Volume 135 — Illinois Reports

<p>Appeal from the Circuit Court o'f Cook county; the Hon. Oliver H. Horton, Judge, presiding.</p>

J. C. Knickerbocker, Judge, presiding. This was a petition filed in the probate court of Cook county, by Ellen Lynn, administratrix of the estate of George Lynn, deceased, to sell the east half of the south-west quarter of section 16, township 40, north, range 12, east, in Cook county, to pay the debts which had been probated against the estate of George Lynn, deceased.

. Cyrus Epler, Judge, presiding. This was a bill by Elizabeth Gilbert, for the assignment of homestead and dower in the lands of which John W. Jones-died seized.

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Piatt county; the Hon. Edward P. Vail, Judge, presiding.</p>

Jacob Fouke, Judge, presiding. This was case, to recover damages for personal injuries, and for injuries to a team of horses and a wagon. The injuries were received at a crossing of a public highway and the railroad of appellant. The declaration contained five counts.

<p>Writ of Error to the County Court of Hancock county; the Hon. Lawrence Y. Sherman, Judge, presiding.</p>

<p>1. Judicial sales—time of taking out deed—limitation—the statute construed—as to sales prior to the act. Section 30, chapter 77, oí the Revised Statutes, limiting the time of taking out deeds upon certificates of purchase issued upon sales on execution or under decrees, to five years from the expiration' of the time of redemption, applies to sales made before its passage in respect of which the time to redeem had not then expired.</p> <p>2.' After the limitation has run against the right to take out a deed, • the certificate will become a nullity, and a court of equity can not compel the making of a deed to the purchaser or his assignee by the officer whose duty it is to make deeds.</p>

Wbit of Bbbob to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. Alfbed Sample, Judge, presiding.

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit-Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Wayne county; the Hon. ■0. G. Boggs, Judge, presiding.</p>

<p>1. Wnms—rule of construction. The intention of the testator is to be sought for and found in the provisions of Ms will, taking into consideration all its parts, and giving the language the sense in which it was used by him. For this purpose the court will look to every provision of the will, the better to understand the plan of distribution .adopted, and the purpose of the testator in making a particular provision.</p> <p>2. Same—quantity of estate taken by the executor or trustee. The general principle applicable to the execution of trusts by an executor is, that he, as trustee, will take exactly that quantity of interest which the purpose of the trust requires. If the fee is required, it will be taken; but if a less estate will suffice, that only will vest.</p> <p>3. Same—direction to sell lands—and distribute proceeds—is a devise of money, not of land. Where a testator directs the sale of his lands and other estate by his executor, and a distribution of the proceeds, the devisees will take no interest in the land. Such a devise is of money, regardless of the fact whether the legal estate in the land is devised to the executor or not.</p> <p>4c. Same—election to take land—instead of the proceeds. Where land is devised to be sold and the proceeds distributed, the beneficiaries of the fund thus to be raised may elect to take the land itself; but such election, to avail, must be the act of all the beneficiaries.</p> <p>5. Same—time of distribution—who may take, at the period of distribution—vested or contingent interest. A testator, by his will, after giving all his estate to his wife during her life or widowhood, directed that upon her death or marriage all his estate be sold by his executors, and that from the proceeds they pay a certain sum to each of two grand•children, if of age, and if not, to their guardians; and provided that in case of the death of either of the grandchildren, the sum, go devised to him or her should be distributed among the testator’s children: Held, that the payment to the grandchildren or their guardians was to be made after the sale of the estate and its conversion into money. If the grandchildren should die before the sale, their legacies would lapse •or fall into the general fund devised to the children of the testator.</p> <p>6. In the same will, after providing for distribution as above set forth, the testator directed his executors to distribute the balance of his estate among his six living children, “or their heirs:” Held, that the only persons entitled to share in the distribution were such of his children as might be living at the time appointed for distribution, which was on the. termination of the prior estate in the widow, and the heirs of such of the children as may have died in the meantime. The testator’s •children did not take a vested interest, but only a contingent one.</p> <p>7. In such case, one of the daughters of the testator, by warranty ■deed, conveyed her supposed interest in the estate of the testator, and died before the period for distribution arrived: Held, that the grantor had no interest to convey, and that her heirs took her share in the estate, not as heirs, but as purchasers, under the will, and hence were not •estopped by the covenants in her deed.</p>

<p>1. Fraudulent conveyance — deed absolute in form, but intendedT only as a security. A conveyance of property, absolute on its face but really intended only as a mortgage or security, while good between the-parties, may be fraudulent as to creditors of the grantor.</p> <p>2. The fact that an assignment of letters patent was in form absolute when in reality it was only intended as a security, will render the transfer only constructively fraudulent. If, however, the assigneeshould attempt to justify the assignment as absolute when it is not, this-will afford strong evidence of actual fraud.</p> <p>3. The owner of letters patent made an assignment, unconditional upon its face, but intended merely as a security for moneys advanced and to be advanced. No amount was fixed for the price of the patent. The assignment was duly recorded in the patent office: Held, that the natural and necessary effect of the transaction was to mislead, deceive and defraud creditors of the patentee, and that such transfer was in substance and in fact the creation of a secret trust for the benefit of the assignor.</p> <p>4. An insolvent debtor transferred certain letters patent to another, who had from time to time loaned him money. The assignment was-unconditional on its face, but was in reality by way of security for the moneys loaned and for future advances. The assignee transferred the patent to a corporation, controlled by the debtor, in exchange for capital stock. The testimony of the assignor and assignee differed materially, and the assignee denied notice of the assignor’s insolvency, and fabricated evidences of indebtedness from the assignor to himself, and by his pleading and testimony set up the claim of absolute ownership-to the stock :' Held, that the facts showed that the assignee was guilty of actual fraud in the transfer.</p> <p>5. Same—secret trust reserved. Although an assignment- of a property right be made upon a valuable and ample consideration, without any intention to defraud any one, yet if there be a secret trust reserved, not disclosed by the writing, the law will treat the transaction as lacking the element of good faith, and' conclusively infer fraud. Such a transfer is at least constructively fraudulent as to creditors of the assignor.</p> <p>6. Same—as to consideration paid—whether the grantee or assigneeprotected. Where a conveyance or transfer of property is set aside solely upon the ground that it is constructively fraudulent as to creditors, it •will be upheld, in equity, to the extent of the actual consideration, and .set aside only as to the excess.</p> <p>7. Same—and herein, of following the fund, in case of further investment. In the case of a fraudulent transfer of a property right, and the assignee transfers it to a corporation for shares of stock therein, the court, on creditor’s bill, ■will subject the shares of stock to sale for the payment of such creditors; and when the assignee of the patent is a participator in the fraud, he will not be protected even as to the consideration actually paid to the assignor. No rights can be acquired under a void conveyance.</p> <p>8. Same—the assignee participating. A transfer of property must not • only be upon a good consideration, but it must also be bona fide. Even though the grantee or assignee pays a valuable, adequate and full consideration, yet if the grantor or assignor sells for the purpose of defeating the claims of his creditors, and such grantee or assignee knowingly assists in effectuating such fraudulent, intent, or even has notice thereof, he will be regarded as a participator in the fraud. The law never allows one man to assist in cheating another.</p> <p>9. Practice in chancery—a single decree in several cases. Four . creditors’ bills against the same defendants, involving substantially</p> <p>the same issues, were, by consent, heard together upon the same evidence, though the causes were not consolidated, and without objection ■one decree was entered applying to all the cases: field, that correct practice required a separate decree in each case, but as no injury re- . suited, the irregularity afforded no ground of reversal.</p>

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of DeKalb •county.</p>

<p>Writ of Error to the Circuit Court of Henry county; the Hon. John J. G-lenn, Judge, presiding.</p>

<p>1. AiiDegations and PROOFS—variance. In a suit for the recovery of damages for a personal injury resulting from the alleged negligence of the defendant, it was held, that when the transaction out of which the controversy arises is the same, and the substantial cause of damages is the same, a variance will be regarded as immaterial.</p> <p>2. Same—as to character of negligence alleged and proven. In such case, the proof must support the allegation of negligence, as charged in the declaration. It will not avail the plaintiff to charge in the declaration a particular negligence, and prove another and different negligence.</p> <p>3. In this case the action was by a servant against his employer, for 1 a.personal injury. The declaration charged that defendant’s foreman, engaged in blasting rock, ordered and directed the plaintiff to clean out a hole which had been drilled in a rook, in which was concealed an explosive substance, which exploded and injured the plaintiff while-he was at work in executing the order of his foreman. The proof showed that while the injury was not received in carrying out a specific direction to clean out a hole already drilled, it was received while the servant was engaged in the performance of a specific command ' to drill in a certain place where a hole had been drilled and filled upi Held, that there was no substantial variance.</p> <p>4. It appeared that the hole had been drilled in a rotten rock in a. quarry, and an explosive put therein, which had failed to go off. The hole was afterward filled with gravel and pieces of stone, and tamped, so that the existence of a drilled hole was not apparent. The foreman of the quarry, having knowledge of the facts, directed a servant to drill at a designated spot, which was where the hole had formerly been drilled: Held, no substantial variance, in such case, to aver that the servantwas directed to drill down and clean out a hole that had already been drilled, because such was the intent and substance of the order given.</p> <p>5. Evidence—relevancy — dividing recovery with attorneys. In an action on the case by a servant against his master, to recover damages for a personal injury received from negligence while engaged at work, the defendant offered to prove that the plaintiff had agreed with his. attorney to give him a share of the judgment recovered, as compensation for his services, which the court refused to admit: Held, that the evidence was properly refused, as not bearing on the issue being tried.</p>

<p>1. Taxation and tax titles—certificate of levy by towns, etc.—at what time to be filed—the statutes considered. Under section 122 of the Revenue act of 1871-72, providing that the proper authorities of towns, townships, districts, incorporated cities, towns and villages shall annually, on or before the second Tuesday in August, certify to the county clerk the several amounts which they require to be raised by taxation, a tax extended on a certificate filed after that time is void.</p> <p>2. This ruling is based on the law as it stood before the amendment of section 191 of the same act, made on May 3, 1873. The amendatory act of 1873, however, curing merely formal defects and irregularities not affecting the substantial justice of the tax, not being retrospective in its operation, has no application to taxes levied for the year 1872.</p> <p>3. Same—whether township tax was extended upon a certificate filed in proper time—presumption. Where a certificate of the amount of taxes required to be levied for township purposes, filed after the time limited by the statute, is found in the office of the county cle;-k, with that officer’s file mark indorsed thereon, this will afford prima facie evidence that the township taxes for that year were extended on such certificate. If there was another certificate, legal in form and substance, it should have been shown in support of the levy.</p> <p>4. Same—judgment for taxes—conclusiveness—presumption—burden of proof. There is no presumption of law arising from the fact of the rendition of judgment against land for taxes, that the owner appeared and contested the right to such judgment.</p> <p>5. The rule that a judgment for taxes is conclusive on the land owner is applicable only to a case where there has been a trial on the merits, the court having jurisdiction of the person and subject matter of the .suit.</p> <p>6. Where the owner of land appears and objects to the rendition of judgment against his property, he will be estopped by the judgment, and can not attack the same collaterally, except for want of jurisdiction; but if he does not appear and resist the application for judgment, he will not be concluded by the judgment.</p> <p>7. The burden of proof rests upon the party claiming under a judgment for taxes, to establish the affirmative facts, to show that the other party is estopped by the judgment, and not upon thé latter to prove the negative of that proposition.</p> <p>8. Cloud upon title—setting aside tax sale—-upon ierms—roZe of interest. Where a tax deed is set aside as a cloud on title, the holder of ■such deed is only entitled to the sum paid by him, with six per cent interest thereon. When money is required to be refunded, a court of ■equity seldom requires, in the absence of a contract to the contrary, a .greater rate of interest than six per cent, or, the rate fixed by statute.</p> <p>9. Construction oe statutes—whether retrospective. The general rule applicable to all laws is, that they are to be regarded as prospective, only, unless the legislative intention that they should have a retrospective operation is made manifest by the most clear and unequivocal language.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Egbert Jamieson, Judge, presiding.</p>

<p>Wbit of Ebbob to the Circuit Court of Cook county; the Hon. Mubbay F. Tuley, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. William Marsh, Judge, presiding.</p>

C. C. Boggs, Judge, presiding.' On July 15,1885, Adolphus Miller filed his bill against Cook ■and Tanner, alleging complainant had an interest in 16Of- feet off of the west end of lot 48, block 7, in Mt. Vernon, Illinois, -as mortgagee of D. 0.

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook -county; the Hon. Henry M. Shepard, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District;—„ heard in that court on appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Criminal law—buying stolen property for gain—elements of the offense. By the Criminal Code (secs. 239 and 241) the receiving or buying of stolen property, or aiding in concealing the samé, for gain, or to prevent the owner from repossessing himself thereof, with knowledge that the property had been stolen, is made a substantive crime, subject to punishment, without reference to the trial or conviction of the person committing the larceny.</p> <p>2. Same—of the indictment■—and proof thereunder—for buying stolen property. On indictment for buying stolen property for gain, the name of the thief, or of the person from whom the defendant received or bought the property, not being matter necessary to the identification of the offense, need not be alleged or proved.</p> <p>3. But when the pleader, although unnecessarily, alleges the commission of the larceny or burglary or robbery by a particular person, or that the property was bought or received of a particular person, the allegation becomes matter of description, and must be proved as laid.</p> <p>4. Same—buying stolen properly—guilty knowledge on the part of the buyer. To convict a party for buying stolen property for his own gain, knowing the same to have been stolen, there being no count for concealing or aiding in conceab'ng the property, it is necessary for the People to prove a guilty knowledge of the defendant, at the time of his purchase, that it was stolen.</p> <p>5. Knowledge that property has been stolen may be shown by proof of attending facts and circumstances from which that inference arises. It may be shown by proof that the purchase was for much less than the real value of the property, that the party denied that the property was in his possession, or that he concealed it. So it may be shown by his failure to make reasonable explanation, the evil reputation of the person from whom purchased or received, and the like.</p> <p>6. The knowledge of the theft need not be that actual or positive knowledge which one acquires from personal observation of the fact. It is sufficient if the circumstances be such accompanying the transaction as to make the accused believe the goods had been stolen.</p> <p>7. The knowledge of the accused, in this sense, is the gist of the offense, and must be found by the jury as a fact. In determining whether the fact'existed, the jury will be justified in presuming that the accused acted rationally, and that whatever would convey knowledge or induce belief in the mind of a reasonable person, would, in the absence of countervailing evidence, be sufficient to apprise him of the like fact, or induce in his mind the like impressions and belief.</p> <p>8. Same—possession of stolen properly—as evidence of guilt. Where a person almost immediately after a burglary and larceny was found in the possession of the stolen property, the presumption of fact arising from such possession, unexplained, would warrant his conviction of the burglary and larceny.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on writ of error to the Circuit Court of Montgomery county; the Hon. Jesse J. Phillips, Jucfge, presiding.</p>

Geoege W. Hebdman, Judge, presiding. Peter Roodhouse died intestate on June 9, 1879, in Greene county, Illinois, leaving him surviving, Harriet Roodhouse, his widow, and two sons, Harry W. Roodhouse (appellee herein) and Benjamin T. Roodhouse, as his only heirs-at-law. The first named son was the issue of a former marriage, and was twenty-one years of age, and the other son was the issue of his last marriage, and was about six years old.

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Mason county; the Hon. Lyman Lacey, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.</p>

<p>1. Administration of estates—who may administer —husband on wife’s estate—the.statute construed'. Section 18 of chapter 3 of the Revised Statutes, relating to the administration of estates, gives the husband the right to administer upon the estate of his deceased wife, although' he may have, by post-nuptial contract, released and relinquished all his rights in her estate. The word “shall” in that section is mandatory, unless’the husband has waived his right or is disqualified.</p> <p>2. If, however, the husband applying for letters on his deceased wife’s estate is insane or a non-resident of this State, or otherwise disqualified to act in the capacity of administrator, it is made the duty of the court to refuse such letters. But the mere fact of want of a personal pecuniary interest in the estate does not render him perse incompetent.</p> <p>3. Construction of statutes—the word “shall"—when mandatory Where the word “shall” is used in a statute, and a right or benefit to any one depends upon giving it an imperative construction, then it is to be regarded as peremptory.</p>

Wbit of Ebbob to the Circuit Court of Cook county; the Hon. Muebay F. Tuley, Judge, presiding.

<p>Laches—asserting a trust•—which had been concealed. Where the existence of a trust was fraudulently concealed by the trustee from the heirs of the cestui que trust for over thirty years, a delay of six months after discovery of the trust and the fraud, before instituting a suit for the enforcement of the trust, was held not such laches as to bar equitable relief.</p>

<p>1. Contbact—lease—sale of underlying coal—and lease of surface ground—limitation as to time for removal of the coal. The owner of a tract of land sold the coal under the same for a stipulated sum, reserving no royalty, and to enable the purchaser to mine and raise the coal leased to him a certain portion of the surface of the land for a term of years, unless the coal should be sooner exhausted, in which event said lease and the right to mine said coal should cease and expire : Held, that the grantee of the coal, and his assigns, had the whole term prescribed in the lease in which to remove the coal underlying the lessor’s lands, without limitation or restriction.</p> <p>2. Where the owner of coal land, for a sum in gross, sells all his right to the coal underlying the land, and grants a fixed time within which the coal may be removed, the purchaser of the coal or his assigns, by failing to remove the same as soon as he might, and availing himself of the time limited to him, is guilty of no fraud upon the rights of his vendor.</p> <p>3. Injunction—to restrain a violation of contract—as, in respect to the use of leased premises. Where a contract of leasing is certain, and the use of the demised premises for a specified purpose is clearly fixed by the agreement of parties, the appropriation of the premises to a use inconsistent with that for which they are demised will frequently afford ground for the interposition of a court of equity, byway of injunction. When the use to which the premises are sought to be appropriated is inconsistent with the purposes for which they were let, and the change will operate to the injury of the lessor, the aid of such court mayproperly be invoked.</p> <p>4. Courts of equity will frequently interpose by injunction, and indirectly enforce specific performance of purely negative covenants annexed to or contained in contracts or leases, by prohibiting their breach, and will entertain bills for injunction to prevent their breach, although a violation of the covenants will occasion no substantial injury, or though the damages, if any, be recoverable at law.</p> <p>5. But where the parties have not fixed, in their agreement, by express covenant, what shall not be done, equity proceeds only to prevent irreparable injury. If the party does not see fit to expressly stipulate against the act in his contract, a court of equity will not, by implication, insert it, and then enforce it, unless substantial injury is thereby to be prevented.</p> <p>6. So where a land owner sold the coal underlying the land, and leased a portion of the surface to the purchaser for a fixed term of years, in which to sink pits or shafts to successfully mine and remove the coal, the lease or contract containing no covenant or condition not to appropriate the leased premises to any other use or purpose, it was held, that a court of equity would not enjoin the lessee or his assigns from using the shafts, etc., on the demised premises, for raising coal mined on adjacent lands, no injury being shown as likely to result from such other use.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Egbert Jamieson, Judge, presiding.

William H. Snyder, Judge, presiding. This was a bill for an injunction, by appellee, against appellants, filed in the circuit court of Madison county.

<p>Appeal from the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. O. H. Horton, Judge, presiding. ■

Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Ogle county; the Hon. J. H. Cartwright, Judge, presiding.

<p>1. Perjury—authority to administer the oath—jurisdiction of the proceeding—both essential. There is no perjury in false testimony alleged to have been given under the sanction of an oath, unless such oath was administered by some one having legal authority to administer it; and the case or proceeding in which the oath was taken must be one of which the tribunal or magistrate had jurisdiction.</p> <p>2. Same—of the indictment—averment of such authority and jurisdiction. Jurisdiction being an element without which there can be no perjury, it must appear with certainty, from the indictment, that there . was jurisdiction; but this may be done either by direct averment that' there was jurisdiction, or by the statement of facts from which the court can see there was jurisdiction.</p> <p>3. Jurisdiction, and authority to administer the oath, must be expressly averred in the indictment, or, in the absence of such express averment, such facts must be set out as will make them judicially appear; and the two things thus stated are alternative ones, and the indictment will be good if it contains either, but it néed not contain both.</p> <p>4. An averment in an indictment for perjury, that the police magistrate before whom the defendant testified, “then and there had full power and Authority to administer the said oath to the said F. M. in that behalf,” by necessary implication amounts to an averment that the police magistrate had jurisdiction.</p> <p>5. It is a principle of pleading, that whatever is included in or is necessarily implied from an express allegation need not be otherwise averred. So an averment of the power and authority of a justice of the peace to administer an oath to a witness on the trial of a cause, necessarily implies that the justice had jurisdiction to try the case.</p> <p>6. An allegation in an indictment for perjury, that the proceeding in which the false testimony was given was “a certain complaint, in due form of law, against F. M., for bastardy, before then duly made by one N., was duly depending,” shows sufficiently that the proceeding was a prosecution of F. M. under the Bastardy law.</p> <p>7. Same—defects in proceeding—in respect of which perjury is assigned—waiver. Although a tribunal must have jurisdiction of the cause or proceeding before perjury can be committed therein, yet when there is a defect which renders the proceeding voidable, only, and such proceeding is amendable, or when the defects are waived by the parties and the cause is heard on the merits, then perjury may be committed.</p> <p>8. So where the complaint in a proceeding in bastardy is so defective as not to justify the issuing of a warrant, yet if the defendant makes no motion to dismiss by reason of the defects, and goes to trial on the merits, he may commit perjury as a witness in the cause by giving false testimony.</p> <p>9. Same—evidence—perjury—as to testimony in a bastardy proceeding. A defendant, on his trial on a charge of bastardy, was sworn in behalf of the prosecution, and on his examination in chief denied having had any carnal intercourse with the prosecuting witness. On the next day, without having been sworn again, he testified in his own behalf, still denying such intercourse. He was indicted for perjury in respect of his . testimony on his first examination, and on the trial under the indictment the court allowed the People to prove his denial on the second examination: Held, that- while such evidence was not admissible as proof of a substantive crime, there was no error in admitting it as showing that the defendant made no retraction during his examination.</p> <p>10. Where one is indicted for perjury in denying, on his trial for bastardy, that he had sexual intercourse with the prosecutrix, all the facts and circumstances tending to show such sexual intercourse are admissible against the defendant, notwithstanding they may also tend to prove other offenses, as, seduction and an attempt to commit abortion.</p> <p>11. Bastaiidy—of the complaint—its requisites, etc. Under the statute, and section 6, article 2, of the constitution, protecting from unreasonable arrests, the complaint in a bastardy proceeding must be made by the mother, in case a child has been born, or, when made during pregnancy, the woman must allege that she is unmarried, and that she is pregnant with a child, which, bylaw, would be deemed a bastard, and she must accuse some person with being the father of such child, and such complaint must be in writing, and sworn to by her.</p> <p>12. From a statement in a complaint in bastardy “that said child is likely to be born a bastard,” an implication arises that the mother is unmarried; but such implication is not a necessary one, as a child bom in wedlock may, under some circumstances, be a bastard.</p> <p>13. A complaint in bastardy, as follows: “The complaint of N. B., in said county, an unmarried woman, before O. D., one of the justices, etc., under oath, who says that she is now pregnant with a child, and that such child is likely to be born a bastard, and that F. M., of, etc., is the father of said child,” and signed and sworn to, is insufficient to authorize the issuing of a warrant against the defendant.</p> <p>14. All of such complaint preceding the words “who says,” is mere recital, and forms no part of that sworn to, and, taken as a whole, fails to show probable cause for the arrest of any one.</p> <p>15. Same—amendment of complaint. A prosecution under the Bastardy act is a civil and not a criminal proceeding, and is therefore within the statute allowing amendments. The complaint, being amendable in form or substance, is not void, however defective it may be.</p> <p>16. Same—evidence—on the question of sexual relations. The prosecutrix testified, in respect of a charge of bastardy, that she became pregnant by the defendant on April 20, 1887. The defendant denied having had sexual intercourse with her, and called a young man, who testified that he first became acquainted with the prosecutrix in the fall of 1888, and that between the 20th of March and the 20th of May following he had sexual intercourse with her three or four times, but he could not fix the dates: The court refused to permit this witness to state, in answer to questions, whether or not his-acquaintance with the woman continued right along from the fall of 1888 until the 20th of March-following, or whether or not he met her only occasionally during the intervening time: Held, that the court erred in refusing to allow the questions to be answered.</p> <p>17. When pregnancy of a woman is relied on as tending to prove the sexual intercourse of the defendant with her on a certain day, any circumstances tending to show that her condition might have been caused by sexual intercourse with other men are'properly admissible on the other side. Therefore, it is error to refuse to allow a witness to testify that about the time of the alleged pregnancy he saw such woman out late at night with men and boys.</p> <p>18. On an issue involving the question whether the defendant had sexual intercourse with a young woman, when it was shown as a circumstance against him that he bought her a corset, it was held, that it was competent for him to show the fact that the mother of the young woman had sent an order to the girl’s brother, requesting him to get a corset for his sister, and that, being unacquainted with corsets, he got the defendant to get it for him. In such case, what passed between the defendant and the girl’s brother was a part of the res gestes, and admissible in evidence.</p> <p>19. Evidence—conversations. After a witness had testified to some damaging admissions of a defendant in a certain conversation, the defendant called another witness, who testified that he was present at such conversation and heard all of it, and that no such statements as those sworn to were made: Held, error to refuse to permit the witness to answer whether, if any such conversation as that detailed had taken place, he would have heard it.</p> <p>20. Same—cross-examination—latitude in criminal cases. A liberal latitude in cross-examination should be allowed to a defendant in a criminal case, especially so in regard to the testimony of the principal witness against him.</p>

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the County Court of Jasper county; the Hon. Joseph B. Crowley, Judge, presiding.

<p>Writ of Error to the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. 0. H. Horton, Judge, presiding.

Writ of Error to the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding. This writ of error was sued out to reverse a decree of the ■circuit court of Cook county, assigning dower in a lot of ground fronting twenty feet and four inches on Dearborn street, in Chicago, and being a part of lots 1 and 2, of block 57, in the ■original town of Chicago, to Maria P. Storey, the defendant in error.

<p>Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Kane county; the Hon. Isaac G. Wilson, Judge, presiding.</p>

Thomas M. Shaw, Judge, presiding. This is a bill in chancery, filed by the school directors of New Union District No. 2, which includes territory in# four townships,—i. e., in township 21, north, range 4, west; township 21, north, range 5, west; township 22, north, range 4, west; and township 22, north, range- 5, west, in the counties of Logan, Mason and Tazewell,—and Isaac Brown and Andrew Jacobs, tax-payers residing in said district, against the school directors of Union…

<p>Writ of Error to the Circuit Court of Cook county; the Hon. O. H. Horton, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of McLean county; the Hon. Alfred Sample, Judge, presiding.

<p>Writ of Error to the Circuit Court of McDonough county ; the Hon. Charles J. Scofield, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook eounty; the Hon. J. S. Grinnell, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. O. H. Hoeton, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Cass county.</p>

<p>Wbit of Ebbob to the Criminal Court of Cook county; the Hon. B. W. Clifford, Judge, presiding.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. J. B. Hay, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that 'court on appeal from the Circuit Court of Cook county; the Hon. R. S. Tuthill, Judge, presiding.</p>

Egbeet Jamieson, Judge, presiding. On the 16th day of April, 1889, the following contract was executed by Alexander S. Lieb and James R. Lane, and concurred in as to block 18 therein described by Abram Lesser, to-wit: “Chicago, April 16, 1889. “The following described real estate, to-wit, blocks 17, 18 and 19, of Jones’ subdivision of the south-west quarter of section 29, township 38, range 14, east, (south-east comer of Ashland avenue and Seventy-fifth street,) comprising…

<p>Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.</p>

Arthur .A. Smith, Judge, presiding. This was an application by Robert McKay, administrator of the estate of Mary Ann Riley, deceased, to the county court of, Knox county, for a decree directing a sale of real estate belonging to the estate of the intestate, for the payment of debts.

<p>1. ■ Elections—contest of election—of the petition—sufficiency. A petition in a contest of an election for the office of county treasurer, in regard to illegal votes alleged to have been cast for the defendant, stated that two persons named, of different election districts, who were not legal voters, voted for the defendant; that at another district the persons voted illegally for the defendant, “and that at some of the precincts and districts of said Adams county other illegal votes tiian those above named were cast by persons not legal voters, for the defendant, for said office of treasurer, and counted by the election judges for him Held, that the allegation as to “other illegal votes” was too general, and would have been bad on demurrer, but by answering, and denying such allegation, the defendant waived the objection to the defect.</p> <p>2. The words “other illegal votes,” plainly signify illegal votes different from those already specified in the petition, and additional to them; and such illegal votes may be shown, though cast at the election districts particularly named.</p> <p>3. Same—irregularities—whether ground for rejection of entire poll. The provisions of the statute as to the manner of conducting the details of an election are not mandatory, but directory, merely, and irregularities in conducting an election and counting the votes, not proceeding from any wrongful intent, and which deprive no legal voter of his vote, and do not change the result, will not vitiate the election, or justify the rejection of the entire poll of a precinct.</p> <p>4. At a polling place one of the judges of election made at least ten mistakes in numbering the ballots, but the evidence showed it was purely accidental, and from a lack of memory. The election officers, after the close of the polls, took the ballots to a room other than that in which the election was held, and there canvassed the votes. There were other similar irregularities, none of which appeared in any manner to affect the result, and there was no proof of fraud: Held, that these irregularities did not justify the rejection of the entire vote cast, on a contest of the election.</p> <p>5. Same—citis&nship—right to vote—under constitution of 1848. A person alien born, who was never naturalized, but a resident of this State at the adoption of the constitution of 1848, though under twenty - one years of age on April 1, 1848, is not entitled to vote in this State under the constitution of 1870.</p> <p>6. Same—being drafted into the army—does not confer citizenship. The fact that one of alien birth was wrongfully drafted into the army during the late war, and furnished a substitute, does not constitute him .a legal voter or make him a citizen.</p> <p>7. Same—evidence of right to vote•—declarations of the voter. The •declarations of voters, for the purpose of showing they are not qualified to vote, if made after voting, are inadmissible, but if made at or prior to the election they are competent testimony,—and this though not .accompanied by any act.</p> <p>8. Same—burden of proof on question of citizenship. Where one assumes to prove that another person is not a citizen of this State, the</p> <p>, burden of proving a negative is necessarily imposed on him who raises the question of citizenship. The one so questioning the right is not required to produce full and conclusive proof, but is only bound to introduce such proof-as renders the existence of the negative probable, and when that is done it is deemed sufficient to shift the burden of proof to the opposite party.</p> <p>9. So where the proof shows that a person was born in Prussia, and ■emigrated to this country after reaching manhood, this will be sufficient, prima facie, to show alienage, and to shift the burden of showing ■citizenship upon the. party asserting it. If such person was of American parentage, though born abroad, that fact should be shown by him.</p> <p>10. Same—naturalization—must apply in open court. Naturalization papers issued to an alien by the clerk of a court without any order of court, and when it is shown that the alien never applied for them in ■open court, as required by law, are void, and confer no right to vote. And naturalization papers issued by a justice of the peace are also void.</p> <p>11. Same—naturalization of the father—as affecting the status of the •son. In order that the naturalization of a parent shall be effective to invest his son with citizenship, two conditions must exist at the time •of such naturalization, viz.: the child must be under twenty-one years of age, and must also dwell in the United States.</p> <p>12. Same—and of a step-father—effect of his naturalization. A per.son born in Germany was brought to this country by his mother in 1854, he then being about one year old. His mother was married to K., also of foreign birth, in 1854, who procured naturalization papers in 1858 : Held, that this naturalized the step-son of K., under the act of Congress of February 10, 1885.</p> <p>13. Same—presumption—that the father was naturalized•—from the son having voted. Mere proof that a person of foreign birth came to this country with, his parents, and that he himself has not been naturalized, is not sufficient to overcome the presumption of such person’s Tight to vote, arising from his having voted. In such case it will be presumed that the voter’s father was naturalized.</p> <p>14. Same—burden of proof—to show the naturalization of the father. If a person of foreign birth claims the right to vote on the ground of ¡ his father’s naturalization, he will not be required to show such natu- • ralization until the strong presumption that he has voted legally and. has not committed a crime is rebutted by the introduction of evidence tending to show the father was not naturalized.</p> <p>15. Same—naturalization of the father—circumstances to exclude the presumption. A person voting at an election was only two and a half years old when his father and he, both of foreign birth, came to the United States, and the proof showed that the father died a year or two after he came to this country: Held, that these facts excluded any presumption that the father was ever naturalized.</p> <p>16. Where a person of foreign birth takes out his first papers for naturalization, upon which he votes, any presumption of his parent’s naturalization, arising from his voting, will be effectually rebutted by the fact of the voter procuring his first papers.</p> <p>17. Same—evidence—talcing out naturalization papers after the election. The testimony of a person voting at an election, that he has taken out naturalization papers since the election, such act being in • the nature of an admission of a want of qualification, is inadmissible on a contest of the election. But when the party applied for naturalization papers before the time of voting, this is competent evidence of his want of qualification up to that time.</p> <p>18. Same—misnomer in certificate of naturalization—parol evidence. A misnomer in a naturalization paper will not vitiate the certificate. And when a certificate of naturalization is to “Henry Dunsmeyer,” parol evidence is competent to show that it was issued, in fact, to “Heinrich ■ Tansman," and to identify the real party. It is competent to show that Heinrich Tansman w'as known by the name of Dunsmeyer.</p> <p>19. Same—certificate of naturalization—including two persons. A certificate of naturalization issued to a person, which includes another person, though informal, is not invalid on that account.</p> <p>20. Same—impeaching the certificate—by parol. Where a certificate of naturalization is granted by a court of competent jurisdiction, evil dence is not admissible to show that it was improperly granted, or was obtained by false or perjured testimony. But parol evidence is admissible to show that naturalization papers were fraudulently issued or procured, if the naturalization was in fact the act of the clerk, alone, and not the judgment of the court.</p> <p>21. Same—residence of voter—acquiring a residence—removing from another State—intention, etc. Where a person abandons his residence in another State by selling all his property, with the intention of removing to this State, and on his way he and his family make a temporary visit of several weeks, or even months, at a point without either of those States, this will not gain for either him or his family a domicile in such place of their temporary sojourn.</p> <p>22. The person so intending to change his place of residence, reached his place of destination in this State with the intention of residing there permanently, and being present, electing that place as Ms home', then; to all intents and purposes, he became a resident and inhabitant of that place, and, he being the head of a family and having a domicile there, it also becomes the domicile of Ms family, who were at the time visiting in another State.</p> <p>23. Same—residence — continuation until another is acquired—only one voting place, at the same time. A domicile once gained remains until a new one is acquired, and a man may acquire a domicile or residence if he be personally present at a place and elect that as his home. But a man can not have two or more “permanent abodes" or residences, in the sense of the constitution and the statute, in different jurisdictions, at one and the same time.</p> <p>24. So one is not entitled to vote at any one time in either of two places, but must elect. When the circumstances are such that a man may claim a domicile at either one of two places, the place he regards as his home or domicile will be his residence for the purpose of voting.</p> <p>25. Same—regaining a lost residence. A party, after two years’ absence from the State, may return to Ms former place of abode and acquire a domicile there again, though on his return he may liave left some of his goods in the State from which he returned, for some months, and may have left an unexpired term in land leased by him in such other State.</p> <p>26. Same—of the ballot—rule of construction. A ballot is not required to be nicely or accurately written, or that the name of the candidate voted for shall be correctly spelled. It should be read in the light of all the circumstances surrounding the election and the voter, and the object should be to ascertain and carry into effect the intention of the voter, if it can be done with reasonable certainty.</p> <p>27. The ballot should be liberally construed, and the intendments should be in favor of a reading and construction which will render the ballot effective, rather than in favor of a conclusion which will, on some technical ground, render it ineffective.</p> <p>28. Same—certainty in the ballot. But it is not admissible to say tha-t something was intended which is contradictory of what was done; and if the ballot is so defective as to fail to show any intention whatever, it must be disregarded.</p> <p>29. So where the name of one candidate is erased from a ballot, and the letters interlined are so indistinct and illegible as that it fails to show any intention to vote for the opposing candidate, it should be counted for neither candidate, and treated as a blank.</p> <p>30. Same—ballot without a number. The name of a voter was number 28 on the poll-book, but there was no ballot of that number in the package of tickets in the office of the county clerk. The voter testified ■ that he saw the judge of the election put the ballot in the ballot-box, and there was no evidence tending to show the voter’s ballot was not in the package by a wrong number, and there was proof showing several mistakes in numbering the ballots: Held, no ground for rejecting the entire poll, it being probable that the ballot voted was one which was wrongly numbered by mistake.</p> <p>31. A person whose name on the poll-book was No. 107, testified that he did not live in that precinct and did not vote there, and that there was no other person residing in that precinct having the same name, that he knew of, but that he was not generally acquainted in such precinct: Held, that the evidence was not sufficient to shift the burden of proof on the party claiming the benefit of such ballot, to show affirmatively that the voter of such ballot was a bona fide resident of that precinct. There may have been two persons of that name.</p> <p>32. Same—rejecting unnumbered ballots. The statute requires that when the ballots found in the box exceed the number of names entered on each of the poll-lists, then the judges shall reject the ballots, if any be found, upon which no number is marked. The failure of the judges to discharge this duty will not preclude the court, in case of a contest, from carrying into effect the mandate of the statute.</p> <p>33. Same—name in ballot—abbreviation or contraction of it—identifying person voted for. The printed name “John B. Kreitz” was erased from a ballot, and the name “F. A. Behrn” was written under it, the opposing candidate’s name being Charles F. A. Behrensmeyer, and the ticket showed why the residue of the name did not appear thereon: Held, that the word “Behrn” was intended as a contraction of the name Behrensmeyer, and that the vote was properly counted for him.</p> <p>34. But where a candidate’s name is Behrensmeyer, ballots for “Delibsumeyer” can not be aided by extraneous proof, for want of such similarity of sound in the two names as might induce one to be mistaken for the other.</p> <p>35. On the contest of an election, any evidence going to prove that the voter had intended and attempted to express the contestee’s name as he understood it, is admissible, when it appears that such candidate’s name is differently pronounced as well as differently spelled.</p> <p>36. The printed name of a candidate on a ticket voted was erased, and the word “Kri,” in pencil, written to the right of it, and reaching to the edge of the ticket: Held, that the same was properly counted for John B. Kreitz, a candidate at such election.</p> <p>37. Where it is shown there are two men, one named John B. Kreitz and the other John M. Kreitz, and that the name of the first has been erased and the name of the latter written in its place on a ballot for an office, a latent ambiguity will he presented, and if no further testimony is introduced, the presumption of fact, from the circumstances that one is and the other is not a candidate, will be, that the vote is intended for the one who is a candidate. But oral testimony is admissible to explain the ambiguity, and it is error to refuse such testimony.</p> <p>38. Same—writing one name over another,-in the ballot. Where the name of one candidate is written on and across the name of his opponent, it will be presumed that the voter intended, by one and the same act, to erase the name of the one and insert the name of the other candidate.</p> <p>39. Same—interlining a ballot with the name of another candidate. The name of one candidate for a county office was erased and the name of another candidate written in pencil over the title of the office, such name touching, in one place, the title of the office : Held, that no cancellation of the title of the office was intended, and that the ballot showed a vote for the candidate whose name was written over the title of the office. If this is not so, it was competent to prove by the voter that the erasure of the title was accidental. • So when the name interlined is written in pencil into and across the title of the office, it is no evidence of an intention to cancel the printed title of the office.</p> <p>40. Same—candidate’s name repeated in ballot. Where the name of one candidate is erased and the name of his opponent written in substitution, the fact that his name is written in two places upon the ticket, in a cramped and contracted form on a line with the erasure, and in a more legible shape thereunder, will not invalidate the ballot. Such ballot designates but one person for the office, and is not a'double ballot.</p> <p>41. Same—two names for the same office. A ballot cast at an election containing two different names for one and the same office is properly counted for no one.</p> <p>42. Same—forgery of ballot—substitution of ballot for another that has been voted. It is competent to show that a ticket is a forgery. A ticket changed by a paster to read as a vote for a man for a particular office different from the "man for whom it read when cast, is a forgery ; and the same is true where the ballot, after it is cast, is destroyed, and another and different ballot put in its place.</p> <p>43. Same—double voting—both votes rejected. It has been held, that if a man votes twice at an election when he is only entitled to vote once, then both votes must be rejected,—and this, irrespective of the question "whether such acts were done intentionally, ignorantly or by mistake.</p> <p>44. A person offered his ballot, which was numbered and deposited in the ballot-box, when it was discovered that his name was not on the registry, and that his voting place was at another precinct. His vote, on the canvass, was not counted, but he afterwards voted in Ms own precinct. On a contest of the election the county court refused to allow either of Ms votes: Held, no error in such ruling.</p> <p>45. Same—for whom a person voted—parol evidence—to contradict the ballot cast. A voter can not be allowed to testify that he voted for one person, when he admits that he cast a ballot, which has not since been changed, showing that he voted for another person. This is merely on the principle that a writing can not be contradicted by parol.</p> <p>46. Depositions—caption and certificate. The statute has fixed no form for either the caption or certificate to be attached to depositions. If they are taken and certified in substantial conformity with the requirements of the statute, they will not be suppressed on merely technical objections.</p> <p>47. Same—taken by typewriter—and by whom taken. The fact that depositions are taken by a typewriter does not show they were not. “reduced to writing,” as required by the statute. And when the notary named in the notice certifies that “each of said depositions was so taken by me,” etc., there can be no presumption that any of the depositions were taken by any other than such notary.</p> <p>48. Misnomer in judgment— parol evidence. Where a party to a record is incorrectly named, he may be connected with the judgment by proper averments; and when such averments are proved, the party intended to be named in the judgment will be affected, the same as if Ms real name was used.</p> <p>49. Inquest of lunacy—service of process—sufficiency—waiver.. An order of .the county court finding a person to be insane, when the record shows only nine days’ service, and that by reading instead of by copy and for ten days, as the statute required, is void for want of jurisdiction, and is not evidence of the insanity of such person.</p> <p>50. The voluntary appearance of one charged with lunacy or insanity to a jirodeeding to have him adjudged insane, will not cure a defective. service of process on the alleged lunatic. If insane, he is incompetent to waive any right.</p>

Frank Baker, Judge, presiding. This was an action on the case, in the circuit court of Cook county. The trial resulted in a verdict and judgment in favor of the plaintiff for $7600 and for costs.

W. H. Snyder, Judge, presiding. . Julius A. Barnsback, the American Powder Company and Robert Klitzing filed a bill in chancery in the Madison circuit court, and alleged therein the recovery of certain judgments against the Brookside Coal and Coke Company, the execution of certain mortgages charged to be fraudulent, and the insolvency of said coal and coke company.