoid liability to pay until the impossibility of collecting

GUARANTY INSURANCE

the debt has been demonstrated by the prosecution of a suit to judgment and execution against the principal debtor without success, but that such prosecution is a condition precedent to the right of recovery against the guarantor, and that the fact of insolvency is no excuse for the failure so to prosecute. The better opinion, however, seems to be, that the insolvency of the principal debtor will excuse the failure to institute suit and obtain judgment; (1 Brandt on Sur. and Guar., section 98, and cases in note; Voorhies v. Atlee, 29 Iowa, 49; Durand v. Bowen, 73 Iowa 573); and such is the rule in this State as laid down in the case of Judson v. Gookwin, 37 Ill. 286. Dillman v. Nadelhoffer, 160 Ill. 124, 125.

Absolute or Contingent.

Where a guarantor undertakes to pay a specific sum of money in case a third party fails to do so, that constitutes an absolute guaranty. Where a guaranty is absolute, it is the duty of the guarantor to see to the payment of the money; no demand or notice of non-payment is necessary to fix his liability. It seems, however, that when the guaranty depends upon the happening of some contingent event, it is necessary, when the event has occurred, that notice should be given to the guarantor within a reasonable time. Dickerson v. Derrickson, 39 Ill. 577.

Relation Created.

The by-laws of an association providing that it "guarantees" a dividend of a fixed amount to stockholders does not, by the word "guarantees," create a relation of debtor and creditor between the association and its stockholders, but creates a charge upon all accruing profits at the stipulated rates. Cratty v. Peoria, etc., Ass'n, 120 Ill. App. 602.

GUARANTY INSURANCE.

"Guaranty insurance," in its practical sense, is a guaranty or insurance against loss in case a person named shall make a designated default or be guilty of specified conduct. U. S., etc., Co. v. First, etc.,

GUARDIAN AD LITEM

Bank, 233 Ill. 481; People v. Rose, 174 Ill. 313.

"The phrase guaranty insurance is not used with any hard and fast meaning. The term may include all insurance as being synonymous therewith, for insurance has for its purpose to guarantee against all forms of loss or pecuniary injury. (2 May on Insurance, 4th ed.,-sec. 540.) It has been stated to be generic in its scope and signification, embracing within it those subsidiary species of insurance contracts known as 'fidelity,' 'commercial' and 'judicial' insurance. (Frost on Guaranty Insurance,-2d ed.,-sec. 1.) Guaranty insurance, as ordinarily used and understood, is a guaranty of insurance against loss in case a person named shall make a designated default or be guilty of a specified misconduct." (15 Am. & Eng. Ency. of Law,-2d ed.,-note 1, p. 1; People v. Fidelity and Casualty Co. of New York, supra.) Guaranty insurance is a contract whereby one, for a consideration, agrees to indemnify another against loss arising from the want of integrity, fidelity or insolvency of employees and persons holding positions of trust, against insolvency of debtors, losses in trade, losses from non-payment of notes and other evidences of indebtedness, or against other breaches of contract. It includes other forms of insurance which are specifically classified, such as "fidelity guaranty," "credit guaranty," etc. (1 Joyce on Insurance, sec. 12.) This definition was quoted with approval by this court in People v. Rose, 174 Ill. 310. See, also, McCornack on Insurance, sec. 235; 1 Cooley's Briefs on the Law of Insurance, 236, 635; 17 Laws of England (Halsbury), 572. Surety insurance is generally used as synonymous with guaranty insurance. Frost on Guaranty Insurance,-2d ed.-sec. 3; Gagan v. Stevens, 9 Pac. Rep. 706; The People v. Potts, 264 Ill. 526, 527, 531.

GUARDIAN AD LITEM.

"A guardian ad litem has been defined to be a person, appointed by a court of justice to prosecute or defend for an infant in any suit to which he may be a

Pope-42

GUERRILLA PARTY

party." (10 Ency. of Pl. & Pr., p. 616.) Heppe v. Szczepanski, 209 Ill. 100.

GUARDIANSHIP.

* *

*

"Under the ancient Roman law the son who was delivered from patria potestas by the death of his father or grandfather remained under guardianship till an epoch which for general purposes may be described as arriving with his fifteenth year; but the arrival of that epoch placed him at once in the full enjoyment of personal and proprietary independence a prolongation of the patria potestas up to the period of bare physical manhood. It ended with puberty, for the vigor of the theory demanded that it should do so. Inasmuch, however, as it did not profess to conduct the orphan ward to the age of intellectual maturity or fitness for affairs, it was quite unequal to the purposes of general convenience; and this the Romans seem to have discovered at a very early stage of their social progress. One of the very oldest monuments of Roman legislation is the lexlætoria or plætoria, which placed all free males who were of full years and rights under the temporary control of a new class of guardians called curators, whose sanction was required to validate their acts or contracts. The twentysixth year of the young men's age was the limit of this statutory supervision; and it is exclusively with reference to the age of twenty-five that the terms 'majority and minority' are employed in Roman law. Privilege or wardship, in modern jurisprudence has adjusted itself with tolerable regularity to the simple principle of protection to the immaturity of youth both bodily and mental. It has its natural termination with years of discretion." Maine, Anc. Law, 160.

GUERRILLA PARTY.

(Span. guerra, war; guerrilla, a little war.) In military law. Self-constituted sets of armed men, in times of war, who form no integrant part of the organized army, do not stand on the regular payroll of the army, or are not paid at all, take

GUEST

up arms and lay them down at intervals, and carry on petty war, chiefly by raids, extortion, destruction, and massacre. Lieber, Guerr. Part. 18. See Halleck, Int. Law, 386; Woolsey, Int. Law, 299.

Partisan, free-corps, and guerrilla are terms resembling each other considerably in signification; and, indeed, partisan and guerrilla are frequently used in the same sense. See Halleck, Int. Law, 386.

GUEST.

A traveler who stays at an inn from day to day, for pay, and without a special contract to board for any definite time. If he is invited as a friend by the inn keeper, he is not a "guest" in the technical sense (Bac. Abr. "Inns," c. 5), and, if he stays under a contract for a definite time, he is not a guest, but a boarder. 5 Barb. (N. Y.) 560; 26 Vt. 332.

An innkeeper's "guest" is a traveller, who, by himself, or his beast, has been, however temporarily, accepted to, and remains under, hospitality within an inn or its curtilage. Calye's Case, 1 Sm. L. C. 141, and cases there collected: Strauss v. County Hotel Co., 53 L. J. Q. B. 25; 12 Q. B. D. 27: Add. C. 303.

Guest is a traveller or wayfarer, who comes to an inn and is accepted. Manning v. Wells, 9 Humph. (Tenn.) 748.

If a person goes to an inn as a wayfarer, and a traveller, and the innkeeper receives him into his inn as such, he becomes the innkeeper's guest. * Neither the length of time that a man remains at an inn, nor any agreement he may make as to the price of board per day, or per week deprives him of his character as a traveller and a guest, proIvided that he retains his status as a traveller in other respects. Norcross v. Norcross, 53 Me. 169.

Distinguished from Boarder.

A guest is a traveller or wayfarer; but a person who comes upon a special contract to board or sojourn at an inn, is not in law a guest, but a boarder. Chamberlain v. Masterson, 26 Ala. 377.

"The distinction between a guest and a boarder seems to be this: The guest

HABEAS CORPUS

comes without any bargain for time, remains without one, and may go when he pleases, paying only for the actual entertainment which he receives; and it is not enough to make a boarder, and not a guest, that he has stayed a long time in the inn in this way." Shoecraft v. Bailey, 25 Ia. 555.

GUIDON DE LA MER.

The name of a treatise on maritime law, written in Rouen-then Normandy -in 1671, as is supposed. It was received on the continent of Europe almost as equal in authority to one of the ancient codes of maritime law. The author of this work is unknown. This tract or treatise is contained in the "Collection de Lois Maritimes," by J. M. Pardessus, vol. 2, p. 371 et seq.

GUILTY KNOWLEDGE.

Knowledge that the property was stolen goods constitutes guilty knowledge. Huggins v. People, 135 Ill. 246.

GUN.

For the purposes of the Gun License Act, 1870 (33 & 34 V. c. 57), "gun," includes a firearm of any description, and an air-gun or any other kind of gun from which any shot, bullet, or other missile can be discharged (s. 2). A small toy pistol is a "firearm" within this definition. Campbell v. Hadley, 40 J. P. 756.

HABEAS CORPUS.

Blackstone, in speaking of the writ of habeas corpus ad subjiciendum, says: "This is a high prerogative writ, and therefore, by the common law, issuing out of the court of king's bench, not only in term time, but also during the vacation, by a fiat from the chief justice, or any other of the judges, and running into all parts of the king's dominions, for the king is at all times entitled to have an account why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted." 2 Bl. Com. 131.

HABEAS CORPUS

The habeas corpus ad subjiciendum is that which issues in criminal cases, and is deemed a prerogative writ which the king may issue to any place, as he has a right to be informed of the state and condition of the prisoner, and for what reasons he is confined. It is also, in regard to the subject, deemed a writ of right, that is, such an one as he is entitled to ex debito justitiae, and is in the nature of a writ of error to examine the legality of the commitment, and therefore commands the day, the caption and cause of detention to be returned. 4 Bac. Abr. 564.

The habeas corpus ad subjiciendum (so termed from the language of the writ, to undergo and receive all such things as the court shall consider of the party in that behalf), issues in criminal cases, and is deemed a prerogative writ which the king may send to any place, he having a right to be informed of the state and condition of every prisoner, and for what reason he is confined. It is also, in regard to the ubject deemed his writ of right, to which he is entitled ex debito justitiae, and is in the nature of a writ of error to examine the legality of the commitment, and therefore commands the day, the caption and the cause of detention to be returned. 1 Chit. Crim. Law, 120; 2 Tomlin's Law Dict. 63-64.

The proceeding in habeas corpus, says Mr. Justice Betts, "is an inquisition by the government at the suggestion and instance of an individual, but still in the name and capacity of the sovereign." Barry v. Mercein, 5 How. 108.

The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error to examine the legality of the commitment. The People v. Bradley, 60 Ill. 398, 399, 400, 401.

This is the most famous writ in the law; and, having for many centuries been employed to remove illegal restraint upon personal liberty, no matter by what power imposed, it is often called the great "writ of liberty." It takes its name from

HABEAS CORPUS

the characteristic words it contained when the process and records of the English courts were written in Latin:

Praecipimus tibi quod corpus A B in custodia vestra detentum, ut dicitur, una cum causa captionis et detentionis suae, quocunque nomine idem A B censeatur in eadem habeas coram nobis apud Westm. etc., ad subjiciendum et recipiendum ea, quae curia nostra de co ad tunc et ibidem ordinari contigerit in hac parte, etc.

There were several other writs which contained the words habeas corpus; but they were distinguished from this and from one another by the specific terms declaring the object of the writ, which terms are still retained in the nomenclature of writs, as, habeas corpus ad respondendum, ad testificandum, ad satisfaciendum, ad prosequendum, and ad facienum et recipiendum, ad deliberandum et recipiendum.

This writ was in like manner designated as habeas corpus ad subjiciendum et recipiendum; but, having acquired in public esteem a marked importance by reason of the nobler uses to which it has been devoted, it has so far appropriated the generic term to itself that it is now, by way of eminence, commonly called the "Writ of Habeas Corpus."

The date of its origin cannot now be ascertained. Traces of its existence are found in Y. B. 48 Edw. III. 22; and it appears to have been familiar to, and well understood by, the judges in the reign of Henry VI. In its early history it appears to have been used as a means of relief from private restraint. The earliest precedents where it was used against the crown are in the reign of Henry VII. Afterwards the use of it became more frequent, and in the time of Charles I. it was held an admitted constitutional remedy. Hurd, Habeas Corpus, 145.

In process of time, abuses crept into the practice, which in some measure impaired the usefulness of the writ. The party imprisoning was at liberty to delay his obedience to the first writ, and might wait till a second and third were issued before he produced the party; and many other vexatious shifts were practised to