[9] Ballot No. 71 has a cross in the Republican circle. It shows through on the back. The appellant contends that the mark on the back is made with carbon. From an examination of the ballot we are not convinced that the mark was made with carbon. It may as well have been caused by the pressure of the pencil on the face of the ballot resting on a soiled support.

In

[10] Ballots Nos. 75 and 83 are alike. The Progressive ticket had no candidates for county offices. These ballots were marked with a cross in the Progressive circle. the blanks left for names of candidates for county offices the voter in each case wrote in the names of candidates on the Republican ticket.

[6] It is assigned as error that the court, cumstances we are asked to infer that there erroneously counted for the appellee 39 bal- was a concert of action on the part of the lots to which the appellant objected. As to 4 voters for the purpose of identifying and disof these ballots (Nos. 2, 13, 37, and 135) the tinguishing these ballots. The circumstances argument offers no reason why they should are consistent with honest intention and the not be counted. The objections to ballots Nos. ballots were properly counted. 8, 11, 14, 24, 29, 30, 31, 35, 45, 49, 52, 56, 98, 102, 115, 117, 122, and 129 are of the same general character. Each was marked with a cross in the circle at the head of one of the tickets or with crosses in the squares in front of the names of candidates. In each case the voter placed a cross in front of the name of a candidate for President or Vice President, or both-sometimes on the same ticket which was marked in the circle, sometimes on another ticket, and sometimes in front of the name of a candidate for President on one ticket and for Vice President on another. In one case lines were drawn through the name of the candidate for President on the ticket which was marked in the circle and a cross placed in front of the name of another candidate for President. The objection is made that these marks, made in plain disregard of the statute, should be regarded as distinguishing marks. They all appear to be ignorant efforts to indicate a choice for President or Vice President. These marks can all be reasonably explained consistently with the honest effort of the voter to indicate his choice of candidates; and, though some of them are useless for that purpose, the ballots should not be rejected as to candidates for whom a choice is expressed in accordance with the statute. Winn v. Blackman, 229 Ill. 198, 82 N. E. 215, 120 Am. St. Rep. 237; Rexroth v. Schein, 206 Ill. 80, 69 N. E. 240.

[7] Ballot No. 50 is a straight Republican ballot, having no marks upon it except a cross in the Republican circle and another cross drawn through the middle of the name of Eugene W. Chapin, Prohibition candidate for President. It differs from the case where lines are drawn through the name of a candidate upon a ticket marked in the circle. In such case the evident intention is to indicate

that the voter does not vote for the candidate whose name is erased. Here the mark does not indicate any intention on the part of the voter, and the ballot should have been rejected.

[8] Ballots Nos. 28, 51, 58, 59, 61, 91, 130, and 134 are each marked with a cross in each square on the Republican ticket. All but three were marked with a cross in the circle at the head of the Progressive ticket, and of the three exceptions two were marked with a cross in front of the name of the Progressive candidate for President and one with a cross in front of the Republican candidate for Vice President. Three of these ballots were cast in one precinct, and the Republican ticket had two blank spaces under the name of the candidate for representative, before which were squares, in which crosses were

Instead of making a cross in the square before each name written in, he then went across to the Republican ticket and put a cross in the square before each name printed there. It appears that the voter first wrote in the names, and then, doubting the efficacy of this means of indicating his vote, marked the names printed on the ballots. These ballots were properly counted. Smith V. Reid, 223 Ill. 493, 79 N. E. 148; Arnold v. Keil, 252 Ill. 340, 96 N. E. 869.

[11] Ballot No. 80 was rightly counted for the appellee. It was marked with a cross in the Republican circle and a cross in each continuous square, made by drawing a straight line through the squares from top to bottom and crossing it with a horizontal. mark in each square.

[12] Ballot No. 121 was marked with a heavy cross in the Republican circle, each arm extending over an inch outside the circle. It was properly counted. Kerr v. Flewelling, 235 Ill. 326, 85 N. E. 624.

in the Republican circle. Across the face of four of the tickets were drawn irregular lines, apparently intended to cancel these tickets. Such marks have been held to make the ballot void, and it should not have been counted. Kerr v. Flewelling, supra.

[13] Ballot No. 41 was marked with a cross

[14] Ballot No. 94 should not have been counted for the appellee. The lines of the cross do not intersect within the square in front of his name. Kerr v. Flewelling, supra. Smith v. Reid, supra;

[15] Ballot No. 112 has no cross in the square opposite appellee's name. It has a check mark, whose lines do not cross. It should not have been counted for him.

[16] Ballot No. 22 was properly rejected. It had crosses in the Republican and Progressive circles, a diagonal line in the Prohibition circle, and a cross in the square in front of the appellee's name. The diagonal line was a distinguishing mark, and the bal

the same reason which prevented the counting of ballot No. 81 for the appellant.

[17] Ballot No. 6 was properly counted for the appellant. The lines cross in the square opposite the appellant's name.

[19] Ballot No. 76 was properly counted for the appellant. The slight impression on the back is produced by the pencil used to mark the circle at the head of the Democratic ticket on the face of the ballot.

of the polls in this precinct, about 5 o'clock in the evening, the ballots were emptied from the ballot box on a table and were counted three times, each count showing a deficiency of one ballot according to the number of [18] Ballot No. 57 was marked in the Re- names on the poll book. About 11 o'clock publican circle, the Progressive circle, and in the next forenoon the counting of the votes the square opposite the appellee's name. A had been completed, the ballots strung and curved line was drawn at the head of the bal- sealed up and one of the judges of election lot from the Republican to the Progressive was cleaning up papers and rubbish off the circle. The ballot was counted for appellant, floor, when he picked up from the floor, about but should not have been. The curved line two feet from the table, a ballot having the could not possibly be used, in whole or in initials of one of the judges on the outside, part, for the purpose of indicating the voter's properly folded to go in the ballot box and choice. It was deliberately, and not acci- marked on the inside. On the supposition dentally, placed on the ballot, and must be that this was the supposed missing ballot, regarded as a distinguishing mark. the sack containing the ballots was opened, each candidate indicated on the ticket, including the appellant, was given one more vote, and the tally sheets and returns were changed accordingly. In fact, however, there was. no missing ballot, for the sack, when returned to the county clerk, contained one ballot more than the proper number. Each party moved the court to eliminate one ballot from the precinct, the appellant's motion being directed against ballot No. 99, which has been heretofore mentioned on which no initals of a judge of election were indorsed, the appellee's against the ballot picked up from the floor. The action of the court in sustaining the latter motion was correct. While the ballot unindorsed with the judge's initials was necessarily rejected, yet the evidence indicates that it was in the ballot box, while there is no such inference to be drawn from the evidence in regard to the ballot found on the floor. How it got there is unexplained, and before the court can be said to have committed error in refusing to count it, some evidence should be produced that it had been actually in the ballot box and had been voted. The court did not err in deducting this vote from the appellant's total.

[20] On ballot No. 84 the voter wrote the names of two candidates for county offices in the proper places on the Progressive ticket, then drew a single cross through both names and placed crosses in the squares in front of the names as they appear printed, one on the Republican ticket, the other on the Democratic ticket. The appellant's was the name on the Democratic ticket and the ballot was properly counted for him.

Ballots Nos. 85 and 88 were objected to by the appellee, but no argument is offered for their rejection. On the contrary, the appellee in his brief says he thinks they were properly counted.

[21] Ballot No. 109 has five crosses on its face-two made with an indelible purple pencil and three with a black pencil. These cannot of themselves be held to be distinguishing marks. The ballot was rightly counted for appellant.

[22] In ballot No. 120 the lines are blurred, irregular, and confused, but there is a cross in the Democratic circle, and it was properly counted for the appellant.

[23] The voter of ballot No. 124 drew a small circle within the circle at the head of the Democratic ticket and a cross inside the small circle. The ballot was counted for the appellant. It should have been rejected.

No argument is presented against the counting of ballot No. 78, and no assignment of error as to No. 123, and they are therefore properly counted.

[24] It is assigned for error that the county court deducted one from the appellant's total vote at the close of the count. It was stipulated that one more ballot was returned by the judges of election in Fairfield precinct than the names of voters shown by the pollbook. The evidence shows that at the close

The result is that to the 2,530 votes which the county court gave to the appellant should be added ballot No. 72 and from those votes should be taken ballot No. 124, making no change in his total vote. From the appellee's total should be deducted ballots Nos. 41, 94, and 112, reducing his total vote to 2,530. Under such circumstances, the statute requires the parties to decide by lot which shall be declared elected.

The judgment of the county court will therefore be reversed and the cause remanded to the county court of Wayne county, with directions to require the appellant and the appellee to decide by lot, in such manner as the court may direct, which of them shall be declared elected, and to enter judgment accordingly.

Reversed and remanded, with directions.

4. EVIDENCE (§ 253*)-DECLARATIONS OF CON- | subject to a certain incumbrance. After a SPIRATORS-ADMISSIBILITY. hearing before a master in chancery the court entered a decree sustaining the master's report and finding for appellee, as prayed in her bill. The cause was thereafter appealed to this court.

7. TENANCY IN COMMON (§ 38*)-PURCHASE the master in chancery be restrained from OF OUTSTANDING TITLE PURCHASE AT

[1] From the evidence it appears that the real estate in question was originally purchased by Julius Friedman and Hyman J. Cohen. Afterwards Cohen conveyed his half interest to his wife, and she, through an intermediate party, conveyed said half interest CARTER, J. This was a bill filed in the to her daughter, appellee herein. In making circuit court of Cook county by appellee, the loan of $17,500 through said society Rosa asking for an accounting, and that she be de- Cohen received of said proceeds $10,000 and clared the owner of an undivided one-half Julius Friedman $7,500. On account of the interest in certain real estate in Chicago, unequal distribution of the proceeds Fried

man persuaded Mrs. Cohen to give him a The decree of the court found, in accordtrust deed for $2,500 on her undivided one- ance with the recommendations of the mashalf interest in the property, subject to the ter, that Julius Friedman formed a design of lien of the mortgage to said society. When "freezing out” his cotenant in the real estate the society, through its agent in Chicago, in question and becoming himself the sole Henry B. Mason, began to press for the pay-owner by means of allowing the mortgage to ment of its loan, negotiations were com- be foreclosed and acquiring the title, either menced between Mrs. Cohen and Friedman by buying at the foreclosure sale, or by subwith reference to meeting the obligation. Friedman had been collecting most of the rent from the premises from the time it had been acquired by Mrs. Cohen and himself. It is alleged, and the proof tends to show, that he had a considerable amount of the rents belonging to Mrs. Cohen just before the foreclosure. She testified that in the course of the negotiations he agreed to take $3,500 for his interest in said real estate, on which payment she was to be credited with such amount ($2,000 or more) as Friedman owed her for the rents; that she was obliged to delay a settlement to cash some securities in order to raise the money, to which delay he agreed, but when she called him up on the telephone about two weeks later he said it was too late; that the matter was in his attorney's hands. Other witnesses testified that negotiations were had in which Friedman agreed to take $3,500 for his equity, but afterwards refused, saying that the matter was in the hands of his attorney; and there is other evidence in the record tending to show that Friedman planned to keep Mrs. Cohen from settling, in order that the property might be foreclosed and he thus have an opportunity to buy it in for himself. To one of the witnesses, who said to him that he would lose all his investment if he did not make some settlement with Mrs. Cohen, Friedman replied: "I am not afraid of that; I will protect myself." And later he said: "I want to hold onto all the money that I get hold of in this matter." There was also evidence in the record tending to show that after the sale to the son, David J. Friedman, both he and his father said to various persons that the property belonged to Julius Friedman; that David J. Friedman had little knowledge of the building, and was seeking and taking advice from his father as to handling it and referring inquiries to his father concerning the sale and leasing. Mason, the agent of the society, testified that David J. Friedman paid him the money at the time the certificate was assigned. He stated, also, that he had a message from the father, Julius Friedman, at about that time; the reccord not showing what this message was. David J. Friedman testified that the cash (about $6,000) that was paid in purchasing the certificate was his own money; that about $2,000 of that money he raised by calling in a loan he had made to his father's firm; and that $3,000 of the $6,000 he borrowed of friends. There is testimony of one witness which tends to corroborate a part of his testimony.

sequently buying the certificate of sale; that David J. Friedman, the son, was cognizant of this design and co-operated with his father in carrying it into effect. The decree further found that Julius Friedman was dealing with a woman who was inexperienced in business affairs, and persuaded her, because she had received $2,500 more than he from the proceeds of the $17,500 loan, that it was only fair and right that she should give him a note of $2,500, secured by a trust deed on her half of the property; that this note and trust deed served a double purpose-first, the putting upon record of the trust deed seriously crippled appellee's borrowing power when she tried to negotiate a new loan, and, second, it furnished Julius Friedman an excuse for retaining her share of the rents until such debt was paid and omitting to pay the interest on the mortgage loan; that the subsequent purchase of the certificate of sale by David J. Friedman was done in pursuance of this design and in co-operation with his father; that said David J. Friedman bought the said certificate before the redemption period expired and for the purpose of holding it in trust, and to assist Julius Friedman in carrying out the scheme of securing from appellee her interest in said property and in the equity of redemption. The decree found that appellee was the owner, in fee simple, of an undivided one half interest in said real estate, and that the title to the other half interest was in David J. Friedman, who also held title to appellee's half in trust for her; that said David J. Friedman, and all other persons who might be found to have any interest in said property, should convey to appellee her undivided one-half interest, free and clear of all claims and incumbrances, subject, however, to its one-half of the Philadelphia Savings Fund Society mortgage, upon the payment by appellee to David J. Friedman of one-half of the amount of money paid by him to said society in purchasing said certificate; that a full and complete accounting relating to said property between appellee and the estate of Julius Friedman and between appellee and David J. Friedman be had and payment be made of such sum as may be found upon taking such account.

[2] The weight of the evidence, in our judgment, tends to support the finding of the decree that the certificate of sale was purchased by David J. Friedman in pursuance of an agreement between him and his father, whereby the latter planned to secure the interest of his cotenant in the property. The rentals of the building in question amounted