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Spragins o. Houghton.

The agreed case admits that one Kyle voted at the general election in 1838, for Governor and other officers, and that Kyle was a foreigner, and had not been naturalized under the laws of Congress, but had resided in the county of Jo Daviess, where the vote was received, for more than six months immediately preceding the election. The case further admits that Spragins acted as a judge of the election, and knew that Kyle had not been naturalized, yet received his vote. It is also admitted that Spragins believed that Kyle was not a qualified voter, according to the Constitution and laws of this State, because he had not been naturalized.

In ordinary civil actions, where a defendant admits that he is guilty, such admission would justify the Court in giving judgment against him ; but this is a highly penal action, and if the defendant is guilty, in addition to a fine of one hundred dollars, he is, moreover, on conviction, rendered incapable of holding any office within this State, for the term of ten years thereafter.

The admission appears to have been made with a view to elicit from this Court, a construction of the Constitution and laws of this State, in relation to the right of aliens to vote. This renders it necessary to decide whether Spragins, in suffering Kyle to vote, without challenging him, has subjected himself to the penalty of one hundred dollars, and disfranchisement for ten years.

The 12th section of the act regulating elections, provides, that “When any person shall present himself to give his vote, and either of the judges shall suspect that such person does not possess the requisite qualifications of an elector, or if bis vote shall be challenged by any elector who has previously given his vote at such election, the judges of the election shall tender to such person an oath or affirmation in the following form : 'I, A. B., do solemnly swear (or affirm, as the case may be) that I am a resident of the county of - -, in the State of Illinois ; that I have resided in this State for the period of six months immediately preceding this election ; that I have, to the best of my knowledge and belief, attained to the age of twenty-one years; and that I have not voted at this election.' And if the person so offering his vote, shall take such oath or affirmation, his vote shall be received, unless it shall be proved by evidence satisfactory to a majority of the judges, that said oath or affirmation is false ; and if such person refuses to take such oath or affirmation, his vote shall be rejected.” (1)

These are all the provisions contained in the act, in relation to the qualifications of voters.

Did Spragins, then, in receiving Kyle's vote, violate this section of the law, so as to subject him to the penalty contained in the twenty-third section of the act? I think not, for the reason, that it is agreed, that Kyle was a resident of Jo Daviess county, and had resided in the State for more than six months immediately preced

(1) R. L. 246, 247; Gale's Stat. 263.

Spragins v. Houghton.

case.

of

ing the election. Had Kyle been challenged, he would only have been required to swear to what is adınitted to be fact, by the agreed

À challenge, then, by Spragins, was wholly unnecessary, and would have been an act of supererogation on his part. If Kyle had taken the oath, and it appears he could safely have done so, the judges of election would have been compelled to receive it. They have no discretionary power, for the law is imperative, that the vote shall be received, unless evidence is produced that it is false. This falsity can only be proved to exist, by showing that the person offering to vote has not resided in the State for six months immediately preceding the election, or that he is not twentyone years

age, or that he has voted before at the election. Whether the person offering to vote is an unnaturalized foreigner, is a question which the judges of election have no right to investigate, under the existing laws. If the voter comes within the letter of the law, the duty of the judge is plain. There is no ambiguity in the word resident. Every man is a resident, who has taken up his permanent abode in the State.

The question, then, whether Kyle was an inhabitant, and entitled to the right of suffrage, within the meaning of that word in the Constitution, is not a subject of enquiry by the judges of the election. I am, therefore, of opinion, that Spragins, in admitting Kyle to vote, has not violated the statute, and is consequently not liable to the penalty. On the constitutional question, whether unnaturalized foreigners, who are permanent residents of the State, have a right to vote, I forbear to express an opinion, as I believe, wbile our election laws remain as they are, the judges of elections are bound to receive the votes of such persons.

In support of the views above expressed, in relation to the meaning of the word “resident,” I refer to the case of James Brown v. Richard R. Keane, decided in the Supreme Court of the United States, (1) where that Court held, that the word “resident” does not mean a citizen.

Wilson, Chief Justice :

I concur in the view taken of this case by Justice Lockwood, in his opinion, and think the judgment of the Circuit Court should be reversed, upon the ground that Spragins, the judge of the election, has not incurred the penalty of the statute, in receiving the vote of Kyle, inasmuch as the existence of all the requisite qualifications which the statute requires, in order to entitle him to vote, are admitted. It is only when the judge of the election allows the exercise of the elective franchise by one whose right he suspects, or whose vote is challenged by another, without tendering the oath prescribed by the statute, that the judge violates his duty. The broad and important question of the right of suffrage, under the

(1) 8 Peters 112.

Greenup o. Porter et al. Cowhick o. Gunn et al.

Constitution, does not, according to my view of this case, arise.
It is one, therefore, upon which I express no opinion.

BROWNE, Justice, said he concurred in the views taken of the case by Justice Lockwood.

Judgment reversed.

Note. An alien, otherwise qualified, may vote at elections of borough officers in Pittsburg. Stewart o. Foster, 1 Binney, 120. See, also, Acts of 1840 – 41, 111.

William C. GREENUP, plaintiff in error, v. ROBERT M.

PORTER, WILLIAM JEFFERS, and David PORTER, defendants in error.

Error to Coles.

A writ of error will lie to the Circuit Court, sitting as a court of chancery.

O. B. FICKLEN and David J. BAKER, for the defendants in error, moved the Court to quash the writ of error, and dismiss the cause, upon the ground that a writ of error would not lie to the Circuit Court, sitting as a court of chancery.

U. F. LINDER, for the plaintiff in error.

The Court overruled this motion, considering the question settled by the uniform practice of the Court, from its first organization to the present time.

The principles in relation to the chancery practice in England, have no application to cases of appeals here.

Motion overruled.

3b 417

Thomas CowHICK, appellant, v. HENRY Guns and bla 582

Joseph DeFox, appellees.

3b 417! 78a 394

3b 417 86a 675

Appeal from Morgan.

A transcript of the record of a Circuit Court, which is not certified under the seal

of the Court, is a nullity, and a writ of certiorari cannot be granted in such case; but the cause must be stricken from the docket.

28 417 Case 1 113a 355

William Brown, for the defendants in error, moved the Court to strike this cause from the docket, upon the ground, that the VOL. II.

53

Armstrong o. Caldwell et al.

transcript of the record filed herein, although properly certified by the clerk in other respects, was not under the seal of the Court below.

Whereupon M. McCONNEL and J. A. McDOUGALL, for the plaintiff in error, entered a cross motion, (based upon affidavit filed, showing that the seal was omitted by mistake,) to grant a rule, requiring the clerk of the Court below to certify to this Court a transcript of the record of said cause, under the seal of said Court.

The Court sustained the motion to strike the cause from the docket, and overruled the cross motion for a rule against the clerk below, upon the ground that the record filed, not being under the seal of the Court, was a nullity, and that the cross motion was in the nature of a motion for a writ of certiorari to amend the record, as in case of a diminution of record ; which can only be granted in a case where a record is properly authenticated, but is defective in some of its parts.

It is the seal that gives authenticity to the proceedings of a court of record.

WILLIAM E. ARMSTRONG, appellant, v. John C. Cald

WELL and William Caldwell, appellees.

Appeal from La Salle.

Where a defendant has had a full opportunity to make his defence to an action at

law, and it consisted of matters cognizable in a court of law, the judgment of such a court should be considered final and conclusive, where there has been no fraud in obtaining it; and a court of equity will not disturb it.

The appellant filed his bill in chancery against the defendants, in the La Salle Circuit Court. The bill set forth that at the April term, 1838, of the La Salle Circuit Court, John C. Caldwell recovered a judgment against the complainant, for $ 259,78, for goods, wares, and merchandise sold and delivered, and for moneys. That all the dealings in relation to the cause of action, upon which the judgment was rendered, were had with William Caldwell, John C. Caldwell not having been known in any of the dealings; that the complainant had good reason to believe, and did believe, that William was the principal, and the only person interested in, or who could have any claim upon, the claimant, on account of said dealings; that all accounts, receipts, &c. were in the name of William, John not having been known in any of the transactions. That at the time of the recovery of the judgment, William represented himself to be the agent of John, and to be wholly without pecuniary interest in the matter. That William is

Armstrong o. Caldwell et al.

indebted to the complainant in the sum of $ 200, being for the amount of a promissory note which he was prevented from setting off against the account upon which judgment was recovered, by reason that the suit was brought in the name of John.

The bill also stated that a bill of shoes, which constituted one item in the said account, amounting to $ 146,90, were the partnership property of the complainant and William Caldwell, as he supposed, and that a Court of law could not adjust the partnership accounts between them. That said bill of shoes was allowed on the trial of the action at law, the complainant having been taken by surprise, by the admitting of William Caldwell as a witness, and by his testimony, the complainant having been informed at the trial, for the first time, that John C. Caldwell claimed said amount on account of the partnership property,

That before the commencement of said suit at law, James Johnson and Benjamin Maypole, witnesses, by whom he has since learned that he could have explained and defeated the said claim for said bill of shoes, had left the State, and at the time of the trial he did not know where they were. That in February or March, 1838, he wrote a letter to both of said witnesses, directed to them at Attica, Licking county, Ohio, where he had reason to believe they were, in order to learn what they knew of the transaction, he being ignorant of the extent of their knowledge upon the subject, but he received no answer until after the judgment was recovered. That he has since learned that he can prove by said witnesses, that a gun and fowling bag, charged against him in the account at the price of $ 33, were purchased by him of William Caldwell, at the price of $ 27; and that the pork and bacon which were charged in said account, were purchased of William Caldwell, at nine cents per pound, whereas they were charged in the account at a much higher rate ; — and that said articles were allowed, on the trial, at the prices charged in the account. The bill prayed a disclosure of William Caldwell's interest in the transactions between the parties in relation to the account upon

which the judgment was rendered, and an injunction against John C. Caldwell

, to stay proceedings upon the judgment at law; and that upon the hearing of the cause, the judgment should be vacated.

At the October term, 1838, of the Court below, on motion of the counsel for the defendants, the injunction was dissolved, and the bill dismissed. The complainant appealed to this Court.

The decision of the Court below, in dissolving the injunction and dismissing the bill, is assigned for error.

Giles Spring, for the appellant.
N. H. PURPLE, for the appellees.
Smith, Justice, delivered the opinion of the Court :

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