text:
    Anton Hirsch, Appellee, v. Chicago Consolidated Traction Company et al., Appellants.
    Gen. No. 14,172.
    1. Verdict—when not disturbed as to findings of fact and as to amount of damages. The determination of the jury upon the question of negligence and upon the amount of the damages to be awarded will not be lightly disturbed on review, and never unless the court must say from a consideration of all the evidence that the finding of the jury is palpably the offspring of passion and prejudice or manifestly contrary to the preponderating force of the evidence.
    2. Vebdiot—effect of large remittitur. The entry of a large remittitur does not necessarily create a presumption of prejudice or passion entering into the verdict of the jury.
    3. Verdict—when not disturbed for excessiveness. A judgment rendered in an action for personal injuries will not in any event be reversed because of the excessiveness of the verdict unless it is apparent that the whole of the evidence of the plaintiff considered standing alone without reference to the countervailing proofs of the defendant, is insufficient to support the judgment for the amount for which it was ultimately entered.
    4. Evidence—when testimony of expert does not include subjective symptoms. Held, that the testimony of an expert with respect to a test made by reflexing the knees of the plaintiff, did not refer to subjective symptoms, and was therefore competent.

      5. Evidence—who may give opinion as to permanency of injury. A medical expert who has duly qualified and given the basis of his opinion is competent to testify as to whether or not in his opinion the injury in question is permanent.
    6. Appeals and ebbobs—when statutory damages not assessed upon affirmance. No statutory damages will be awarded on affirmance upon the ground that the appeal was ve-.atious and solely for delay, if there was in the case a question which the appellant was reasonably entitled to test.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Albert C. Babnes, Judge, presiding;
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed February 4, 1909.
    John A. Rose, Frank Kriete and Albert M. Cross, for appellants; W. W. Gurley, of counsel.
    Quin O’Brien, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiff sued the defendants in an action on the case for personal injuries, laying the ad damnum at $20,000. On the trial before the Superior Court and a jury a verdict was rendered assessing plaintiff’s damages at $10,000. On the argument of a motion for a new trial plaintiff remitted $3,500 from the amount of the verdict, whereupon the court overruled the defendant’s motion for a new trial and entered judgment on the verdict, minus the remittitur, for $6,500, from which judgment (after the usual formal objections had been made and exceptions taken to the several actions of the court culminating in the judgment) defendants prosecute this appeal, seeking a review of the record and asking a reversal of the judgment.

The declaration rests in two counts, to which defendants pleaded not guilty. It appears that plaintiff, a teamster, at about one o’clock in the afternoon of December 30, 1905, in pursuing his avocation was driving a team of horses, hitched to a four-wheel wagon laden with brick, in the northbound track of defendant’s road, in a northerly direction, and that a car of defendants proceeding north on the same track south of plaintiff’s wagon and team, ran with such force into the rear of the wagon as to upset the same, and throw plaintiff from his seat into the roadway, literally covering him with “a thousand of brick” or more; that from that act plaintiff was greatly and permanently injured. Among such claimed injuries was one to his right leg, fracturing the patella or knee-cap, a flesh wound below the knee reaching to the bone, causing an indentation of the tibia, with such resulting suppuration that the condition was followed by swelling and inflammation, the effect of which culminated in chronic synovitis and permanent lameness; also that the sciatic nerve was injured, since which he has suffered from a disease called “sciatica;’’that he also suffered a fracture of the “superior maxillary bone,” on the right side of his head, and that his face was lacerated, his sixth and seventh ribs on one side fractured, one of his lungs so injured that pneumonia was contracted, etc.

The first count charges negligent management of the street railway line and car causing the impact which resulted in plaintiff’s injuries, and the second count charges that the injuries of plaintiff were occasioned from the careless operation of the car, in not controlling and cheeking its speed, and in not giving warning of its onward course by ringing a bell, or in any other way.

Two questions only are argued as reasons for a reversal of the judgment. They are first, that the damages are excessive; and, second, that the court erred in its rulings upon the evidence. To the decision of the questions so raised we shall confine our opinion.

First. It is conceded by defendants that the cause was one calling for a submission to the jury under the evidence in the record. This imposed dual duties upon the jury, first to determine from the weight of the evidence whether defendants were guilty of the negligence charged—about which there is no serious challenge—and, second, after determining the guilt of defendants, to assess the damages which plaintiff ought to receive as compensation for the injuries which they conclude from the evidence plaintiff suffered as a consequence of such negligence. Such determinations of the jury will not lightly be disturbed on review, and never unless the court must say from a consideration of all the evidence that the finding of the jury is palpably the offspring of passion or prejudice, or manifestly contrary to the preponderating force of the evidence. We are unable to say, after a careful review of all the evidence, that either of these conditions entered into the result reached by the jury. Nor are we at liberty to say, from the fact that plaintiff remitted so large a portion of the verdict, that the presumption of prejudice or passion arises. In such a condition, we must direct our attention to the evidence in the record. In no event can we reverse on this ground unless it is apparent that the whole of the evidence of plaintiff considered, standing alone, without reference to the countervailing proofs of defendants, is sufficient to support the judgment for the amount for which it was ultimately entered. The evidence supports the contention that the injuries "of plaintiff, flowing from the accident, were serious, painful and permanent, and of such a serious character as to warrant the recovery of a very substantial amount of money as compensation. The case at bar is quite similar in its controlling features to that of Cicero & Proviso St. Ry. Co. v. Brown, 89 Ill. App. 318, which was affirmed in 193 Ill. 274. This was also a suit for personal injuries. The verdict of the jury was $6,000 and a judgment rendered thereon, after a remittitur of one-half, for $3,000. This court, reviewing the record, said: “The claim of appellant that the verdict was so excessive as to show passion or prejudice on the part of the jury, and that it is not cured by the remittitur, is not, in our opinion, tenable, under the facts shown in this record. We think there is sufficient evidence in the record of actual damage by reason of her injuries to justify the amount of the judgment as finally rendered by the court after the remittitur. There was considerable evidence on behalf of defendant as to the nature and extent of appellee’s injuries, and which, to a considerable degree, conflicts with what was offered in behalf of appellee, but when the whole is considered, we think the amount of the judgment is amply warranted by the evidence. ’ ’ These observations are equally pertinent and applicable to the cause before us, and for like reasons is our judgment controlled.

Second. The rulings of the trial judge which defendants insist were erroneous, relate to the testimony of Dr. O’Neill, who was not the attending physician of plaintiff, but who examined him and his injuries for the purpose of" testifying as an expert. They relate to statements made by Dr. O’Neill as to symptoms and conditions developed on a physical examination of plaintiff, which are claimed to be of a subjective and not objective character. The results obtained by the process of reflexing the knees and feet of plaintiff by Dr. O’Neill, it is insisted were improperly admitted as evidence. This objection is based upon the contention that the results obtained are largely within the control of the patient, and consequently. are in their nature and essence subjective and inadmissible as evidence. Beflexing the knees and feet of a patient are common methods resorted to by medical practitioners in an effort to ascertain the state of the nerves or the health of a patient. Certain actions result from reflexing the leg of a healthy person, and a different action is obtained from flexing the leg of a patient in a nervous or diseased condition. A dishonest person, it is claimed, might simulate the condition of ill health, and therefore such symptoms being under the physical control, to some degree at least, of the patient, must be regarded as wholly subjective. No words or statement of plaintiff to Dr. O’Neill were allowed to be given in evidence. The matters testified to by Dr. 0 ’Neill were nominally objective symptoms. All evidence given by him which in the slightest degree could be adjudged of a subjective character, were eliminated from the record, and we think the testimony of Dr. O’Neill remaining in the record is not subject to the criticism made by defendants. As said by this court in Chicago City Ry. Co. v. Greinke, 136 Ill. App. 77: “These tests”—re-flexing—“were known to medical science and resorted to by reputable medical practitioners in the endeavor to ascertain if the patient was suffering from physical and mental difficulties, which it was claimed afflicted plaintiff. The apparent responsive action of the plaintiff, which the physician claimed indicated that she was suffering from hemiplegia, were some of them of subjective character and within physical control of plaintiff and within her power to simulate. But we do not regard the latter fact as stamping such evidence as a communication of subjective symptoms by the plaintiff to physicians, and therefore hearsay testimony and improper. The tona fides of plaintiff’s conduct was impugned by the defendant and attempted to be sustained by their medical expert witnesses. * * * The jerks, twitchings and nervousness were obvious and made manifest by tests. * * * The power that moves a steam engine is concealed when inactive, but the action resulting from the concealed power is made manifest when the machinery is started. The subjective force is put into the action of which it is capable, and its workings effect these and become objective.”

The testimony of Dr. O’Neill objected to and quoted' in defendant’s brief, under the ruling in the Greinke case was clearly competent. The further objection to the opinion of Dr. O’Neill as to the permanency or not of conditions shown by his evidence is without force. He was put upon the witness stand as an expert, and it was proper and in conformity to precedent that he should, from the conditions found upon his physical examination of plaintiff and recited in "his testimony, give his opinion as to their permanency. A careful examination of all the testimony excluded on the several motions of defendants, does not impress us, from the fact that the jury heard it, that any substantial right of defendants was affected to their detriment. In the condition in which we find the record we are convinced that the jury gave no heed to such testimony.

Plaintiff asks for the assessment of statutory damages, on the theory that this appeal is vexatiously prosecuted, simply and solely for delay. We think defendants justified in asking this court to review the record of the trial court. So large a remittitur might raise in the minds of counsel a suspicion that their opponents, by so doing, had evidenced some doubts of their right to maintain the judgment secured. They are certainly justified in testing their suspicion, not at all illogical, by seeking our review. The request for the assessment of damages is denied, but the record being without reversible error, the judgment of the Superior Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Adams

license: Public Domain

text:
    In re Estate of Luella B. Trubey, deceased. Esdras B. Trubey, Administrator, Appellant, v. Arthur B. Pease, Appellee.
    Gen. No. 14,082.
    1. Gifts—what essential to validate. In order to constitute a valid gift there must not only be an intention to make the gift but an actual delivery of the res.

    2. Gifts—what not valid, notwithstanding intention to malee is clear. A gift is not complete and does not satisfy the legal requirements if the agent of the donor who is given possession of the res with instructions to deliver the same to the intended donee,. does not actually make such delivery.
    Petition in court of probate. Appeal from the Circuit Court of Cook county; the Hon. Richaed S. Tuthill, Judge, presiding.
    Heard in this court at the October term, 1907.'
    Reversed and judgment here.
    Opinion filed December 7, 1908.
    Opinion amended and refiled January 4, 1909.
    Statement by the Court. The appellant, administrator of the estate of Luella B. Trubey, to collect, filed his petition in the Probate Court of Cook county, praying for an order on Arthur B. Pease, the appellee, to turn over to the estate the following described property, alleged to be in his possession:
    Note of Gottfried and Lena Andres, dated May 26, 1902, for $600, due in five years from date, payable to the order of the makers and by them endorsed, and four interest notes for $18 each and trust deed securing said notes, executed by . the same parties to Fayette S. Munro, trustee.
    Note of William T. Sanford for $1,000, dated January 18, 1904, due three years after date, and four interest notes for $30 each, payable to the order of the maker and by him endorsed, and a trust deed securing said notes, executed by the same party to Arthur B. Pease, trustee.
    Note of Christine and Entrofus Johnson for $2,500, dated January 28, 1901, due in five years after date, and two interest notes for $75 each, all signed by the makers, payable to themselves and by themselves endorsed, and a trust deed securing the same, executed by the same parties to Arthur B. Pease, trustee.
    Note of Robert Bartlett for $1,500, dated March 2, 1904, due three years after date, and four interest notes for $45 each, all signed by Robert Bartlett, payable to himself, and by him endorsed, and a trust deed securing same, executed by Robert Bartlett to Arthur B. Pease, trustee.
    Note of Frank and Lizzie Beilis for $500, dated August 27, 1901, due five years after date, and .interest notes 6 to 10 for $15 each, said notes signed by the makers, payable to themselves and by themselves endorsed, and a trust deed securing same, executed by the same parties to Arthur B. Pease as trustee.
    Certificate of membership in the Southern Mutual Investment Company No. 3653 for $500, issued to Thomas L. Warren and by him assigned to Mrs. L. B. Marchand, and two coupons attached thereto for $62.50 each.
    Certificate of membership No. 3655 in the Southern Mutual Investment, Company for $500, issued to Thomas L. Warren, dated May 15, 1900, and by him assigned to Mrs. L. B. Marchand, and coupons 7 and. 8 for $62.50 attached thereto.
    Certificate of membership No. 3657 in the Southern Mutual Investment Company for $500, issued to Thomas L. Warren and by him assigned to Mrs. L. B. Marchand, together with two coupons for $62.50 each.
    Four certificates of membership in the Southern Mutual Investment Company numbered respectively 3654, 3658, 3656 and 3659, each for $500, each having two coupons attached for $62.50 each, and each being issued to Thomas L. Warren and by him assigned to Mrs. L. B. Marchand.
    Certificate No. 78 and Certificate No. 79, each for .18,558 shares of the capital stock of the Saratoga Gold Mining Company, issued to L. B. Trubey and by her endorsed in blank.
    Certificate No. 50 for two shares and certificate No. 13 for three shares of stock in the Continental Adjustment Company.
    Contract between Luella B. Trubey and E. B. Trubey, certificate No. 14 for thirty-five shares of the stock of the Continental Adjustment Company, issued to E. B. Trubey, and certificate of membership in the Bankers Life Association of Bes Moines, Iowa, issued to E. B. Trubey, said contract, certificate of membership in said life insurance company and certificate of stock not endorsed.
    One open-faced watch, one initial ring, one moss agate ring, one diamond and ruby ring, one pair of diamond ear-rings, one ladies’ gold watch and fob, one dozen each silver table knives, table forks and tea spoons, one-half dozen each silver tablespoons, soup spoons and plain silver spoons; one small fork and several small spoons, and one bag containing miscellaneous articles.
    Such proceedings were had in the matter of said petition that, November 14, 1906, the said courtfound that all of said property was the property and assets of the estate of Luella B. Trubey, deceased, and that said deceased had not', during her life, made any valid gift of the same; also, that since the filing of said petition Jettie Richardson had been duly appointed executrix of the last will of Luella B. Trubey, deceased, and had qualified as such, succeeding Esdras B. Trubey, administrator to collect, and the court entered the following order:
    “It is ordered that Arthur B. Pease turn over to the executrix of the last will and testament of said Luella B. Trubey all the property mentioned herein, within five days from the date hereof.”
    Prom this order the appellee, Arthur B. Pease,.appealed to the Circuit Court, where the cause was tried by the court, without a jury, a jury being waived, and the court found that “Luella B. Trubey, in her lifetime, made valid gifts and fully executed The same by delivery of the chattels and securities, as hereinafter described, and to the persons hereinafter named, as follows:
    To Johanna Peters, one open-faced gold watch;
    To Sophie Pfuhl, one initial ring, letter M, one moss agate ring, and one diamond and ruby three stone ring;
    To Jettie Richardson, the following chattels, securities, etc.” Here follows a description of the notes, trust deeds, certificates of membership and of shares of stock, contract between Esdras B. Trubey and Luella B. Trubey, deceased, and certain silverware, all of which are described supra. And the court ordered that Arthur B. Pease deliver, forthwith, to the persons named, the said property, describing the property to be delivered to each of said persons.
    Mrs. Luella B. Trubey, deceased, had been married to Esdras B. Trubey something more than a year at the time of her death. She had formerly been married to a Mr. Marchand, by whom she had one child, who died before her mother. Mr. Arthur B. Pease is an attorney and a member of the firm of Pierson & Pease, in Chicago. He was Mrs. Trubey’s attorney for about five years prior to her death, and wrote her will and a codicil thereto. Mrs. Trubey died June 3, 1905. Mrs. Johanna Peters is Mrs. Trubey’s sister; Mrs. Sophie Pfuhl is a sister of Mr. Marchand, deceased, and Mrs. Jettie Biehardson is a niece of Mrs., Trubey, deceased. Mrs. Trubey’s will is dated December 6, 1904, and the codicil thereto is dated March 16, 1905.
    Arthur B. Pease testified, in substance, on the trial in the Circuit Court, that he had in his possession all the property above described, except the note for $2,500 and the trust deed securing the same; that some $1,200 had been paid on the note, and that he was holding the difference between that and the total amount due pending this litigation. He further testified, in substance, as follows: Mrs. Trubey sent to his office for him March 15, 1905, and when he arrived at his office he went to her residence, where she was sick in bed. She told him she wished him to go to her safety deposit box, in the American Trust & Savings Bank vaults, and get from it mortgages, bonds, jewels and different things which she enumerated, and bring them to her. He expressed reluctance to go to her box, on which she expressed great confidence in him, when he said he would go to the box, but not alone, and she asked Mrs. Woodruffe, who was present, to go with him, and wrote an order on the vault company, and he and Mrs. Woodruffe went to the box and he took from it and brought to Mrs. Trubey the things which she had asked him to bring. Mrs. Trubey then separated the things into, three parcels, as she intended them for Mrs. Peters, Mrs. Pfuhl and Mrs. Eichardson, and gave to him the names and addresses of said persons, and Mr. Pease then marked each parcel, and wrote the name and address of each person to whom a parcel was to go, on a slip of paper, and put it with the articles in the parcel. The gold case watch for Mrs. Johanna Peters was put in a chamois bag. With three gentlemen’s gold rings, which formerly belonged to Mr. Marchand, and which were intended for Mrs. Sophie Pfuhl, he placed a slip with Mrs. Pfuhl’s name and address on it. All the other things, except the silverware, which were intended for Mrs. Jettie Eichardson, were put in a package, with the slip of paper with her name and address on it. As Mr. Pease was about to leave Mrs. Trubey’s room, she said to him, “There is a box with my solid silverware on the dresser. I want Jettie Eichardson to have that also,” and Mr. Pease wrote Jettie Eichardson’s name, and put it in the box and took it with him. The following names and addresses were given to Mr. Pease by Mrs. Trubey:
    “Mrs. Johanna Peters, Decatur, Ill.; Mrs. Sophie Pfuhl, Harrisburg, Pa.; Jettie Eichardson, White Hills, Hardin Co., Ky.”
    In respect to Mrs. Trubey’s directions in regard to the property, he was questioned and answerd as follows:
    “Q. She didn’t tell you when to make delivery to any of these people, did she?
    A. She told me to deliver them.
    Q. And there was no direction when these were to be delivered to her, Jettie Eichardson?

      A. She said to give them.”
    Mr. Pease further testified, that, as he was leaving Mrs. Trubey’s room, he said to her, “Mrs. Trubey, do you fully realize what you have done; that you have given these things away, and they are going out of your possession?” and she said, “Yes, I know what I have done, and I am glad to have it off my mind, for I am liable to wink out any minute, and I will write Jettie Eiehardson and tell her what I have done, and you will hear from her.”
    Mr. Pease never saw Mrs. Trubey after leaving her room March 15, 1905, nor did he meet or communicate with any of the intended donees till after her death, which occurred, as heretofore stated, June 3, 1905. Mr. Pease put all the property, except the silverware, in a safety deposit box in the Chamber of Commerce vaults, which he rented in his own name and had sole control of, and he kept the box of silverware, of which he had the key, in his office vault. Before giving to witness the notes and securities, Mrs. Trubey tore off three or four interest coupons, which were with a few weeks of maturity, and gave them to witness, directing him to collect them for her. Mrs. Trubey wrote to Mr. Pease the following letter on the day of its date:
    “March 17, 1905.
    “Mb. Pease: I see you have failed to receipt for the $1,500 note on one Bartlett on that Dearborn street loan. Please add it to enclosed receipt and give to Mrs. Woodroffe to bring back to me. Please pay rent due on my vault box and give it up; take all the other papers in there and put them in the new box you have rented. Save any papers that could be put safely with my papers that you have in your office; I have a tin box in your office.
    Yours truly,
    Mbs. Tbubey.
    This Bartlett note is—was with my other loan; also send interest coupons for Bartlett loan, which is due, of $45.00.”

      Mr. Pease says that he followed the instructions in the letter and gave up her safety deposit box.
    Mr. Pease testified that, at the time he drafted Mrs. Trubey’s will, she asked him if she could will to Jettie Bichardson the property which was subsequently set apart for her, and he told her she could not, that it would go to her husband, and also told her that it was necessary to deliver the property to the several persons for whom it was intended.
    “Q. Did you tell her that, at that time, in March, 1905?
    A¡ I don’t think it was then; it was talked over very explicitly when I drew the will.”
    W. W. De Armond and Samuel C. Herren, for appellant.
    Louis J. Pierson and George A. Miller, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The facts disclosed by the evidence are few and simple. Mrs. Trubey was advised by Mr. Pease, her attorney, as he testified, that such gifts as she proposed to make must be delivered to the persons for whom they were intended. March 15, 1905, she turned the property intended as gifts over to Mr. Pease, giving him, at the same time, the names and addresses of the persons for whom it was intended, and directed Tiim to deliver the property to the persons named. Mr. Pease did not communicate with any of the persons whose addresses he had, nor did he deliver any of the intended gifts, and, June 3, 1905, Mrs. Trubey died.

The property has remained in Mr. Pease’s possession from the time it was turned over to him by Mrs. Trubey until the present time.

It is elementary law that delivery to the donee is essential to a valid gift. 2 Cooley’s Blackstone, 441; 1 Chitty on Contracts, 11 Am. ed. 60; 1 Parsons on Contracts, 234; 2 Kent’s Commentaries, 438; 1 Beach on Mod. Law of Contracts, 203; Barnnm v. Reed, 136 Ill. 388, 398; Telford v. Patton, 144 ib. 611, 619; Williams v. Chamberlain, 165 ib. 210, 218.

In Barnnm v. Beed the court say: “To constitute a valid gift inter vivos possession and title must pass to and rest in the donee irrevocably. In this respect, alone, a gift causa mortis differs from that of a gift inter vivos, as in the case of the former it is revocable on the recovery of the donor.”

In Telford v. Patton, supra, this language is used: “It is essential to a donation inter vivos, that the gift be absolute and irrevocable, that the giver part with all present and future dominion over the property given, that the gift go into effect at once and not at some future time, that there be a delivery of the thing given to the donee, that there be ‘such a change of possession as to put it out of the power of the giver to repossess himself of the thing given.’”

The law is the same in other jurisdictions. In Williams v. Chamberlain, supra, the court say: “It is not intended by anything said in the Otto-Beckwith case to change the rule, which we regard as settled law, that it is necessary to the validity of all gifts, whether inter vivos or causa mortis, that there be delivery of the subject of the gift or acts equivalent to a delivery.” Citing numerous authorities.'

Mrs. Trubey delivered to Mr. Pease the intended gifts, and directed him to deliver them to the persons whose names and addresses she gave to him, thereby constituting him her agent for the purpose of delivery to said persons.

In Jennings v. Neville, 180 Ill. 270, 277, the court say: “Delivery to the agent of the donor, to be by such agent delivered to the donee, is not effectual if the donor dies before the agent has carried out his instructions, as the death of the principal revokes the authority of the agent.” In that case there were peculiar circumstances distinguishing it from the present case. Joseph Jennings was the owner of a promissory note, and prior to his death, and while the note was in the custody of one Hamilton, he told Hamilton that he wanted to give the note to his son Wilford, and, by his direction, Hamilton wrote an assignment of the note to Wilford, which Joseph Jennings signed, and told Hamilton to hold the note for Wilford, and, subsequently, during the life of Joseph,Hamilton collected the annual interest on the note for two years, and paid the same to Wilford. Hamilton did business for both Joseph and his son, Wilford, and was entrusted with papers by each of them, and was therefore agent for each of them. Held, that Hamilton’s possession of the note was the possession of Wilford Jennings, his principal. “Where delivery is made to a third party, in order that the latter may deliver the subject of the gift to the donee, as agent of the donor, the gift is not complete until there is actual delivery to the donee; and until the gift is completed by delivery, the donor can revoke the agent’s authority and resume possession of the gift.” Telford v. Patton, 144 Ill. 611, 623; Sessions v. Moseley, 4 Cush. 87, 92; Thornton on Gifts, secs. 31 and 32.

Appellee’s counsel contend that Mrs. Trubey lost all control and dominion over the property when she delivered it to Mr. Pease. We fail to see how the case differs in this respect from any case in which the owner of property, intending to give it to another delivers it to an agent, with direction to deliver it to the person intended. The agent, in every such case, necessarily takes the property into his possession, and it is his duty carefully to preserve it till he can deliver it. It is contrary to the well settled law that on the agent taking possession of the property, for the purpose of delivery as directed, his principal loses control over it.

Appellee’s counsel also urge that it was Mrs. Trubey’s clear intention that the persons named as donees should have the property, and contend that Mr. Pease was a trustee for their use. Mrs. Trubey, without doubt, intended that Mrs. Peters, Mrs. Pfuhl and Mrs. Richardson should have the property; but while the intention to give is essential to a valid gift, delivery is absolutely essential. In Telford v. Patton, supra, it is said: “The intention to give is often established by most satisfactory evidence, although the gift fails. Instruments may be ever so formally executed by the donor purporting to transfer title to the donee, or there may be the most explicit declaration of an intention to give, yet, unless there is delivery, the intention is defeated.”

In Williams v. Chamberlain, supra, the court say: “The intention, without accompanying acts, avails nothing.” P. 217.

In Telford v. Patton, 144 Ill. 611, there was no actual delivery to Patton, who claimed as donee; but she claimed that Telford delivered the money to' the bank as trustee for her, in regard to which claim .the court say: “In the absence of any proof of declarations made by Telford to the bank, and in the absence of any proof as to his intentions in obtaining the certificate, it cannot be said that he was ever wholly divested of control and dominion over the deposit so long as the certificate remained in his possession.”

In Williams v. Chamberlain, supra, it was claimed that Williams, the alleged donor, created a trust in favor of Chamberlain. The court said of the claim: “Nor does the evidence show that Williams created a trust or constituted himself the trustee of the petitioners, and so held possession of the policies for them. That he might have done so is beside the question. It is sufficient that he did not do so, and we find no evidence in the record that he made the attempt. From a mere imperfect gift a trust cannot be deduced.”

In this case Mrs. Trabey declared no trust, nor did she use any language which can be construed as making Mr. Pease a trustee for the use of the intended donees.

The court did not err in overruling appellant’s motion to open the cause to admit additional evidence. ' In conclusion, we cannot refrain from expressing regret that Mrs. Trubey’s intention was not carried into effect. This, however, is the moral aspect of the question, and we are limited to consideration of the strict legal rights of the parties, and are not unmindful that hard cases make bad law. The judgment of the Circuit Court will be reversed and judgment will be entered here, and the judgment heretofore rendered, remanding the cause, will he vacated and set aside. Reversed cmd judgment here.


author: Mr. Presidihg Justice Adams

text:
    John Cerny et al., Plaintiffs in Error, v. Jednota Cesky Dam, Defendant in Error.
    Gen. No. 14,208.
    1. Fraternal benefit societies—scope of charter need not be co-extensive with statute. It is entirely competent for a fraternal benefit society to restrict the object of its benevolence to fewer than the classes authorized by the enabling statute.
    2. Fraternal benefit societies—scope of powers of. A fraternal benefit society is limited to the purposes or object expressed in its charter, and this regardless of whether the incorporation is by special act of the legislature or under and in pursuance to the general law.
    3. Fraternal benefit societies—when by-laws void. A by-law which is contrary to the charter of a fraternal benefit society is unauthorized and void.
    4. Fraternal benefit societies—when heirs of member not entitled to proceeds of certificate. If the object or purpose of a fraternal benefit society in respect to deceased members is stated in the charter to be "to aid the families of deceased members,” a provision in a by-law of such society to the effect that in a certain contingency the mortuary benefit might be paid to the heirs of the deceased, even though not members of the family of the deceased, is void, and such heirs are in no event entitled to the proceeds of the certificate.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Chables N. Goodnow, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed February 15, 1909.
    Rehearing denied March 4, 1909.
    John W. Jedlan, for plaintiffs in error.
    No appearance for defendant in error.
   Mr. Presidihg Justice Adams

delivered the opinion of the court.

This is error, to reverse a judgment in favor of defendant in error and against plaintiffs in error. The defendant in error, a fraternal benefit association, August 19, 1904, issued to "Katerina Hubicka a certificate of membership in Premyslovna Lodge number 5 of the defendant order, providing that she should participate in the beneficiary fund of the order “to the amount of. $600, which amount shall, at her death (proof of which shall be established as required by the laws of the order), be paid to Joseph and Mary Cunat,” etc. Certain conditions are referred to in the certificate, which it is unnecessary to mention, as it was stipulated on the trial as follows:

“It is hereby stipulated and agreed by and between all the parties to the above entitled cause, that on the 19th day of August, A. X). 1904, the Jednota Cesky Bam was a fraternal beneficiary association organized and existing under the laws of the State of Ohio. That the Statute of Ohio governing said society and applicable to the cause reads as follows:

‘ Chapter 10, section 3630. * * * A company may be organized * * * for the payment of stipulated sums of money to the families, heirs, executors, administrators, or assigns of the deceased members of such company or association, as the members may direct in such manner as may be provided in the bylaws * * * .’

“That on the 15th day of March, A. D. 1907, Katerina Hubicka, then being a member of Sbor Premyslovna No. 5, a subordinate lodge of said society governed by the same laws and by-laws, in good standing and entitled to the benefit of said society, died leaving her surviving John Cerny and Anna Borovansky, her only half brother and sister, plaintiffs in the above entitled cause who are alive, of the age of 21 years.

“That on the 19th of August, 1904, a benefit certificate for $600 was issued by the said society under the hands of the officers of said subordinate lodge to said Katerina Hubicka, making the death benefits payable to Joseph and Mary Cunat; that Mary Cunat was at the time of issuance of said death benefit certificate a first cousin to said Katerina Hubicka.

“Stipulation—that the by-laws of the defendant in error, applicable to the case at bar, are as follows: ‘The mortuary benefit shall be $600, toward which all members pay according to the compensation made. To this amount the heirs specified in the certificate are entitled immediately after a member has been received, provided that all financial requirements have been paid * * * This mortuary benefit can be demanded only by her lawful heirs, that is, the husband and children. In case that there is not husband and children, the nearest next of kin shall have the right to make the demand within six months, if residing within the United States. ’

“That the part of charter of the defendant in error applicable to the case at bar is as follows:

‘The purpose for which said corporation is formed is to grant dispensation and charters to subordinate lodges, to promulgate laws for, and to supervise and regulate the actions and proceedings of, said subordinate lodges, and to promote uniformity of action laws and rules therein, to promote friendship, charity and benevolence, to assist its members in sickness and distress, to aid the families of deceased members, and to perform all and singular the rights and duties of said corporation as prescribed by its bylaws and constitution, consistent with the laws of the State of Ohio.’ ”

The stipulation was read in evidence by the plaintiffs, who are plaintiffs in error here. The defendant, the Jednota Cesky Dam, paid to Joseph and Mary Cunat, the beneficiaries named in the certificate, the mortuary benefit, $600; but, about three months before doing so, the defendant received from the plaintiffs the following notice:

“To Sbor Pbemyslovha, No. 5, Jednota Cesky Dam, Chicago:

The undersigned, who are heirs at law of Katerina Hubicka, deceased, claim the benefit under the lodge beneficiaries certificate of said Katerina Hubicka, deceased, who was a member of your lodge.

And therefore kindly take due notice of this and not pay the same to the person named in said certificate, except as the law and statute in such case provides. JOHH CeBSTY;

Brother of Katerina Hubicka. deceased.

(X)

Ahha Bobovavsky,

Sister of Katerina Hubicka, deceased.

Witness to mark,

Joseph L. Vobobsky.

Chicago, March 26, A. D. 1907.”

The plaintiffs introduced evidence tending to prove that John Cerny was the half-brother and Anna Borovansky the half-sister of Katerina Hubicka, deceased; and the defendant introduced evidence tending to prove that Katerina Hubicka was unmarried, had no family of her own, was a first cousin of Mary Cunat, and, at the time of her death, had lived in the family of Joseph and Mary Cunat for twenty-five years, and since she was a small girl, and that she died at their house. The evidence also tends to prove that Katerina was treated in all respects by Joseph and Mary Cunat as if she were one of their children. The plaintiffs claim as the heirs of Katerina Hubicka, deceased.

The payment to Joseph and Mary Cunat, if wrongful, cannot affect the question whether the plaintiffs are entitled to recover.

The Ohio statute in evidence authorizes, in terms, the organization of a company “for the payment of stipulated sums of money to the families, heirs, executors, administrators or assigns of the deceased members of such company or association, in such manner as may be provided in the by-laws.” But that which is designated in the stipulation as that part of the charter of the defendant in error applicable to the case at bar, and which purports to state its purposes, limits the purposes of the defendant in respect to pecuniary aid, by the words, “to assist its members in sickness and distress, to aid the families of deceased members,” etc. It was entirely competent for the defendant to restrict the object of its benevolence to fewer than those named in the statute. Old People’s Home Society v. Wilson, 176 Ill. 94.

In the present case, the object or purpose of defendant, in respect to deceased members, is stated in the charter to be “to aid the families of deceased members.”

A corporation is limited to the purpose or object expressed in its charter. This is true whether the incorporation is by special act of the legislature, or under and in pursuance of a general law. People ex rel. v. Chicago Gas Trust Co., 130 Ill. 268; National Home B’g Ass’n v. Bank, 181 ib. 35; Best Brewing Co. v. Klassen, 185 ib. 37; Steele v. The Fraternal Tribunes, 215 ib. 190.

“The purpose for which a corporation is organized must be ascertained by reference to the terms of its charter.” Distilling Co. v. The People, 161 Ill. 101, 103; Evanston Electric Illuminating Co. v. Kochersperger, 175 ib. 26.

A by-law which is contrary to the charter is unauthorized and void. 1 Morawetz on Corporations, 2nd ed. section 494.

Therefore, the provision in the by-law, contained in the stipulation in evidence, providing that, in a certain contingency, the mortuary benefit may be paid to the heirs of the deceased, even though not members of the family of the deceased, being contrary to defendant’s charter, is unauthorized and void. The deceased had no family, within the meaning of the charter, so that plaintiffs could not have been members of her family. Neither did either of the plaintiffs ever live in the same family with the deceased, nor did either of them contribute anything toward her support, after she, when a young girl, came to this country.

John Cerny was the only witness for the plaintiffs, and he testified that Joseph and Mary Cunat, the beneficiaries named in the certificate of membership, were the sole supporters of the deceased. There is neither law nor equity in support of plaintiffs’ claim.

The judgment will be affirmed.

Affirmed.


text:
    Arthur E. Matteson, Defendant in Error, v. Hamilton Dewar et al., Plaintiffs in Error.
    Gen. No. 14,249.

      Bahkbtjptcy—when discharge effective. A discharge in bankruptcy is effective to relieve the bankrupt from the payment of an obligation represented by a note, even though the schedule filed by such bankrupt upon his application for relief referred to such debt as one based upon an open account. If the schedule is sufficient to place the debtor upon notice, the discharge will not become ineffective merely because ot incompleteness or lack of speeifieness in the scheduling of the debt in question.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and judgment here.
    Opinion filed February 15, 1909.
    Rehearing denied February 25, 1909.
    Rosenbaum & Cahn, for plaintiff in error.
    George C. Fry, for defendant in error.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

Defendant in error was plaintiff and plaintiffs in error were defendants in the trial court. The cause was tried by the 'court, without a jury, and the court found for the plaintiff and assessed his damages at the sum. of $119.50. The suit was brought August 26, 1907, and was on a promissory note made by the defendants, of date December 1, 1905, for the sum of ' $107, with interest at 7 per cent, per annum, after maturity, payable in 60 days after date, to the order of A. E. Matteson. The note was put in evidence by the plaintiff.

George C. Fry, called by the plaintiff, testified that the note was delivered one or two days after its date. The defendants put in evidence a certified copy of an order of discharge in bankruptcy, rendered by the District Court of the United States for the Northern District of Illinois, October 15, 1907, and also a certified copy of Schedule A of Hamilton Dewar, bankrupt. The order is as follows:

“In the District Court of The United States of America, for the Northern District of Illinois, Eastern Division.

Monday, June 3, 1907.

Present, the Honorable Kenesaw M. Landis, Judge.

Whereas, Hamilton Dewar, of Chicago, Ill., in said district, has been duly adjudged a bankrupt, under the Acts of Congress relating to bankruptcy, and appears to have conformed to all the requirements of law in that behalf, it is therefore ordered by this court that said Hamilton Dewar be discharged from all debts and claims which are made provable by said acts against his estate, and which existed on the 3rd day of May, A. D. 1906, on which day the petition for adjudication was filed by him; excepting such debts as are by law exempted from the operation of a discharge in bankruptcy.5 ’

In Schedule A, under the heading “Creditors whose claims are unsecured,” there appears the following in proper columns: “A. E. Matteson, 39th and Cottage Grove, Chicago, Hlinois. Open account, services, about $100.” It appears from the certificate of the clerk that the schedule was attached to the petition in bankruptcy, which was filed May 3, 1906. It is contended by counsel for the defendants that the ' discharge in bankruptcy is prima facie evidence of the release of the bankrupt from all provable debts, and that, if the defendant Hamilton Dewar is within one of the exceptions of the act in respect to bankruptcy, the burden of so proving was on the plaintiff.

Counsel for the plaintiff, Matteson, contends that the burden is upon the defendant to prove that he is not within exception 3 of section 17 of the act of 1898 as amended February 5, 1903. The section is as follows :

“A discharge in bankruptcy shall release a bankrupt from all his provable debts, except such as,

“ (1) Are due as a tax levied by the United States, the state, county, district or municipality in which he resides.

“(2) Are judgments in actions for frauds, or obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another, or for alimony due or to become due, or for maintenance or support of wife or child, or for seduction of an unmarried female, or for criminal conversation.

“(3) Have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy ; or

16 (4) Were created by his fraud, embezzlement, misappropriation, or defalcation, while acting as an officer, or in any fiduciary capacity.®” U. S. Statutes at Large, Supplement 1903, p. 410.

It is contended that it was incumbent on the defendant to prove that he was not within exception 3; in other words, either to prove that his debt to the plaintiffs was duly scheduled, with the name of the plaintiff, his creditor, or to prove that the plaintiff had notice or actual knowledge of the proceeding. If the debt is properly scheduled, we think no further notice was required.

In Collier on Bankruptcy, 5th ed., p. 214, Subdivision 3, the author says: ‘ ‘ Jurisdiction of the creditor now depends, not on the petition, but on the facts, either that the debt was ‘duly scheduled, in time for proof and allowance, ’ or, if not, that the ‘ creditor had notice or actual knowledge of the proceedings in bankruptcy. ’ ” A corollary from this is, that the filing a proper schedule in apt time is equivalent, in effect, to notice to, or actual knowledge of the creditor of the proceedings in bankruptcy, and vice versa. In the present case the defendants put in evidence a certified copy of a schedule which was attached to the petition in bankruptcy and filed with the petition May 3, 1906. The debt to the plaintiff was, therefore, “scheduled in time for proof and allowance.” The language of exception 3 is, “except such as * * * have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt,” etc. Collier, commenting on exception 3, says: “The cases thus far are uniform in interpreting the words of this subdivision to mean what they say,” citing cases. Collier on Bankruptcy, p. 214, Subdn. 3. The schedule filed by the defendant Hamilton Dewar contains the name and address of Matteson, the name of his creditor, and the amount of the debt, about $100. Counsel for plaintiff, in his argument, objects that the schedule, in stating the debt to be on open account, is not sufficient; that the debt described cannot be said to be the joint debt of the defendants for $107, evidenced by their note.

Collier, commenting on the statutory provision in reference to the schedule of provable debts, says: “Accuracy is not so important in stating the amount of the debt, its consideration, or when and where contracted; but these facts should be fully set out where possible.” Collier on Bankruptcy, p. 109.

Manifestly, what is thus said by the author is true. The object of scheduling a provable debt is, that the creditor may have notice thereof, so that, if he desires to do so, he may prove his claim and participate in the assets of the bankruptcy, if any.

There can be no question, as we think, that if Hamilton Dewar had notified the plaintiff in writing that he had scheduled his indebtedness to him, in bankruptcy, in the manner in which he did schedule it, this would have been amply sufficient. We think the schedule in question sufficient.

It is not necessary to pass on the question, whether the burden was on the plaintiff or on the defendants, to show that the defendant, Hamilton Dewar, was not within exception 3 or section 17, inasmuch as the defendants put the schedule in evidence, and no question was raised on the trial in respect to the burden of proof.

The judgment being erroneous as to Hamilton Dewar was erroneous as to both defendants; therefore, it will be reversed and judgment will be entered here in favor of Arthur E. Matteson, the defendant in error, and against Mary Aliene Dewar, plaintiff in error, for the sum of $107, with interest at the rate of 7 per cent, per annum from February 1,1906.

Reversed and judgment here.


text:
    Samuel Libitsky, Plaintiff in Error, v. Dora Libitsky, Defendant in Error.
    Gen. No. 14,266.
    Appeals and errors—how misprisions of transcript maw Be corrected. Misprisions in the original transcript filed on appeal may be corrected by the filing of an additional transcript showing accurately the record as it stands in the trial court.
    Divorce. Error to the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed February 15, 1909.
    F. J. Karasek and Charles W. Espey, for plaintiff in error.
    Weissenbach & Meloan, for defendant in error.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The defendant in error filed a bill against plaintiff in error for a divorce, in which it is averred, in substance, as follows: For more than a year last past complainant has been continuously an actual resident of this State. September 10, 1890, at Bishof Kiew, in Russia, he was lawfully united in marriage with Doha Libitsky, the defendant, and he and she lived together as husband and wife till about May 19, 1905. About June 1, 1896, the defendant, wilfully and without any reasonable or just cause, deserted and abandoned complainant, and refused to cohabit with him as his wife, and thence hitherto has so refused. About December 3, 1900, at Bishof Kiew, in Russia, defendant committed adultery with a man whose name is unknown to complainant. A summons was issued and returned not found. Complainant made affidavit that the defendant’s place of residence was Bishof, Russia, and notice was given by publication and mailing copies of notice, as required by the statute; the defendant was defaulted and the hill taken for confessed, and the court, after hearing evidence in open court, rendered a decree finding»that the complainant had been a resident of this State one whole year prior to the time of filing the bill; that defendant was guilty of wilful desertion of complainant for more than two years, without any reasonable cause, and also was guilty of adultery since her marriage with the complainant, as charged in the bill, and decreed a dissolution of the bonds of matrimony between complainant and defendant.

Counsel for the defendant, plaintiff in error here, contend that there are defects in the affidavit of non-residence of the defendant, and that the jurat has no date, and that these defects affect the jurisdiction of the court. Counsel state that in the affidavit and the published notice, a copy of which is certified to have been mailed to defendant, her name is given as Dobe instead of Doha. This is true as to a transcript filed here March 3, 1908, and which is certified to be complete; but in an additional transcript filed here April 13, 1908, by leave of the court, the name of the defendant in the affidavit of non-residence and in the published and mailed notice is Doha Lubitsky. The brief for plaintiff in error was filed here March 16, 1908, before the additional transcript was filed. Hence the objections which the additional transcript obviates. Counsel further say that the evidence fails to support either of the grounds for divorce set forth in the bill. We think this statement rather extraordinary. It would subserve no useful purpose to refer in detail to the evidence. We have carefully read and considered it, and are of opinion that it sustains both grounds for divorce stated in the bill.

The decree will be affirmed.

Affirmed.


text:
    City of Chicago, Appellee, v. Henry Miller, Appellant.
    Gen. No. 14,530.
    1. Ordinances—when providing for fine, etc., become effective. Ordinances which provide for the imposition of “any fine, penalty, imprisonment or forfeiture” do not take effect until ten days after publication.
    2. Judicial notice—of what not taken. The Appellate Court will not take judicial notice of municipal ordinances and will not guess at what an ordinance contained before it was amended or otherwise indulge in conjecture as to the state of the municipal code upon the subject in question at the time of the alleged violation of a penal provision.
    Action commenced before justice of the peace. Appeal from the Criminal Court of Cook county; the Hon. George A. Dtjpuy, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed.
    Opinion filed February 15, 1909.
    Ammen, Humphrey & Joyner, for appellant.
    George H. White, for appellee; Henry M. Seligman, of counsel.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The city of Chicago filed a complaint before a justice of the peace, alleging that, November 3, 1906, Henry Miller, the appellant here, unlawfully committed a fraud in regard to the weight of coal, in violation of section 2487 of an ordinance of the city, entitled “An ordinance for revising and consolidating the general ordinances of the city of Chicago,” passed March 20, 1905, and a warrant was issued for the arrest of the defendant on said complaint, and the defendant was arrested. The justice found the defendant guilty , of a violation of said section 2487, and fined him $25, and defendant appealed to the Circuit Court, where the cause was tried by the court, without a jury, by agreement of the parties, and the court, November 13, 1907, found the defendant guilty of a violation of said section 2487, and November 16, 1907, after overruling a motion of the defendant for a new trial, entered judgment on the finding for $25 and costs.

February 24,1908, a day'of the February term 1908, the court, on motion of the plaintiff, entered an order whereby, after reciting that by error in the minutes of the clerk, the finding and judgment of the court were written in said minutes as being for a violation of section 2487, instead of being in violation of section 741, as amended October 22, 1906, it is ordered as follows: “It is therefore ordered, adjudged and decreed that the record of this cause be amended so as to show that said finding and judgment were for a violation by defendant of section 741 of the Revised Municipal Code of Chicago of 1905, as amended October 22, 1906.” The question of the validity of this amendment is not discussed by counsel.

The motion of defendant for a new trial is in writing, and one of the specified grounds is, “The ordinance, under which the defendant was found guilty, was not in force at the time the offense was committed. ’ ’

The evidence, without exception, is that the offense, if any, was committed October 29, 1906. The ordinance, as the same was put in evidence by plaintiff, and which it is claimed the defendant violated, and for the violation of which he was fined, is as follows:

“Published by authority of the City Council of the City of Chicago, Wednesday, October 24, 1906.

An Obdotaetce.

“Amending section 741 of chapter XVI of an ordinance entitled the Revised Municipal Code of Chicago of 1905.

“Be it ordained by the City Council of the City of Chicago.

“Section 1. That section 741 of chapter XVI of an ordinance entitled the Revised Municipal Code of Chicago, passed March 20, 1905, be and the same is hereby amended to read as follows:

“ ‘741. Penalty. Any person violating any of the provisions of this chapter, or who shall deliver to any purchaser a less quantity than two thousand pounds of coal for each ton purchased (or a proportionate amount for any part of a ton), or who shall practice any fraud or deceit in the sale or delivery of any coal purchased, to be delivered in said city as aforesaid, shall be fined not less than twenty-five dollars, nor more than two hundred dollars for each offense.

“ ‘Section 2. This ordinance shall take effect and be in force from and after its passage and publication. A. C. Anson, City Clerk.’ ”

It will be observed that the ordinance is not certified by the clerk, but no objection seems to have been made to its introduction. Section 3 of article 5 of “An act to provide for the incorporation of cities and villages,” under which the city of Chicago is incorporated, is as follows:

“All ordinances of cities and villages imposing any fine, penalty, imprisonment or forfeiture, or making any appropriation, shall, within one month after they are passed, be published at least once in a newspaper published in the city or village, or, if no such newspaper is published therein, by posting copies of the same in three public places in the city or village; and no such ordinance shall take effect until ten days after it is so published. And all other ordinances, orders and resolutions shall take effect from and after their passage, unless otherwise provided therein.” Hurd’s Bev. Stats. 1905, p. 304, parag. 64.

Amended section 741 was passed October 22, 1906, and was published October 24, 1906. Ten days after such publication expired November 3, 1906, so that the ordinance was not in force October 29, 1906, when the evidence is that the offense, if any, was committed. The only answer to this made by plaintiff’s counsel, is this: “This court cannot guess as to what section 741 contained before it was amended. If the ordinances were substantially the same and simply the penalty changed, there is nothing in the decisions referred to by counsel that would justify the discharge of the defendant.” If original section 741 was such as to warrant the plaintiff’s conviction on the oral evidence, and the plaintiff had put the original section in evidence, a different question might be presented ; but the original section is not in evidence, and, as well said by counsel, we cannot guess what that section was, and certainly cannot guess that it was such as to warrant the finding and judgment of the court in a quasi criminal action.

Our law, fortunately, does not permit the depriving one of his money or property by mere guess-work.

The plaintiff was permitted by the court, over the objection and exception of the defendant, to put in evidence an ordinance published November 7, 1907, purporting to amend section 741 of the Revised Municipal Code of Chicago of 1905, as "amended, October 22, 1906, “so as to read as follows”. Next after the quoted words the November ordinance follows. The admission of this ordinance in evidence was reversible error. The ordinance was not in force October 29, 1906, when the offense, if any, was committed, and very clearly it operated as a repeal of section 741, as amended October 22,1906. It is a revision of amended section 741, and a substitute for it, and, when in force, operated as a repeal of amended section 741. It provides in express words, that the section, as amended, “shall be and the same is hereby amended so as to read as follows.” The ordinance of November 7, 1907, has no saving clause, and when it took effect the amendatory ordinance of October 22, 1906, was as if it had never existed. Palmer v. City of Danville, 166 Ill. 42.

The judgment will be reversed.

Reversed.


text:
    The People of the State of Illinois, Appellant, v. William A. Paulsen et al., Appellees.
    Gen. No. 14,565.
    1. Judicial notice—of what taken. The signature of a public officer to a document required to be signed by him in his official character will be judicially noticed. .
    2. Judicial notice—of what taken. The court will take judicial notice of the official capacity of the signer of an official document even though such official capacity is not indicated by the writing.
    3. Suretyship—right of surety to arrest principal. A surety who has entered into a recognizance for the appearance of one accused of crime is entitled to arrest such person at any place in the state; such surety may likewise, in manner as provided by statute, authorize the sheriff as his agent to arrest such principal.
    4. Recognisance—When forfeiture improper. Held,, that the forfeiture of the recognizance entered into in this case was improper in view of the fact that the sureties appeared to have caused the arrest of their principal and that such principal had been legally discharged under a writ of hateas corpus.

      Scire facias. Appeal from the Criminal Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed February 15, 1909.
    John J. Healy, Charles F. McKinley and Hobart P. Young, for appellant.
    Mayer, Meyer & Austrian, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The proceedings in this cause were on a writ of scire facias, issued December 20, 1904, and pleas thereto filed by the defendants, William A. Paulsen and Edwin C. Casey. The writ sets forth the following: An order of the Supreme Court entered December 11, 1900, in the cause of William A. Paulsen v. The People of the State of Illinois, admitting said Paulsen to bail, on his recognizance, with William M. Booth and Edwin A. Casey as sureties, in the penal sum of $5,000, conditioned that said Paulsen would appear at the next term of the Criminal Court of Cook county, and from term to term thereafter, which said order was properly certified and was filed in the Criminal Court December 16, 1904; a judgment of the Supreme Court in Paulsen v. The People, entered February 21, 1902, affirming the judgment of the Criminal Court of Cook county, in The People v. William A. Paulsen, convicting said Paulsen; the recognizance of said Paulsen and of William M. Booth and Edwin A. Casey, his sureties, in the penal sum of $5,000, conditioned in conformity. with the aforesaid order of the Supreme Court, which recognizance was filed with the clerk of said Criminal Court December 16,1904; at the December term, 1904, of said Criminal Court said Paulsen was called, but did not appear, and William M. Booth and Edwin A. Casey were also called, but came not, nor did they bring said Paulsen into court, but therein made default, and the default of said Paulsen and his said sureties was entered of record, their recognizance was declared forfeited, and a writ of scire facias directed. The summons then follows, directing the sheriff to summon Paulsen and his sureties to appear at the January term of said Criminal Court and show cause, if any they have, why the aforesaid forfeiture should not be made absolute. The writ was not served on William M. Booth, nor did he appear.

Numerous pleas were filed by the defendants, Paul-sen and Casey; but as no question is raised in respect to them in the arguments of counsel, we think it unnecessary to specify them. On the trial the plaintiff put in evidence the recognizance of Paulsen and his sureties, and the orders heretofore mentioned, including the order of forfeiture of the recognizance.

The defendants offered in evidence certain endorsements on the recognizance and a certain certificate, which are as follows:

“I hereby appoint Thomas E. Barrett, Sheriff of Cook county, my agent to arrest the body of the within named William A. Paulsen, and deliver him to the Sheriff of Cook county this 12th day of December, 1904. Edwin A. Casey, surety.”

“State of Illinois, 1 County of DuPage. / s "

I, T. M. Hull, clerk of the Circuit Court of the County and State aforesaid, do hereby certify that William A. Paulsen was this day discharged from custody on a writ of habeas corpus by said Circuit Court of the 16th Judicial District of Hlinois from imprisonment on the within certified bond.

T. M. Hull, Clerk.

“Executed this-recognizance by arresting the body of the within named William A. Paulsen, and taking him into my custody this 13th day of December, 1904. In compliance with a writ of habeas corpus served on me thereafter and while he was so in my custody I did on the 27th day of December, 1904, produce the body of the said William A. Paulsen before the Hon. Charles A. Bishop, Judge of the Circuit Court of the Sixteenth Judicial District at Wheaton, DuPage county, Ill., who discharged the said William A. Paul-sen from my custody as per certificate of T. M. Hull, Clerk of said Court, hereon endorsed.

Thomas E. Barrett, Sheriff,

By George E. Leuke, Deputy.”

The court sustained plaintiff’s objections to the certificate signed “T. M. Hull, Clerk,” and the endorsement signed “Thomas E. Barrett,” etc., and admitted all the other evidence; but, subsequently, during the trial, withdrew its ruling and admitted the endorsement signed “Thomas E. Barrett.” This endorsement has the file mark, “Piled in the Criminal Court of Cook county, January 21,1905. William C. Lawson, Clerk.” There is also certain other evidence put in by the defendants. The jury, by direction of the court, found for the defendants and judgment was rendered on the verdict.

The plaintiff’s counsel discusses, in his argument, only two propositions on'which he says he relies, for a reversal, which propositions are: (1) that the court erred in admitting in evidence the statement endorsed on the recognizance, purporting to have been made by the sheriff; and (2) that the court erred in directing the jury to find for the defendants.

Counsel contends that the endorsement purporting to have been made by the sheriff was inadmissible as evidence, in the absence of proof of the signature, “Thomas E. Barrett, by George E. Lenke, Deputy,” that such endorsement is not like a return of the sheriff to a writ, when judicial notice will be taken of the sheriff’s signature to the return.

Sections 13, 14 and 15 of Division 3 of the Criminal Code are as follows:

“Sec. 13. The sureties or any of them may require the sheriff, coroner or any constable of the county where the principal may be found, to make the arrest within his county, by producing a certified copy of the recognizance, and, in person, or by agent, accompanying the officer to receive the person arrested, and upon tender to such officer of like fees as are allowed for executing capias in criminal cases.

“Sec. 14. The surrender shall be made to the sheriff of the county where the principal is required to appear, or to the warden of the penitentiary, when so required.

“Sec. 15. On such surrender, and the delivery to bim of a certified copy of the recognizance, the sheriff or warden shall take such person into custody, and, by writing, acknowledge such surrender, and thereupon the sureties shall be discharged from such recognizance, upon payment of all costs occasioned by any proceedings upon the recognizance.” Hurd’s Stats. 1905, p. 734.

By section 16 the sheriff is required, when a surrender is made to him, to “by writing acknowledge such surrender.” Therefore such written acknowledgement, when made, is an official act of the sheriff, as much as the sheriff’s return to the writ of scire facias in this case, and we perceive no sound reason why this signature should not be judicially noticed in the former case as well as in the latter. The greater weight of authority seems to be that the signature of a public officer to any document required to be signed by him, in his official capacity, will be judicially taken notice of. Walcott v. Gibbs, 97 Ill. 118; McCarver v. Herzberg, 120 Ala. 523, 534; Wetherbee v. Dunn, 32 Cal. 106; Herriot v. Broussard, 8 Martin (La.) 133.

In Walcott v. Gibbs, supra, it was objected that there was no evidence that tax receipts, which were in evidence, were executed, by the collector, in respect to which the court say: “Proof of the execution of an official instrument is not always necessary. As a general rule, courts take judicial notice of the public officers, and in some cases their signatures, within their respective jurisdictions, and where the trial court in such cases acts upon such judicial notice, this court will presume, in the absence of any evidence to the contrary, that it acted properly.”

When a writing is required to be signed by an officer in his official capacity, it is quite as important that it shall appear that he signed in his official capacity, as that the signature is genuine, and it has frequently been held that the court will take judicial notice of the official capacity of the signer, even though it is not shown by the writing.

In Thompson v. Haskell, 21 Ill. 215, the return of the summons was signed merely “James A. Dick.” Held, that the court would take judicial notice that James A. Dick was the sheriff. Dyer v. Last, 51 Ill. 179, and Brackett v. The People, 115 id. 29, are to the same effect.

In Thielmann v. Burg, 73 Ill. 293, it was objected that a notarial seal was not attached to a jurat. The court say: “A court will take judicial notice of the civil officers of the county in which it holds its sittings,” citing cases. We are of opinion that the court was right in taking judicial notice that the signature to the endorsement in question was genuine.

In support of the second proposition, viz.: that the court erred in directing a verdict for the defendants, it is urged by plaintiff’s counsel that the arrest of Paul-sen by the deputy sheriff of Cook county, in DuPage county, by virtue of a copy of the recognizance, did not constitute a surrender to the sheriff of Cook county. There is evidence in the record, including the testimony of Paulsen, himself, that he was in Wheaton, PuPage county, Illinois, December 13, 1904, when he was arrested.

Therefore, we will consider the question on that hypothesis. Sections 11 and 12 of Division 3 of the Criminal Code are as follows:

Sec. 11. In all cases of bail for the appearance of any person charged with a criminal offense, his sureties or any of them may, at any time before default upon the bond of recognizance, surrender the principal in their exoneration, or the principal may surrender himself to the proper officer.

“Sec. 12. For the purpose of surrendering the principal, the sureties or any of them may arrest the principal at any place, or may authorize any other person to make the arrest.”

By section 11 the sureties can surrender their principal charged with a criminal offense, and by section 12, they may arrest him at any place or may authorize any other person to make the arrest. By section 13, quoted supra, the sureties may require the sheriff to make the arrest, by producing a certified copy of the recognizance, and tendering fees, etc.

In the present case, the surety, Edwin A. Casey, December 12, 1904, gave to the sheriff a certified copy of the recognizance, with an endorsement on it, signed by bim, appointing the sheriff his agent to arrest Paul-sen. The learned judge of the trial court held that as the surety might, on a certified copy of the recognizance, arrest Paulsen at any place in the State, the sheriff, his agent, could exercise the same power. In this we concur. The statute expressly authorizes the surety to arrest his principal by an agent. The sheriff arrested Paulsen on a certified copy of the recognizance, by the authority of Casey, the surety, heretofore mentioned, December 13, 1904, and the order declaring the recognizance forfeited and directing a writ of scire facias to issue, was not entered till December 16, 1904. When the arrest was made, the surrender of Paulsen to the sheriff, by his surety, Casey, was complete, and effective to discharge his sureties from liability on the recognizance. Paulsen remained in the custody of the sheriff, after his arrest, until discharged from his custody in pursuance of certain habeas corpus proceedings of the Circuit Court of Du-Page county, the Hon. Charles A. Bishop presiding. The return of the sheriff of Cook county to the writ of habeas corpus, is, in substance, that Paulsen was held in custody by him, “under and by virtue of a surrender on a recognizance, which said recognizance was entered on the 12th day of December, A. D. 1900, before the sheriff in and for said county of Cook, as by reference to said recognizance, with the endorsement of said surrender thereon, will more fully and completely appear.” December 27, 1904, the DuPage Circuit Court entered an order, finding that Paulsen was unlawfully held in custody, and discharging him from the custody of Joseph Hiser, sheriff of DuPage county, and Thomas E. Barrett, sheriff of Cook county. It appears that Paulsen was confined in the jail of DuPage county from December 14th, the date of the habeas corpus writ, till December 27th, the date of his discharge, except on Christmas day.

There is evidence tending to prove that, February 22, 1904, the next day after the Supreme Court affirmed the judgment of the trial court, and while the recognizance remained in the hands of the sheriff, Paulsen went to the sheriff’s office in company with Mr. Booth, his surety, and said to the sheriff that he was there for the purpose of surrendering himself, and the sheriff said he had no papers and could not take him. This was testified by Paulsen, and it is not contradicted. However, in view of the surrender of December 13, 1904, we think it unnecessary to express any opinion on the effect of this evidence.

Appellees have assigned as cross-error the denial by the court of a motion made by Paulsen, supported by affidavits, to vacate' and set aside the forfeiture of the recognizance. It appears that a similar motion had been made by Paulsen before another judge, and had been denied, and Judge Windes, who presided on the trial involved in this appeal, denied the motion on the ground that he would not review the decision of the other judge. It is sufficient to say, that our opinion, based on full consideration of the record, is that the forfeiture should be set aside.

We find no reversible error in the record, and the judgment will be affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    The People, for use of State Board of Health, Appellee, v. Leonard D. Koehler, Appellant.
    Gen. No. 14,025.
    1. Jury triax—act of June 17, 190S, construed. This act which provides in substance that no person shall be imprisoned for nonpayment of a fine, etc., except upon a conviction by jury (unless the jury is waived in writing), strips the trial judge of the power, where a jury has not been waived, to give a peremptory instruction to find the defendant guilty in an action coming within the scope of the act.
    2. Evidence—when transcript not competent to establish prior conviction. Prior conviction for violating the statute prohibiting the practice of medicine without a license, cannot be shown by a transcript which fails to show jurisdiction of the person alleged to have been so convicted.

      3. Evidence—what competent as tending to show license to practice medicine. Held, that the particular evidence in this case was competent upon behalf of the defendant to show that previous to the alleged commission of the offense he was possessed of a license to practice. (The full court not concurring.)
    4. Statutory law—how penal statutes construed. A penal statute is to be strictly construed, but is not to be construed with such technicality as to defeat its object.
    Action commenced before justice of the peace. Appeal from the Criminal Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed December 7, 1908.
    Rehearing denied January 7, 1909.
    Charles J. O’Connor, for appellant.
    Carl B. Chindblom, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

Leonard D. Koehler, the appellant, was prosecuted in April, 1906, before a justice of the peace of Cook county, at the instance of the State Board of Health, but in the name of The People, in an action entitled on the justice’s docket and transcript “Action— practicing medicine without a license, violation of State Board of Health Act.” On. the trial he called for a jury and the jury returned the verdict: “We, the jury, find the issues for the plaintiff and find the defendant indebted to the plaintiff in the sum of Two Hundred Dollars for practicing medicine without a license in violation of Section 9 of an Act to regulate the practice of medicine in the State of Illinois, approved April 24, 1899, in force July 1, 1899, and find that the said defendant is guilty of practicing medicine as defined in Sections 2 and 3 of said Act.” Thereupon the justice entered judgment that the plaintiff have and recover of the defendant two hundred dollars and costs; and that “defendant be committed to the county jail of Cook county, Illinois, until fine and costs are paid, not to exceed ninety days, or until discharged by due process of law.”

From this judgment Koehler appealed to the Criminal Court of Cook county.

In the Criminal Court, under date of February 7, 1907, is the record that “the parties hereto come by their respective attorneys, and the said defendant now here says that he is not guilty as charged.” The coming of the jury being then noted, the record proceeds :

“After hearing the testimony of witnesses the court instructs the jury to find the issues for the plaintiff and for a verdict say: ‘We, the jury, find the defendant guilty and assess the fine at Two Hundred Dollars’.”

There is no record (other than this) of the return of a verdict either in the common law record or in the bill of exceptions.

The record merely thereafter notes a motion for a new trial by the defendant, the overruling of that motion, and this judgment:

“Therefore it is considered, ordered and adjudged by the court that said defendant be fined in the penal sum of two hundred dollars for the benefit of said plaintiff and pay all costs of these proceedings to be taxed, and that execution issue therefor. And it is further ordered by the court in default of payment of said fine and costs, the said defendant be committed to the county jail of Cook county until fine and costs are paid, providing such term of imprisonment does not exceed ninety days.”

The bill of exceptions, after reciting the evidence and certifying that the matter so recited “was all the evidence offered or heard at the trial of the above entitled cause,” merely has this note concerning the verdict:

“The Court : Gentlemen of the jury, I give you these instructions:

“The court instructs the jury to find the issues for the plaintiff. You will all sign the form of the verdict handed you by the Bailiff. To which action of the court in so instructing the jury to find for the plaintiff, the defendant by Ms counsel then and there duly excepted. ’ ’

Following this in the bill of exceptions is only the written motion by the defendant for a new trial, wMch includes a prayer that “the verdict of the jury be set aside,” the overruling of said motion and exceptions thereto, and the allowance of the appeal.

In this court on the appeal, the defendant has as-' signed as error the refusal of the trial court to grant a continuance for the purpose of securing witnesses; its refusal to admit proper evidence for the defendant; its striking out certain proper evidence after it had been admitted; its admission of improper evidence for the plaintiff; its instructing the jury to find the issues for the plaintiff; its refusal to instruct them for the defendant; and “that the verdict was contrary to the law-and the evidence.”

In view of the fact that on June 17, 1893, the Legislature enacted this statute, still in full force:

“An Act to provide a trial by jury in all cases where a judgment may be satisfied by imprisonment.

“Section 1. Be it enacted, etc., That no person shall be imprisoned for non-payment of a fine or a judgment in any civil, criminal, quasi criminal, or qui tarn action, except upon conviction by jury. Provided: that the defendant or defendants in any such action may waive a jury trial by executing a formal'waiver in writing; Provided, further, that this provision shall not be construed to apply to fines inflicted for contempt of court; and' provided, further, that when such waiver of jury is made, imprisonment may follow judgment of the court without conviction by a jury”—(which Act was afterwards re-enacted without material change as a part of the Justice and Constable Act of June 26,1895, so that it stands repeated on the statute books;),—we cannot see how the Criminal Court had power to enter a money judgment or fine providing in express terms for imprisonment until it is paid, without a verdict of a jury or a waiver of a jury in writing.

Nor even, leaving out of consideration the fact that this record nowhere shows any verdict at all (unless by implication), but only an instruction to the jury to render a verdict—an omission not commented on by counsel—do we see how, within the evident meaning and intent of this Act of 1893 an instructed verdict for the People can be considered the verdict of a jury at all. It is the voice of the judge, not of the jury, and certainly not more “the verdict of a jury” than is the finding of the judge when a jury is waived by appearance in open court and the cause submitted to the judge. But in that case, in a civil action of tort, for example, although a valid judgment might go, an execution against the body could not be issued on it, and if issued would be quashed. Swan v. Mulherin, 67 Ill. App. 77. It was the evident intent of the law in all cases in courts of record and in justice courts, in cases civil, criminal, quasi criminal or qui tarn, with the single exception of contempt cases, to protect the defendant from what the legislature chose to consider the danger of judicial interference with his liberty on account of any money judgment or fine, unless a jury of his peers had passed on his case, or unless he had formally and by writing thrown himself on the consideration of the judge alone.

It would make the statute futile and farcical to construe it to mean that the mere formal and perfunctory signing of a verdict of conviction by a jury at the command of the trial judge, could render possible a judgment of imprisonment which the judge could not make by himself, even if a jury had been orally waived and the cause submitted to him voluntarily.

If this were a judgment in a civil cause in tort, the judgment might be valid and correct, although execution against the body could not issue on it; but it is “a fine” in a penal proceeding, and so expressly denominated. The defendant by the judgment is “fined,” and the contingent imprisonment is made, and is required Tby the law to be made, an integral part of the judgment. That judgment must stand or fall as a whole. It must therefore be reversed as not depending on the verdict required by the statute and as the result of an improper instruction of the jury. The last error at least is covered by the eleventh assignment of error.

This is sufficient to dispose of the cause and is all that the court as a unit is willing to express in the decision of it. But as it may be tried again, the majority of the court, including the writer, think it both proper and desirable to express an opinion on the conduct of the cause and the rulings on evidence on which it turned —which rulings led the judge to the further and final one of the peremptory instruction.

The appellant Koehler was prosecuted or sued, as the appellee may choose to call it, for violating Section 9 of the Act of April 24, 1899, entitled “An Act to regulate the practice of medicine in the State of Illinois and to repeal an Act therein named.”

Section 2 of that Act provides that “No person shall hereafter begin the practice of medicine or any of the branches thereof, or midwifery -in this State without first applying for and obtaining a license from the State Board of Health to do so.”

Section 9 provides that “Any person practicing medicine or surgery or treating human ailments in the State without a certificate issued by this board in compliance with the provisions of this Act * * * shall, for each and every instance of such practice or violation, forfeit and pay to the People of the State of Illinois, for the use of the said Board of Health, the sum of one hundred dollars for the first offense and two hundred dollars for each subsequent offense, the same to be recovered in ait action of debt before any court of competent jurisdiction * * .* Provided that this section shall not apply to physicians who hold unrevoked certificates from the State Board of Health issued prior to the taking effect of this Act.”

The 12th section of this Act repeals the former Acts regulating the practice of medicine.

Before the trial of appellant began an application addressed to the discretion of the court was made by the defendant for a continuance on account of the alleged absence of certain medical witnesses from the city. It was denied. The People then put on as a witness a woman who was in April, 1906, an employe of the State Board of Health on a weekly salary, her duties being, as she says, “In case of a report I went out to see whether it was true, whether they were practicing medicine or not.” She testified that she called on Koehler and told him she was not feeling very well. As a matter of fact, there was nothing the matter with her. Koehler told her she had stomach trouble and gave her a prescription and told her to come back in five days.

Then the People introduced, over the objection of the defendant, what purported to be a transcript of a judgment entered by John 0. Everett, justice of the peace of Cook county, in a suit of the People for use of the State Board of Health against Koehler, which came to Justice Everett’s court by change of venue (no complaint therefore or service of summons being shown) on November 15, 1901.

On December 21, 1901, the defendant defaulting, it appeared from said alleged “transcript” the justice found the defendant guilty of practicing medicine without a license, and fined him. $100 and costs, with an order of commitment, etc. This “transcript” was introduced to prove a prior conviction. To it was appended the certificate of Justice Everett, under his seal, that it was a true and correct transcript of the judgment given by him in the suit, and that said transcript and the papers herewith accompanying contain a full and perfect statement of all the proceedings before bim in the said cause. No “accompanying papers” were produced. The People then rested. A motion was made by the defendant for a dismissal of the cause and for a peremptory instruction for the defendant, which motions were refused.

Koehler then took the stand in his own behalf, and testified that he had been practicing medicine over twenty-six years in Chicago, and that he was fifty-seven years old. He then testified that in October, 1880, he received by mail from the State Board of Health a certificate of a license to practice medicine in Illinois. Proceeding to say again that the license he received authorized him to practice medicine, a discussion ensued between court and counsel for both parties. In the course of it the witness testified that on the first Friday in June, 1886, some one broke into his room, opened his trunk and stole therefrom a medical diploma, the certificate from the State Board of Health about which he had testified, and other valuables, and that he had never been able since to locate the certificate, but had continuously practiced medicine. A further discussion following, the court finally ruled as follows:

“I am going to sustain the objection to oral testimony as to the contents of that license. He said he obtained a certificate. That does not prove a license. Tour best evidence is a certified copy of a public record.”

The defendant then testified that he had made an effort to get a certified copy of the certificate several times, but his attempt to prove the contents of correspondence with the Secretary of the State Board of Health was excluded as not the best evidence, as was also the result of an interview with the attorney of the State Board of Health and what happened at a meeting-arranged by that attorney between the defendant and the State Board of Health in November or December, 1900. Defendant then attempted to prove that he made a request of the Secretary of the State Board of Health, after the alleged loss of the license, to furnish him a copy of it, but this was excluded.

Then counsel for Koehler stated to the court that he desired the case be passed that he might prove by Dr. Riley, the secretary aforesaid, that records of the State Board of Health during 1880 and prior and subsequent thereto were in bad shape, and that after four years work Dr. Riley still found ninety cases of licenses of which there was no record. Most of these licensees, it was stated, had secured a mandamus to get a copy of their license in the record.

Counsel for the People said: “I have gone over this matter with Dr. Koehler and his attorney, and they had ample time to mandamus.”

Whereupon the court said, in effect: “Suppose all that you expect to prove by Dr. Riley is admitted, I could not from those statements continue the case.” The court then, on the motion of the prosecutor, struck out, “everything in Koehler’s testimony in which he uses the word license or claims to have received a license, on the ground that it would not be competent for him to testify as to what the paper which he claims to have received was, but the paper speaks for itself.”

After this Koehler, on redirect examination, attempted to prove that after graduation at a medical college he had enclosed his diploma and the legal fee to the Board of Health with certain affidavits (these being the requirements of the Act of 1877 about the practice of medicine in Hlinois), and about five days afterward received a license. The word license being objected to, it was stricken out; the witness then said it was a document, but this was also stricken out, as was also his statement, again repeated, that he received a certificate from the Board of Health.

The peremptory instruction for the People followed, which compelled the signing of a verdict assessing the fine provided for a second or subsequent offense.

The majority of the court think the so-called “transcript” certified by Justice Everett insufficient to prove anything. If this “transcript,’’ certified to be a “statement of the proceedings,” is to be considered equivalent to a “certified copy of the proceedings” before the justice, and competent evidence under Section 17 of the Statute on Evidence of 1872, it nevertheless fails to prove the judgment, because no service on or jurisdiction of the person of the defendant is shown. As Judge Breese said in Willoughby v. Dewey, 54 Ill. 266, when deciding on the competency of a justice’s docket—-“Competency of evidence is one thing—what it may prove is an entirely different thing.”

As this “transcript” did not prove a prior conviction, the judgment was erroneous.

But beyond this we think that the court erred in the exclusion of evidence and in striking out those statements of the defendant tending to prove that he had conformed to the requirements of the law of 1877 in relation to procuring a license to practice medicine and had secured one, the certificate of which had since been stolen from him.

We think the question was whether he had ever received a license—not what the contents of the certificate of that fact were; and that an elaborate discussion of primary and secondary evidence is therefore out of place. Judge Cartwright in The People v. Langdon, 219 Ill. 189, says that the Act of 1899 is penal in character and is to be strictly construed, although not with such technicality as to defeat its object.

While it is true that under the doctrine of Williams v. People, 121 Ill. 84, it may properly be held that the burden of proving that the defendant came under the proviso or exception of Section 9 of the Act of 1899, was on the defendant, we think that burden is carried by the proof that on compliance with the requirements of the law of 1877 a “license” or “leave” was granted, the certificate of which was afterward lost.

Under a “penal statute, to be strictly construed,” and “without such technicality as to defeat its object,” we think the burden after such proof would shift back to The People to prove the falsity of defendant’s claim.

It ought, under the theory of The People in this case about the public records of public bodies, to be peculiarly within the power of the Board of Health to do this, if it be the fact.

The case of Rhind v. Wilkinson, 2 Taunton, 237, is not applicable. That was not a prosecution on a penal statute against a person claiming, adversely to the prosecution, that he had a license to carry on an occupation or trade, but- an action on some contracts of insurance by a person not entitled to recover unless he showed a license from the King in Council allowing and authorizing the particular voyage the lost ship made. He was obliged to show both its existence and its terms to recover, and by the best evidence obtainable, which was a copy or register of it.

We do not intend by this opinion to lay down general rules regarding the amount or burden of proof in “license” eases, so-called. We are treating of the evidence in and of the circumstances of this case alone.

The judgment in this cause is reversed and the cause remanded to the Criminal Court.

Reversed and remanded.