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Opinion of the Court.

it an unlimited time;" and is a conclusion of law on an extended view of facts and circumstances. Grier v. O'Daniel, 1 Binn. 352.

A resident is a person coming into a place with an intention to establish his domicile or permanent residence, and actually executing that intention by taking a home or lodging, opening a store, or the like. United States v. The Penelope, 2 Peters Adm. Dec. 450.

Residence is a question of intention. By a removal out of the State, without an intention permanently to reside elsewhere, a person will not lose his residence, nor will he acquire it by a mere intention to remove perinanently, not followed by actual removal. Cascy's case, 1 Ash. 126.

The existing domicile always continues until another is acquired, so that by the acquisition of another the former is relinquished.

To effect a change of domicile there must be intention and act united. 2 Kent Com. 43; 15 La. An. 281; Crawford v. Wilson, 4 Barb. 504.

To effect a change of residence, it is not enough that one intends to change it, and believes he has done in law what amounts to a change.

The intent and fact must concur, and his opinion cannot produce the result. Chaine v. Wilson, 8 Abbott's Pr. 78.

Mr. J. A. MCKENZIE, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This was an information in the nature of a quo warranto exhibited against appellant, charging that he had usùrped the office of judge of the tenth judicial circuit. The only question presented, and which we are called upon to determine, is, whether, under the eleventh section of article five of our Constitution, he was eligible to the place. That section requires, as a qualification for that office, that the person shall have been a

Opinion of the Court.

resident of the State for at least five years next preceding his election or appointment.

It appears from the evidence, that appellant went to Tennessee with his family in the month of August, 1865, and returned to Illinois in March, 1866, where he had resided for many years previously. Before he left this State, and for a short period after his arrival in Tennessee, he frequently declared, that it was only an experiment. That if he found that the feelings of the people there were such that he could remain with satisfaction he would not return, but if he found that he could not, then he would return to Illinois. But he was there but a short time until he became satisfied that he could not remain with satisfaction to himself, and informed his partner that he would return to Illinois as soon as the river became navigable, and this seems to have been his fixed determination until it was carried out by his return. So far as the evidence discloses, he at no time expressed an unqualified intention to remain in Tennessee. It was at all times expressed conditionally. And when he was requested by his partner in Tennessee, to vote at an election, he declined, upon the ground that he desired to do no act by which he would lose his citizenship in this State.

Before leaving he refused to sell his Illinois Reports, saying, that he would probably return, and would then need them in his practice. He only rented his residence when he left. And against this is the fact, that he was in Tennessee in the practice, some six months, having his family with him, perhaps as much as two months immediately after his arrival there undetermined whether he would remain, and the remainder of the time fully determined to return to this State. This is, we think, the extent of the proof.

This is a proceeding in the nature of a criminal information, and before it can be maintained, the proof must be clear and satisfactory that the party is disqualified. In this case we find appellant has been appointed judge of the tenth judicial circuit, by the executive branch of the government, and holding a commission regular and apparently legal. This must necessarily raise a presumption of right to the office, and that

pre

Dissenting opinion of BREESE, J.

sumption must be overcome by satisfactory evidence before the incumbent can be ousted. In this case, we think the evidence, at most, leaves the qnestion, whether he had lost his residence in this State, one of doubt. It does not appear that he ever intended to abandon his residence here; but, on the contrary, during all but a short period of tiine he expressed a determination to return, and for that short period he only seemed to have been in a state of doubt. We think, that, when the residence is lost, it is by a union of intention and acts; but the intention in many cases will be inferred from the surrounding circumstances. In this case, however, we do not think all of the circumstances appearing in evidence establish a presumption of loss of residence sufficient to overcome the presumption arising from the fact, that the governor gave him the commission under which he is now acting.

The judgment of the court below, which was entered pro forma, is reversed and the cause remanded.

Judgment reversed.

BREESE, J. (dissenting). The proof is positive that appellant resided with his family in Clarksville, Tennessee, from August, 1865, to March, 1866, when he returned to this State. At Clarksville he opened an office, and remained there so long as his professional prospects encouraged him. With all my desire to do so, I cannot say he was not a resident of Tennessee durring all that time. That State was his then fixed residence. Being a resident of Tennessee, it is impossible he could be a resident of this State at the same time. I therefore cannot concur in the opinion of the majority of the court.

Syllabus.

Statement of the case.

Brief for the Appellant.

CHICAGO, BURLINGTON & Quincy RAILROAD COMPANY

v.
EDWARD W. BANKER.

EVIDENCE — plat or map. In an action on the case against a railway company for killing a colt, the defendant, for the purpose of showing that the place where the accident occurred was inside of the limits of the village of Hinsdale, offered to give in evidence to the jury a map or plat thereof, recorded subsequent to the date of the accident. The court excluded the map on the ground that it had not been recorded at the time of the accident. Held, that the map was proper to show the intent of the owners of the land to dedicate, and the extent of the dedication, and therefore ought not to have been excluded from the jury.

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. Gary, Judge, presiding.

This was an action on the case commenced to the August Term, A. D. 1866, of the Superior Court of Chicago, by the appellee against the appellant to recover the value of a colt killed upon the road of the appellant at a place called Hinsdale, in Dupage county.

The case was tried at the November Term, and a verdict and judgment obtained against the appellant for the sum of $400.

The action was brought under the act of February 14, 1855, requiring railroad companies to fence their road in certain localities.

The declaration contained two counts, and sets forth, in substance, that the killing was caused by the careless and negligent conduct of defendant in not fencing the road as required by law, and the careless, negligent and improper manner it ran its locomotive and train.

To which the defendant filed its plea “not guilty.”
Messrs. WALKER & DEXTER, for the appellant.

It appears from the evidence that the colt was killed on the depot grounds of appellant, at a place called Hinsdale, in Du Page county.

Brief for the Appellant.

The depot grounds of the appellant at that place are about fifteen hundred feet in length from east to west, and about three hundred feet in width from north to south. The colt was killed near the west end of those grounds, but was found west of the west end of the grounds, having been carried over the cattle guard by the locomotive. At the time this accident occurred the village of Hiusdale was quite small, consisting of some half dozen dwelling-houses, the depot building, situate on the depot grounds, about midway between the eastern and western limits of same. Other honses, a store and other buildings, however, were being erected, and those already completed were all occupied. The town at that time had been regularly platted and laid out into lots, streets and alleys, and according to the plat, extended some distance beyond the limits of the depot grounds on all sides, the depot grounds being fully within the town as platted. This plat was made and acknowledged September 22, 1865, and the lands appropriated and dedicated to the uses and purposes of the village; but was not recorded until August 14, 1866, after the accident occurred. This plat was offered in evidence on the trial, but was ruled out for the reason that it was not recorded until after the accident occurred, and exception taken.

Before the appellee was entitled to recover in this action it was, among other things, incumbent on him to prove that the colt got upon the road of the appellant at some point not excepted by the statute; that is, at some point on the road required by the statute to be fenced; and from the want of a proper fence or cattle-guard, or by reason of the fence or cattleguard being out of repair, unless it appears that the damage was negligently or willfully done.

The term “village” in the statute, is evidently to be taken in its ordinary and common acceptation as distinguished from a city or town, as all these terms are made use of in the statute, for the purpose of determining where the company were not bound to fence, and when it says that no fence shall be required in villages, it means villages in the ordinary sense as distinguished from a city or town; any small collection of houses.

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