the court would have been in duty bound to sustain the same. The appellants obtained a small judgment in the court below. They bring this case here on appeal, insisting that their judgment should have been for a larger amount. But, under the averments of their complaint, appellants were not entitled to any relief in this action, and therefore any intervening error is harmless, and must be disregarded, in the consideration of, and as applied to, the facts disclosed by the record in this case. Manufacturing Co. v. Booth, supra; Ice v. Ball, 102 Ind. 42, 1 N. E. 66; Palmer v. Road Co., 108 Ind. 137, 8 N. E. 905. Had the appellees appealed from the judgment rendered against them, and raised the question as to the sufficiency of the complaint, the judgment could not be sustained, for, as is well said by an eminent author, "where a complaint or declaration wholly fails to state a cause of action, the judgment should not be allowed to stand, for it is difficult, if not impossible, to conceive how a judgment can stand where there is no actionable wrong, and, surely there can be none where there is no cause of action. An unsupported judgment is a foundationless structure." Elliott, App. Proc. § 471. If, then, the appellants could not, on appeal by the appellees, have sustained the small judgment which they recovered against the latter, neither could they, upon the same complaint, have supported a larger one. Hence, in no event could the rulings complained of be harmful to the appellants. Judgment affirmed. (158 Ill. 75) ANDERSON v. SCHUBERT, Clerk of Criminal Court.1 (Supreme Court of Illinois. Oct. 14, 1895.) COSTS IN QUASI CRIMINAL CASES-APPEALS FROM JUSTICES-MUNICIPAL CORPORATIONS. One who has been convicted before a justice of the peace of violating a city ordinance, and has appealed therefrom to the criminal court of Cook county, where the case is triable de novo, cannot be compelled to pay a docket fee in the criminal court, as a condition precedent to having his case docketed in that court, since 1 Starr & C. St. c. 53, § 40, which provides that costs in prosecutions under city ordinances may be paid by the city, in the discretion of the council, does not give a defendant who is acquitted any absolute right to recover his costs, and Id. § 33, which provides that in cases of appeals from justices the appellant. shall pay a docket fee, has no application to criminal and quasi criminal cases. McArthur v. Artz, 21 N. E. 802, 129 Ill. 352, followed. Appeal from appellate court, Third district. Motion by Julia Anderson for an order directing John C. Schubert, clerk of the criminal court of Cook county, to docket a certain case. The motion was overruled, and this 1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar. ruling was affirmed by the appellate court. 55 Ill. App. 227. The defendant appeals. Reversed. Joseph B. David, for appellant. BAKER, J. On March 29, 1894, appellant was tried before a justice of the peace in the city of Chicago for the violation of a municipal ordinance, found guilty, and fined $100, for which sum, and the costs in the case, judgment was entered against her. On April 2d she and her counsel, with the proper papers, sought to perfect an appeal from said judgment to the criminal court of Cook county. The clerk of that court approved the bond, but refused to docket the case because appellant would not pay, in advance, the fee of $10 demanded by him. On April 7th appellant moved the court 'for a rule on the clerk that he docket the said cause without the payment by her in advance, to him, of any costs or docket fee. The motion was denied, and exception taken. From the order entered denying the motion, an appeal was taken to the appellate court. That court affirmed the ruling below, and allowed an appeal to this court, certifying to the importance of the question involved. That question is whether or not appellant is entitled to have her appeal docketed in the criminal court without first paying to appellee, the clerk of that court, the fee demanded by him., In McArthur v. Artz, 129 Ill. 352, 21 N. E. 802, it was held that where a person is charged before a justice of the peace with the commission of a criminal offense, and is fined by the justice, he need not, in case he appeals from the judgment of the justice, pay any costs in advance, in order to have the cause docketed in the court to which such appeal is taken. The ground upon which this decision was based was that inasmuch as a defendant who is to be tried upon a criminal charge cannot, in the event he is acquitted, be required to pay costs, he is therefore not required to advance them, since he could not, in such event, recover them back, where the proceeding is in behalf of the people. Does the case at bar come within the reason of this decision, so as to be governed by it? This is a quasi criminal prosecution, for the violation of a city ordinance. No statute, in express terms, makes the city liable for costs therein, in the event the suit results in the acquittal of the defendant. In section 40, c. 53, entitled "Fees and Salaries" (1 Starr & C. St. p. 1139), it is provided: "* ** That the costs in criminal and quasi criminal prosecutions for the violation of an ordinance of an incorporated city or town, where the provisions of the charters of such towns or cities do not prohibit the payment of such costs, may be paid by such city or town, in the discretion of the city council or board of trustees of such incorporated cities or towns." Under this statute it is left to the discretion of the municipal authorities to pay the costs * or not. It has been held in Town of Nokomis v. Harkey, 31 Ill. App. 107, and in numerous subsequent appellate court decisions, that a municipal corporation is not liable for costs made in prosecuting supposed violators of its ordinances, and that a judgment for costs cannot be entered against it when the defendant in any such prosecution is acquitted. And in Holmes v. City of Mattoon, 111 Ill. 27, it was said that municipalities, such as counties, cities, towns, etc., "are the instruments of the state to carry out its powers for the public welfare, and in exercising their powers and enforcing public rights they act as agents, and may have extended to them the same exemptions in suits as belong to the state. Municipal bodies act for the state, and, to the extent authorized, exercise the powers of government; and when so exercising such powers they may, when so authorized, do so without conforming to all of the requirements imposed by the practice on natural or artificial persons created for the purpose of business or gain." The decision in the case last cited, and the decisions of the appellate court, are based upon the same principle, and we approve of the decisions made by the latter court. The city of Chicago, therefore, would not be liable for payment of the costs made in this case, if appellant should be acquitted on the trial of her appeal. Hence, if appellant should advance the costs demanded by appellee, she could not, in the event of her acquittal, recover them back from the city. We think this case comes within the rule laid down in McArthur v. Artz, supra, and that appellant is not required to pay to appellee any costs before it becomes his duty to docket her appeal. Otherwise, if she should be acquitted, she would be out of pocket the amount so advanced, and it would be neither just nor reasonable that she should be compelled to pay the costs of court in a prosecution upon a charge of which she was found not guilty. Appellee relies upon section 33, c. 53, p. 1135, 1 Starr & C. St., as amended in 1893 (Laws Ill. 1893, p. 104), as warranting his action and sustaining his contention. Said section, which applies only to counties having a population exceeding 70,000 inhabitants, provides, among other things, that in all cases of appeal from a justice of the peace, where the appellant shall file in the office of the justice of the peace in such counties his bond required by section 62 of the chapter entitled "Justices and Constables," he shall also, at the same time, pay to the justice. for the use of the clerk of the court to which the appeal is taken, the sum of $10, to be taxed as costs in the suit, and that upon failure to do so it shall be the duty of the justice not to allow the appeal. The amendment referred to consisted in changing the amount of the docket fee from $6 to $10. In the light of what we have said, it is plain this section has no more application to the case we are now considering than it had to ORR v. HANOVER FIRE INS. CO.1 (Supreme Court of Illinois. Oct. 14, 1895.) FIRE INSURANCE-CONDITIONS OF POLICY-ASSIGNMENT FOR BENEFIT OF CREDITORS. Under a clause providing that the policy shall be void "if the property, or any interest therein, be sold or transferred," a general assignment by the insured for the benefit of creditors avoids the policy. Appeal from appellate court, Third district. Assumpsit by Abner R. Orr, assignee of W. B. Cauble, insolvent, against the Hanover Fire Insurance Company. Plaintiff obtained judgment, which was reversed by the appellate court. 56 Ill. App. 621. Plaintiff appeals. Affirmed. CRAIG, C. J. This was an action brought by Abner R. Orr, assignee of W. B. Cauble, against the Hanover Fire Insurance Company, to recover the loss sustained by the burning of a certain two-story brick business building in the town of Sidell, in Vermilion county, which was insured against loss by fire in said company. The policy was issued February 14, 1893, to W. B. Cauble, to run one year; amount, $2,000. In the circuit court the parties waived a jury, and on a trial before the court a judgment was entered in favor of the plaintiff, which, on appeal to the appellate court, was reversed, and a remanding order denied. The policy upon which the action was brought contained the following provision: "If the interest of the insured be other than the entire, unconditional, and sole ownership of the property for the sole use and benefit of the insured; or if the property be incumbered by any lien, deed of trust, judgment. mortgage, or otherwise; * or if the property, or any interest therein, be sold or transferred, or any change takes place (other than by the death of the insured) in the interest, title, or possession, whether by legai process, or by judicial decree, or voluntary transfer by the assured, * * * then in ev ery such case the policy shall be void." The policy further provided as follows: "If the property become subject to any lien or incumbrance by virtue of any mortgage, deed of trust, judgment, or decree, then in every such case this policy shall be void, unless otherwise provided by agreement." On the 1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar. 4th day of August, 1893, five days before the fire, W. B. Cauble made a voluntary assignment of all his property for the benefit of creditors to Abner R. Orr, the person who instituted this suit. The assignee, Orr, on the day the assignment was executed, took possession of the property, and remained in the possession thereof until the property was destroyed by fire. Prior to the fire it appears that five judgments, aggregating $1,497.18, had been entered against the insured, Cauble, in the county and circuit courts of Vermilion county by confession. The policy, which is the contract between the parties, contains no ambiguity, and its language is plain and easily understood. If the insured had sold and conveyed the property by absolute deed before the fire without the knowledge or consent of the insurance company, it is plain, under the terms and conditions of the policy, no recovery could be had, for the reason the policy expressly provides, if the property insured be sold or transferred, or any change takes place in the interest, title, or possession, the policy shall be void. Here the insured did not make a sale of the property, as that term is ordinarily understood, but he made an assignment under the statute for the benefit of creditors, and by deed of assignment duly executed he transferred the property embraced in the policy to an assignee, and the question presented is whether that was such a transfer or change in the title as would render the policy void. When an assignment is properly executed, acknowledged, and recorded, it is well settled that the title to the property, both real and personal, of the assignor, passes to the assignee. In other words, as was said in Frey. dendall v. Baldwin, 103 Ill. 328: "It is a proposition that needs nothing in its support, if the voluntary assignment made by the failing debtors was valid, all the property, real and personal, which they owned at the time, passed to their assignee, under the provisions of the statute. If, therefore, the title to the property, under and by virtue of the deed of assignment, passed from the insured to the assignee, it is plain there was a change in the title of the property, caused by the voluntary act of the insured, and by the plain terms of the policy it became void." May, Ins. § 264, says it is a general principle that the insured cannot recover unless he has an interest in the property at the time of the loss, and that an absolute alienation works a forfeiture, whether so stipulated in the policy or not, if the property remains out of the insured at the time of the loss; that a transfer to the assignee, by decree of court, of a bankrupt's estate, under the bankrupt laws of the United States, upon a bankrupt's peti tion, is an alienation. In such case the prop erty is vested in the assignee, and, though the proceedings may be stayed, and the property may revest in the bankrupt, this is a contingency too remote to be considered the foundation of an insurable interest in the bankrupt, and he adds: "And, of course, a voluntary assignment for the benefit of creditors is equally a transfer, unless possession be retained by the assignor." In the case of Dadmun Manuf'g Co. v. Worcester Fire Ins. Co., 11 Metc. (Mass.) 429, the assured made a general assignment, under the statute, for the benefit of creditors. Suit was brought by the assignee upon a policy of insurance which had been issued to the assignor, and which provided that: "The alienation, in any way, of any property insured under this policy, shall ipso facto make the policy void, unless notice of the alienation shall be given to the company, and indorsed on the policy." In the decision of the case it is said: "The facts in this case are that the insured, being embarrassed, assigned their property, including the premises insured, to Dadmun, Church & Lord, to sell the same, and pay the debts se cured by the assignment, and the deed of assignment contained only a qualified release of the assignors. This deed, it is now said by the plaintiffs, was fraudulent and void against creditors, by force of the statutes of 1836 and 1838. However that may be, It does not now lie with the assignors to aver their fraud in making that deed in order to void the title made by them under it, and thus be allowed to fall back upon their former title. No notice of the conveyance was given to the defendants, nor did any assignment of the policy take place. This was a violation of the tenth rule of the defendants, of which they may avail themselves. It is said that this conveyance was in trust, to pay debts, which the property was more than sufficient to cover, but this fact does not alter the character of the con veyance, nor make it less an alienation." See, also, Young v. Insurance Co., 14 Gray, 150; Perry v. Insurance Co., 61 N. Y. 214. But it is said in the argument that the conveyance in this case was in the nature of a mortgage or trust for the benefit of creditors, and "that there was no change in the fact of title, but only in the evidence of it." We do not concur in that view. Upon the execu tion and delivery of the deed of assignment all the title and interest originally held by the assignor passed from him to the assignee. His legal interest was gone; the right of possession was gone, and the assignee was clothed with the right and power to sell and convey the operty and distribute the proceeds among the creditors. After the assign. ment, the assignor has no more control over the property than he would have in case of an absolute sale. In conclusion, we are satisfied the appellate court reached a correct conclusion, and its judgment will be affirmed. Affirmed. * * (158 Ill. 111) STEVENS v. PEOPLE.1 (Supreme Court of Illinois. Oct. 11, 1895.) RAPE-EVIDENCE-HEARSAY. On trial for assault with intent to commit rape it is error to allow witnesses to whom the prosecuting witness made complaint to testify that she told them in defendant's absence that he was the person who assaulted her. Error to circuit court, Rock Island county; Arthur A. Smith, Judge. Indictment of William E. Stevens for assault with intent to commit rape. Defendant was convicted, and he brings error. Reversed. This is an indictment against plaintiff in error for assault with intent to commit rape upon one Philomena Berkins. The jury, upon the trial of the case, returned a verdict of guilty, and fixed the punishment at one year in the penitentiary. Motions for new trial and in arrest of judgment were overruled, and judgment was rendered upon the verdict. This writ of error is sued out for the purpose of reviewing such judgment. A motion was made before this court by plaintiff in error at the October term, 1894, that the writ of error be made a supersedeas. This motion was granted at that time, and plaintiff in error was then admitted to bail pending the consideration of the case here. The offense is alleged to have been committed in Moline on Tuesday, the 22d day of August, 1893. The plaintiff in error is a man of family, 54 years of age, and for 14 years prior to his conviction was engaged in the real-estate and insurance business at Moline. The prosecutrix is a married woman, the wife of one Martin Berkins. She is more than 35 years old, and came to this country from Belgium on April 27, 1893. She had lived at Ghent, in Belgium, and was there divorced from her first husband. She married her present husband, Martin Berkins, in Rock Island, on June 6, 1893. She says that she had known Berkins 10 years, and came to America to marry him. Berkins was also a Belgian, born in 1861, and had lived in this country about two years at the time of the trial. The prosecutrix admits that she kept a saloon in Ghent alongside of a house of ill fame; that she was 25 years old when she first kept a saloon, and, the last time she kept it, kept it 14 months, and 5 years before that kept a saloon in connection with a lodging house; and that she had no other business in Ghent besides keeping a saloon and lodging house. A witness named John Deeling, at whose house the prosecutrix stopped when she first came to Moline, and for whom she acted as cook for a short time, swears that he knew her in Belgium, and that her general reputation there, in the neighborhood where she lived, for truth and veracity and for virtue and chastity, was bad; 1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar. that she was talked of in the saloons in Ghent as a bad woman, and as the keeper of a house of ill fame; and that since coming to this country she had told him that she ran a house of ill fame in Ghent, and had kept a saloon in connection therewith, making her living thereby. Two other witnesses swear that the prosecutrix had stated to them that she had kept a house of ill fame in Ghent, Belgium, before she came to this country. Two witnesses produced by the prosecution swore that they had known her as a saloon keeper in Belgium, and had been in her saloon there, and that she did not keep a house of ill fame there, and that her reputation for chastity was good. One witness for the prosecution, who had known her here for something more than a year, but had no other acquaintance with her than to pass the salutations of the day, swears that her general reputation for truth and veracity was good. The proof shows that the prosecutrix and plaintiff in error had met only three or four times before the alleged assault was committed. As to the first time she saw him, she says that she was at the house of a neighbor, named Braum, sitting on the porch, peeling apples, and Stevens was "alongside of her," on his knees; that he took hold of her breasts, and sat down, and put his hand under her clothes upon her leg, and she gave him a slap, and he "got up" and went away, and made a motion to her with his hands, indicating that he would pay her money, but that she continued to sit there, and said nothing to her husband about it, because she was afraid; and that all this occurred about five minutes after she saw him for the first time. The date of this first meeting was Thursday, August 17, 1893. As to what then occurred plaintiff in error says that he came into Braum's yard, and saw her sitting on the steps; that she addressed him by name, and appeared to know him, and spoke to him as if she was intimately acquainted with him; that her appearance indicated that she was not a pure woman; that he sat down on the porch because there was no other place to sit, and was close enough to push her without getting up; that he only remained there a minute or two; that Mrs. Braum's little girl was sitting on the porch, and Mrs. Braum was passing to and fro; that he merely brushed her on the thigh with his hand, outside her clothes, and the only thing she did was to shake her head, having a knife in one hand and the apple dish in her lap. Plaintiff in error was again at the house of Braum, who had been doing some work for him, on Sunday, August 20th. Prosecutrix and her husband were there at the time, drinking coffee. He remained but a few moments, and nothing passed between them. She says that on the next day, Monday, August 21st, about half past 12 o'clock, Stevens came to her house, to get her husband to do some work upon a well near Braum's house; that her husband was eating his dinner; that Stevens made lewd motions to her behind her husband's back, and showed her money; that she was busy undressing herself, and Stevens went after her in another room, and asked her if she wanted money; that he then went away, and her husband went to work; that about 2❘ o'clock in the afternoon Stevens came back to the back door; that she was in the kitchen, and saw him coming, and thought she heard him knock, and jumped through the window, and ran to one of the neighbors, and saw him no more that day. Two witnesses swear that in giving an account of this day's transactions the prosecuting witness spoke of having gone into a room and got a revolver, but she says that she said nothing about a revolver. The plaintiff in error says that he has no recollection of being at the house of the prosecuting witness but once on Monday; that he went there to get Berkins to help a man who was digging a well, as Berkins had told him the day before, at Braum's house, that he wanted work; that he knocked, and was invited in, and found Berkins and his wife in the kitchen; that she motioned to her husband to go into the sitting room, which he did; that he sat down to the table to eat his dinner, saying that he would go to the well as soon as he finished his meal; that when he finished he went into another room, and closed the door after him; that the prosecutrix motioned with her hand to the door of the room where her husband had gone, and said to plaintiff in error in broken English, "You come to-morrow." The next meeting took place on Tuesday morning, August 22d, at her house, at which time the assault is alleged to have been made. She swears that on that day Stevens came to her house about 8 o'clock in the morning, while her husband was working for him near Braum's; that he did not knock; that there was a mosquito door in front, which was open; that the bedroom window was open (there was a dwelling on one side of the house, 52 feet distant, and another on the other side, 90 feet distant); that Stevens asked if her husband was at work, and she said, "Yes"; that he then came in, and closed the door; that she was sitting in a rocking chair, knitting stockings, and there was a low kitchen chair in front of her, on which her foot rested; that he began to talk to her, and sat down upon the chair in front of her; that she said nothing, but was busy fixing her stockings; that he put his hand under her clothes, and she slapped him on the fingers; that he then began taking liberties with her again; that she said it was warm, and rose up to open the door; that he then put one hand under her chin and one under her clothes, and held her; that the rocking chair tipped over, and broke the hinge on the buttery door; that he threw her over the chair; that she scratched him, and as soon as she scratched him he let her loose; that after she was loose she took the poker and struck him, and he commenced to cry, and said, "Forgive me"; that his hat fell in the water, and he took it and ran away; that she ran over to one of the neighbors, and showed her with a stick how she had struck him; that she went to her husband, and told him what Stevens had done. Upon her original account of the transaction she made no statement that the plaintiff in error exposed his person to her, but at a subsequent telling she swore that such was the fact. She made no outcry. The plaintiff in error testifies, in regard to the occurrences of Tuesday, that he went to the house of the prosecutrix on that morning about 9 o'clock, and knocked; that she said to him "Come in"; that she was mending stockings, and motioned to him to take the chair in front of her, saying, "Take a chair"; that her chair was by the window, and the back of his was against the wall; that he did put his hand under her clothes, upon her thigh; that she sat there, and he took his hand away, and sat back in his chair; that she then raised both her hands, and scratched and tore his face, and swore at him, and said she would make him pay, and motioned to him to leave; that he left as soon as he could; that she did not strike him with a poker, or any other weapon; that he did not expose his person to her in any way, nor put his hand on her throat; that when he went out of the house she went out and picked up a piece of kindling wood, and made a motion as if to throw it at him; that he got into his buggy, and went to the place where her husband was working; that after a little while she came there, and she and her husband went to Braum's house, where he followed them, and left them. That day the prosecutrix went before a justice, and swore out a warrant for the arrest of plaintiff in error. It seems that in the evening of that day plaintiff in error and one Verdict, a Belgian, I went to Berkins and his wife, to see if the matter could be settled, neither party seeming to be aware that they were doing anything wrong by making a settlement. Berkins wanted $50. Mrs. Berkins said they would take $25. Finally Berkins agreed "to let it go for $20." Stevens then "put $20 on the trunk. Mrs. Berkins took the money." The plaintiff in error assigns as errors: (1) That the evidence does not establish his guilt; (2) that the court permitted the prosecution to prove not only that the prosecutrix made complaint to others shortly after the alleged assault, but that she made complaint to others that she had been assaulted by plaintiff in error; (3) that the state's attorney, in his argument to the jury, made improper remarks; (4) that both the jury and the bailiff in charge of the jury were guilty of improper conduct; (5) that the court refused to give defendant's instruction No. 11; (6) that the court refused to permit the prosecutrix to be cross-examined as to certain convictions for crime alleged to have been obtained against her, and certain punishments for crime alleged to have been inflicted upon her, in Belgium, before coming to this country; (7) that the court refused to permit the prosecutrix to answer a question put to her by the defense upon her cross-examination, as |