author: Mr. Presiding Justice Philbrick

text:
    Thomas E. Wing, Appellant, v. G. J. Little, Appellee.
    1. Service or process—when confers jurisdiction. Service upon the person of the defendant in a county other than where defendant resides, confers jurisdiction of the person and the only way that the question of jurisdiction can be availed of is by the defendant served appearing and challenging the jurisdiction of the court.
    2. Judgments—presumption as to jurisdiction to enter. Every presumption is indulged in favor of the jurisdiction of a court of general jurisdiction and a collateral attack cannot be made upon the judgment of such a court predicated upon the claim that the service was had upon the defendant in a county other than that of his residence.
    3. Gambling—power of legislature to enact laws against. The legislature has authority to pass laws prohibiting gambling and to permit the recovery of money lost at gaming, and for the purpose of preventing gambling, to pass an act subjecting the property in which gambling is permitted to take place to the payment of any loss by reason thereof.
    Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed October 14, 1911.
    Masters & Masters, for appellant.
    Smith & Friedmeyer, for appellee; E. S. Smith, of counsel.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Thomas E. Wing, as complainant, filed his bill in the Circuit Court of Sangamon county against G. J. Little, defendant. To the original bill a special demurrer was sustained. Complainant took leave to .amend his bill and to the amended bill defendant filed a general demurrer. This demurrer was sustained, complainant elected to stand by his bill, a decree was rendered on the demurrer, dismissing the bill for want of equity, and against plaintiff for costs, from which decree he prosecutes this appeal.

The bill of complaint as amended alleges that prior to the filing of the bill plaintiff recovered a judgment against one Adams in the Circuit Court of Sangamon county in the sum of $3,000; that the judgment was obtained for losses in games of chance played by plaintiff in a common gaming house kept, occupied and maintained by Adams in the county of Sangamon. The bill further alleges that the declaration filed in the case wherein the judgment was recovered, set forth the playing of the games of chance, the losses therein, and that the gambling house was occupied and maintained by Adams in the city of Springfield, Sangamon county; that summons was issued to the sheriff of Sangamon county and returned by the sheriff showing that defendant Adams was not found in that county; that a summons was then issued to the sheriff of Adams county; that this summons was returned by the sheriff of Adams county showing service upon defendant Adams. Adams made no appearance in that action but defaulted and a judgment was rendered against him in the sum of $3000. Execution was issued on that judgment and returned nulla bona. The bill further alleges that the gaming house so conducted and operated by Adams was conducted in the building described in the bill of complaint filed herein, that said building was at the time when said games of chance were alleged to have been played and at the time of the filing of the bill owned by defendant herein, that defendant knew Adams was conducting a gaming house in said building and knowingly permitted him so to do, that by reason thereof the building became liable for the satisfaction of the judgment so recovered against Adams and this bill is filed for the purpose of subjecting that building to the payment of this judgment. The demurrer to the amended bill was a general demurrer and a judgment was rendered thereon dismissing the bill for want of equity. A general demurrer not being sufficient to reach any defect in form of pleading and the judgment being a bar, it is evident the demurrer was sustained to the substance of the bill and not as to any matter of form therein, and the argument of both counsel proceeds upon that theory in this court. The grounds insisted by appellee in-justification of the decree sustaining the demurrer are, first, that the bill does not show a valid judgment against Adams, and that the Circuit Court of Sangamon county did not obtain jurisdiction of defendant Adams by the service of the summons in Adams county by the sheriff of that county. It must be conceded that the Circuit Court of Sangamon county being a court of general jurisdiction, did have jurisdiction of the subject-matter, and while under the Practice Act it is required that no defendant shall be sued in an action at law in any county except in the county where he resides or where he may be found, except under certain conditions which do not arise in this action, it is insisted by defendant herein that not having been found in Sangamon county but served with process in Adams county, the service upon him in Adams county was absolutely void. The provision of the statute which requires defendant shall be sued in the county where he resides or may be found has been held to be a privilege personal to him so frequently that citation of authorities therein is unnecessary, and that in order to take advantage thereof he must appear and set up the facts by proper plea and claim the privilege. It is sufficient, however, upon this contention to say there is no averment in this record that Adams did not reside in Sangamon county, but conceding he was a resident of Adams county, by the service of the summons by the sheriff of that county the Circuit Court of Sangamon county obtained jurisdiction of the person of defendant and the only way that jurisdiction could be defeated was by claiming the privilege of the statute permitting Mm to be sued in the county where he resided or was found. Drake v. Drake, 83 Ill. 526; Comrs. Drain. Dist. v. Griffin, 134 Ill. 338; Off v. G. A. & T. Co., 87 Ill. App. 472 (3d Dist.).

In Linton v. Anglin, 12 Ill. 284, it was held that where the cause of action arose in a county where plaintiff resides action may be brought there and summons sent to any county in the state. It is also the law that where the cause of action is local and the declaration alleges that the cause of action is based on a gambling transaction committed in the county where the suit is brought, the venue is properly laid. Gambling being an offense against the laws of the State of Illinois, the venue of the action therein is in the county where the gambling took place and for this reason also the Sangamon Circuit Court had jurisdiction in this action.

The Circuit Court being a court of general jurisdiction and having heard and determined this matter, every presumption must prevail in favor of its jurisdiction and it will be presumed that the court determined that question for itself and by its judgment found that it had jurisdiction of the person of the defendant. The defendant herein cannot be permitted in this action to deny the jurisdiction of that court to render its judgment. Kenney v. Greer, 13 Ill. 432; Wallace v. Cox, 71 Ill. 548.

The defendant being estopped to deny the validity of that judgment, the only defenses that can be made to this bill are that Adams did not conduct a gambling house in defendant’s building or that defendant did not knowingly .permit such gambling house to be conducted by Adams in his building.

Appellee also insists that the bill does not state the cause of action for the reason that it does not specify and set out in particular the entire transaction and the circumstances under which the money was lost at gaming as alleged in th¿ bill. Upon that contention, it was unnecessary that the bill should set forth these matters as they were matters which were litigated in the action brought by complainant against Adams in the action at law and it must be presumed that the court which rendered that judgment heard sufficient evidence to authorize the rendition of the judgment and in this action defendant cannot raise those questions. It is immaterial that the bill did not set forth these matters as contended for by appellee, as it was unnecessary to do so.

It has been repeatedly held that under police power the Legislature may enact laws protecting the public health and morals and there can be no question but the Legislature had the authority to pass the acts prohibiting gambling and to permit the recovery of the money lost at gaming, and for the purpose of preventing gambling, to pass the act subjecting the property in which gambling is permitted to take place to the payment of any loss by reason thereof. This act is of the same character as those which have been frequently passed upon by the Supreme Court relating to the subjecting of property to a judgment recovered under the dram-shop act. These two acts are of the same character and in actions under the dram-shop act it has been repeatedly held that in the action to subject the building to the payment of the judgment, matters litigated in the action to recover the judgment cannot be relitigated in the action to subject the property to its payment. Wall v. Allen, 244 Ill. 456.

The bill of complaint herein states a good cause of action and it was error to sustain the demurrer to the bill and for the error in sustaining the demurrer the judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    J. W. Brown, Appellee, v. Vandalia Railroad Company, Appellant.
    Common carriers—when shipper estopped to set up wrongful delivery. If a shipper accept payment from a person to whom the carrier has made delivery in error, he becomes estopped to make any claim therefor as against the carrier.
    Appeal from the Circuit Court of Clark county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed.
    Opinion filed October 14, 1911.
    Golden & Scholfield, for appellant; S. W. Fordyce, Jr., of counsel.
    Davidson & Bartlett, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Appellee resided at Casey, Illinois, and sold to Simpson & Company of Chicago five cars of hay. Three cars were shipped and received by Simpson & Company; the remaining two cars are the only ones in controversy, and they were shipped by way of the Vandalia Railroad and were consigned by appellee to himself at Chicago with drafts drawn on Simpson & Company attached to the bills of lading. The bills of lading together with the drafts were sent through a bank at Casey, Illinois, to a bank in Chicago; the bank at Chicágo was requested to notify Simpson & Company. The drafts were not paid by Simpson & Company and the bills of . lading were not delivered to Simpson & Company, and upon investigation it was found that the two carloads of hay had been delivered by the Vandalia Railroad Company to Simpson & Company without a surrender of the bills of lading. The drafts and bills of lading were then returned to Casey, Illinois, and delivered to appellee. After the two carloads of hay were delivered by the railroad company to Simpson & Company, Simpson & Company sent to appellee a statement of the account of the five carloads of hay and with this statement sent him a draft for $159.75, with the statement that the draft was sent as a balance in full for the five carloads of hay. The draft was cashed by appellee and after some time had elapsed the present action was brought against the Vandalia Bailroad Company, alleging wrongful delivery of the two carloads of hay by the Vandalia Bailroad Company to Simpson & Company, that the hay being consigned to appellee no legal delivery to any person than appellee could be made by the railroad.company except upon the representation of the bills of lading properly assigned. The trial below resulted in a judgment against the railroad company for $250, being the amount of the drafts attached to the bills of lading. The trial was had without a jury, and appellant urges as a cause for reversal the admission and rejection of evidence and erroneous holdings by the court upon the propositions of law submitted. It is unnecessary, in the view that this court has taken of the evidence in this record, to pass upon any other question than the one as to whether the evidence authorized a recovery.

The action is brought for the alleged wrongful delivery of the hay by the railroad company to Simpson & Company.

The record discloses that the delivery was in the first instance wrongful and by reason of this wrongful delivery the defendant railroad company became liable to appellee for the fair cash value of the hay so wrongfully delivered and the measure of damages proven by this record and admitted by the trial court was the amount of the drafts drawn by appellee against Simpson & Company. The amount of these drafts was no proof of the value of the hay and was not the measure of damages for recovery in this case. The record further discloses that after the wrongful delivery of the hay by defendant appellee received and accepted from Simpson & Company payment of the amount claimed by them to be due from them to him on account of the shipment of the five carloads of hay. This statement covered the two cars wrongfully delivered. At the time appellee received and accepted this draft he then knew that the railroad company had previous to that time delivered two cars of hay to Simpson & Company without a surrender of the bills of lading and without-any direction so to do by him. By the shipment of this hay to appellee as consignee he retained the right to have the hay delivered to any person he might assign and deliver the drafts to; it was under his control, but by the acceptance of the payment for the hay from Simpson & Company after the wrongful delivery he thereby ratified the delivery and is now estopped to make any claim therefor as against the defendant rail-* road company.

The clerk will enter in the judgment of this court a finding that after the alleged wrongful delivery of the hay by defendant plaintiff ratified the delivery by the defendant to Simpson & Company.

The judgment is reversed.

Reversed.


text:
    William R. Smith, Administrator, Appellee, v. Chicago & Eastern Illinois Railway Company et al., Appellants.
    1. Negligence—liability of lessor company. A lessor or licensor is not only liable for its own negligence but also liable for the negligent acts of the lessee in the operation and management of its trains over the lessor’s tracks.
    2. Negligence—when question of fact. Whether or not it is negligence to run two freight trains at the rate of thirty to forty miles per hour past a platform where passengers are lawfully and rightfully waiting to board a train, is a question of fact for the jury to determine.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Montgomery county; the Hon. J. C. McBride, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    George B. Gillespie and Homer T. Dick, for appellants; Glennon, Cary, Walker & Howe, Gillespie & Fitzgerald, E. H. Seneff and D. R. Kinder, of counsel.
    Hill & Burlington, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff as administrator to recover for the death of his wife, alleged to have been caused by reason of the negligence of the defendants. Trial below resulted in a judgment against both defendants for $2000, from which they appeal.

The declaration contains six counts all alleging, that the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, hereafter called the Big Four, owned and operated a line of railway through the county of Montgomery, state of Illinois, and that the defendant, Chicago and Eastern Illinois Railroad Company, hereafter called the Eastern Illinois, by virtue of a license from the Big Four, ran and operated its trains over the road owned by the Big Four from Irving to St. Louis; that the deceased, on the 17th day of July, 1909, became a passenger of the Eastern Illinois, to be carried from Irving, Illinois, to St. Louis, Missouri; that through and by reason of the negligence of the defendants, plaintiff’s intestate was killed.

The first and second counts allege that it was the duty of the Eastern Illinois Bailroad Company to provide a safe and suitable platform at its station for the purpose of permitting passengers to safely board the trains of that company, that it failed to perform its duty in this regard, and while plaintiff’s intestate was a passenger and upon the platform provided by the Eastern Illinois for the use of its passengers, two freight trains operated and controlled by the Big Four Bailroad Company passed the platform in opposite directions at the same time, at a high and dangerous rate of speed, in violation of an ordinance of the village of Irving. The third count contains the same averments as the first and second, except it does not allege the violation of any ordinance of the village of Irving. The fifth count alleges the violation of an ordinance of the village of Irving, together with the averments of the other counts. The sixth count is virtually the same as the third and fifth counts.

There is no proof of any ordinance of the village of Irving, and the court directed a verdict as to the first, second and fifth counts.

Both defendants pleaded the general issue, and the Eastern Illinois filed one special plea, denying that it was in any manner using or operating either of the trains mentioned in the plaintiff’s declaration, which passed the'platform at the time of the death of plaintiff’s intestate. The Big Four filed a petition for removal to the Federal Court, alleging the fraudulent joinder of the Eastern Illinois for the purpose of preventing removal. The petition for removal was denied.

The evidence discloses that Irving is located on the Big Four Railroad in Montgomery county; that past the depot platform is a double track, with the depot located on the south side; between the tracks is a narrow platform for the use of passengers boarding or alighting from trains on the west bound track. The defendant Big Four owned the railroad right of way, depot and station grounds; the defendant Eastern Illinois operated its trains over the tracks of the Big Four by virtue of a contract or lease between the two companies. They employed the same station agent who sold tickets and attended to all matters relating to both roads. On July 16, plaintiff purchased for himself and deceased tickets from Irving to St. Louis over the defendant Eastern Illinois Railroad with the intention of boarding its train on the morning of the seventeenth; there was no station agent at the depot at the time this train was scheduled to pass through Irving. On the morning in question, plaintiff, with his wife, came to the station for the purpose of boarding this train. > About twenty minutes before it was due to arrive, a train was seen approaching from the east, and, believing this to be the train which they were to take as passengers, they went from the depot on the south side of the tracks, across the east bound track, to the platform for west bound trains and took their position upon the platform between the two tracks. While waiting for the train to approach on the west bound track another train came from the west on the east bound track. The east bound train was known as number 70, and the west bound as number 95. After the engine and several ears of train number 70 had passed the platform where the plaintiff and deceased were standing, number 95 going west passed the platform and the pilot of this engine struck the deceased, threw her against one of the cars of train number 70, she fell under the car and was instantly killed. These trains were run past this platform at the speed of from thirty to forty miles an hour. Plaintiff testifies that he was directed by Mr. Padgett, the station agent from whom he purchased the tickets, to go upon the platform between the tracks upon the approach of the train so that the train-men might see that passengers were there for the purpose of boarding the train. Mr. Padgett denies that he gave any such directions to plaintiff. This seems to be about the only conflict in the evidence. The evidence of the plaintiff is that they were watching train number 95 approach from the east, and did not notice number 70 coming from the opposite direction until it was too late for them to get off from the platform between the tracks.

It is contended by defendants that there is no proof of negligence against them, that the deceased and the plaintiff did not exercise due care, that the court erred in its instructions to the jury and that there is a fatal variance between the allegations of the declaration and the proof.

The only questions for this court to determine are whether the proof is sufficient to warrant the verdict and whether the law has been properly applied to the facts as proven. There can be no serious contention but that the death of plaintiff’s intestate was caused either by reason of a want of due care on her part or by the negligence of one or both of the defendants. The defendant Eastern Illinois Railroad Company sold her a ticket over its road and knew that she was to go from the station of Irving to St. Louis on this train and for this purpose she came to the station provided by it for the use of its passengers to board the train. About twenty minutes before the train was due to pass Irving, she went upon the platform provided for the purpose of boarding this train when it should arrive. That she thereby became a passenger and was entitled to all the protection of the passengers of that company there can he no contention. The train for which the Eastern Illinois Eailroad Company sold her a ticket was due to pass Irving at a time when the railroad company did not furnish an agent or employe at its station for the purpose of assisting its passengers or to give them any information concerning the arrival and departure of trains; although the record does disclose that an employe was at all times, day and night, kept and maintained at the tower from which was operated the block system, and there is some evidence tending to show that plaintiff had a conversation with this servant. If the plaintiff was able to obtain any information or direction from him concerning the arrival of trains, the record fails to disclose it.

It is evident from this record that the train that the deceased was intending to board did not stop at Irving unless there were passengers to get on or off, and it is also evident that unless deceased was on the platform when the train approached, it would not stop. About the only conflict in the evidence is whether or not the agent directed her, at the time the ticket was purchased, to go upon the platform at the approach of the train so that the trainmen might see her waiting at that point. Plaintiff testifies this direction was given, and the agent denies it; it was a question for the jury to determine whether or not the direction was given. Whether such direction was given or not, it cannot be held as a matter of law that because the deceased made a mistake in believing the train which she saw approaching at or about the time the passenger train was due to pass Irving when no agent or employe of defendant was present to advise her whether the train she saw approaching was the passenger train or not, was contributory negligence and that such act by her will bar a recovery.

It is also evident from this record that if the deceased had waited until she was certain the train approaching was the passenger train she was there for the purpose of boarding, it would then have been too late to have caused the train to stop.

The only question involved concerning the act of the deceased in going upon the platform at the time and under the circumstances at the time she went there was one of due care upon her part and that was a question of fact for the jury to deterjnine from all the evidence in the case.

The deceased, at the time of her death, was a passenger on the Eastern Illinois Bailroad and she was entitled to all the protection the law afforded her as such. She was killed while on the platform of this company for the purpose of boarding the train for which it had sold her a ticket. The right of way over which the Eastern Illinois Bailroad company operated its trains was owned by the defendant Big Four, and the Eastern Illinois operated its trains over the tracks of the Big Four as licensee or lessee, and under the law both roads owed her the duty of committing no act of negligence that would injure her.

Under the law of this state, the lessor or licensor is not only liable for its own negligence but also liable for the negligent acts of the lessee in the operation and management of its trains over the lessor’s tracks, and the defendant Eastern Illinois is liable for any injury to its passengers in the operation of its trains, whether the specific act of negligence is committed directly by it or by the company over whose tracks it operates its trains by virtue of its license or lease. Otherwise, the passengers on the road of the lessee or licensee road would be at the mercy of the lessor and all that would be necessary for lessee to escape liability would be to show the negligent act complained of committed by the lessor. It must be held that if the deceased came to her death by reason of the negligent acts of either defendant as charged in the third, fourth and sixth counts of the plaintiff’s declaration, both defendants are liable.

Whether or not it was negligence, to run two freight trains past this platform at the rate of thirty to forty miles per hour when plaintiff and his intestate were lawfully and rightfully thereon as passengers waiting to board the train of the defendant Eastern Illinois Bailroad Company was a question of fact for the jury to determine. In W. St. L. & P. Ry. Co. v. Peyton, 106 Ill. 534, it has been held that a railroad company is held to the exercise of due care for the safety of all persons, while exercising its franchise, whether on its own right of way or .on that of another company, and it is immaterial whether the acts of negligence which caused the injury are committed by servants of the lessor or lessee company. The same doctrine is held in B. v. C. G. W. Ry. Co., 57 L. R. A. 712, and these cases further hold that to permit a licensee or lessee railroad company to escape liability for the acts of negligence of the lessor company is against public policy.

The question of variance insisted upon is that by the averments of the declaration plaintiff’s intestate is alleged to have been upon the platform for the purpose of boarding the approaching train to be conveyed from the village of Irving to St. Louis, is not sustained by the proof, but the evidence is that she went on the platform with the mistaken-idea that the train approaching was the one which she was intending to take as a passenger, when, in fact, it proved to be a freight train. Under the proof that plaintiff’s intestate was directed to go upon this platform tipon the approach of the train, and this freight train having approached near the time when the passenger train was due, and with no one at the station of whom plaintiff’s intestate could inquire whether this was the proper train or not, the fact that she was mistaken and went upon the platform on the approach of a freight train passing so near the schedule time for the passenger train cannot be held to be a variance.

Defendants criticise the instructions given on behalf of plaintiff and especially the instructions designated as number twenty-two. This instruction is not subject to the criticism insisted upon by defendants, but stated to the jury a correct principle of law, and there was no error in giving it. , It is also insisted by the defendant Eastern Illinois Railroad Company that the instructions offered by it and designated as numbers four, five and six of refused instructions, should have been given to the jury; these instructions are based upon the theory that although the Eastern Illinois Railroad Company sold its ticket to plaintiff’s intestate for the purpose of permitting her to become a passenger upon its railroad, and that if the train upon which she intended to become a passenger was operated over the tracks of the Big Four Railroad Company and that those tracks were not under the control and management of the defendant Eastern Illinois Company and that the deceased was killed by reason of the negligence of the Big, Four company, then the defendant Eastern Illinois Company is not liable. These instructions are not correct statements of the law, and they were properly refused.

Upon an examination of the instructions given to the jury, we are satisfied that the jury was fully instructed upon all the questions involved in this case, and that there was no error made by the court in the giving of its instructions to the jury. The court committed no error in refusing the instructions refused by it which were requested on the part of the defendants.

There being no error in this record which has been prejudicial to either of the defendants, the verdict of the jury is fully warranted by the evidence, and the judgment is affirmed.

Affirmed.


text:
    B. M. Egbert, Defendant in Error, v. Bert Morrison, Plaintiff in Error.
    Justice of the peace—what confers jurisdiction. Even though no valid service has been had the appearance of the defendant without objection waives jurisdiction.
    Error to the Circuit Court of Clark county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 14, 1911.
    Rehearing denied December 7, 1911.
    John J. Arney, for plaintiff in error.
    Davison & Bartlett, for defendant in error.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff against defendant to recover the purchase price of iron pipe and tanks sold by plaintiff to defendant.

. Plaintiff had been employed by Parker, Culberson and Company; claiming that they owed him for wages, he brought suit in attachment against them. All the members of this partnership resided in the state of Pennsylvania; a summons was issued but no service was had upon any of the members of Parker, Culberson and Company. They were, however, notified by the constable by mail of the issuance of this summons and the commencement of the action. Parker, one of the members of the firm, in response to the letter sent by the constable, came on to Clark county and was present on the return day of the summons. He appeared before the justice of the peace, and by consent of the parties the cause was continued, with the understanding that during the time of continuance wMch had been agreed upon Parker, Culberson and Company was to send plaintiff a check for the amount of the wages due him; this they did not do. At the time set for trial, the justice’s docket shows that the parties appeared and the record discloses that Parker was present representing the firm of Parker, Culberson and Company. This gave the court jurisdiction and it was immaterial whether or not any summons was ever issued or ever served on defendant. Upon the judgment rendered by the justice of the peace'an execution was issued and levied upon the property of Parker, Culberson and Company. The property was advertised for sale by the constable and at that sale the plaintiff in this case bought the property. He took possession of the property under the sale and afterwards sold and delivered it to the defendant herein. After the sale and delivery, defendant herein was notified by Parker, Culberson and Company that there was no valid judgment and the sale under which plaintiff claimed the property was void, that the property belonged to them. After this there was a pretended sale of the property by Parker, Culberson and Company to Barnsdall and Hayes. Defendant claims to have purchased the property from Barnsdall and Hayes, and to defeat this action relies wholly upon the contention that the justice court had no jurisdiction of Parker, Culberson and Company and the judgment rendered by him is void. The appearance of Parker who was a member of the firm of Parker, Culberson and Company, gave the court jurisdiction of that firm and the judgment rendered by the justice is not void. The evidence in this record shows jurisdiction both of the subject-matter and of the persons in the action before the justice of the peace. Even had the judgment been void, defendant cannot be permitted to retain the property and by reason of the purchase of an outstanding claim thereon defeat plaintiff’s action upon his contention that the judgment was void and that he was not liable for the purchase of the property from plaintiff by reason thereof; before he could do that, the law requires that he should return the property to the plaintiff. This he did not do, and he cannot be permitted to defeat this action on failure to do so.

Certain propositions of law were submitted to the court and it is insisted by the plaintiff in error that the court erred in holding these propositions of law. We find, upon examination, that the propositions are substantially correct and that no reversible error exists in this record.

The judgment is affirmed.

Affirmed.


text:
    William Krueger, Administrator, Appellee, v. Union Gas & Electric Company, Appellant.
    1. Master and servant—when negligence of fellow-servant no defense. Where the negligence of the master is proven and his negligence is the proximate cause of the injury or death, then the fact that the negligence of a fellow-servant may have also contributed to the injury will not bar a recovery.
    2. Negligence—when charges sufficiently established. Where one charge of negligence is averred in one or more counts of the declaration and that charge is sustained by the evidence and justifies a verdict, it is immaterial whether other charges in the declaration have been maintained by the proof or not.
    3. Verdicts—when not excessive. Held, in an action for death caused by alleged wrongful act, that a verdict for $2,000, was not excessive where it appeared that the deceased at the time of his death was from 25 to 28 years old and left him surviving a father and mother to whose support he contributed.

      Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    Lillard & Williams, for appellant.
    De Mange, Gillespie & De Mange, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought to recover for the death of plaintiff’s intestate caused by an explosion at the plant of the defendant company in Bloomington, Illinois, occasioned by reason of gas escaping in an attempt to make a connection of two pipes in a building at the plant of the defendant company. The charges of negligence in the declaration are that the defendant company negligently and carelessly employed and kept in its employ an incompetent and unreliable superintendent, and that by reason of the negligence of the superintendent in the method and manner of directing the conduct of the men who were engaged in making the connection, an explosion occurred and plaintiff’s intestate lost his life; also that the defendant did not use reasonable care and caution in furnishing reasonably safe material and appliances to the plaintiff’s intestate and servants engaged with him in the performance of the work which they were directed to do; also that by reason of defendant having an incompetent and unskillful superintendent in the management of its business the deceased and the servants engaged with him were ordered and directed to proceed with appliances and material which the defendant then and there knew, or by the exercise of reasonable care and caution should have known, were improper and unfit for use in the performance of the work required of them, and which defendant by its incompetent servant assured plaintiff’s intestate were sufficient etc.

The trial resulted in a verdict and judgment against defendant for $2,000, from which this appeal is prosecuted.

The grounds of reversal urged by defendant are that the verdict is contrary to the law and the evidence, that the court erred in refusing to exclude the evidence and direct a verdict for the defendant on motion of the defendant, that the negligence of a fellow servant was the proximate cause of the death of plaintiff’s, intestate, that the court erred in the admission and rejection of evidence and also in the giving and refusing of instructions, and that the damages are excessive.

The cause was tried upon four counts of the declaration designated as four additional counts. These counts all charge the defendant with being the owner and proprietor of a certain gas plant maintained for the purpose of furnishing gas for heating and lighting purposes in the city of Bloomington.

The first count charges that while the deceased was making a connection at the plant of the defendant under and by virtue of orders of servants of the defendant, not fellow servants of the deceased, and in the exercise of due care and caution for his own safety, gas escaped from the point where the connection was being made and that defendant carelessly permitted a test light with an open flame to be in a room in the said building then and there adjacent to the place where said connection was being made, by reason of which an explosion occurred and plaintiff’s intestate was killed. The second count charges that while plaintiff’s intestate was making a connection at the plant of the defendant company, the defendant negligently and carelessly furnished and provided plaintiff’s intestate and the servants assisting him in making said connection with collapsible rubber bags to prevent the escape of gas and that said bags were not of sufficient size or capacity and were insufficient to prevent the escape of gas; and that defendant knew, or by the exercise of due care and caution should have known, that they were not sufficient for the purpose for which they were used, and that defendant, so knowing that the bags were insufficient and incapable of preventing the escape of gas, by its servants, not fellow servants of plaintiff’s intestate, assured deceased and other servants engaged with him that they were of sufficient size and could be safely used, and negligently and carelessly ordered and directed the use of such insufficient rubber bags; that by reason thereof gas escaped and an explosion occurred. The third count charges that defendant negligently and carelessly failed to reduce the pressure of gas in the pipes upon which the connection was so attempted to be made, so as to prevent an unreasonable escape thereof, and by reason thereof an explosion occurred and plaintiff’s intestate was killed. The fourth count charges that plaintiff’s intestate was in the exercise of due care and caution for his own safety in the regular line of his duty in assisting to make the connection ordered by defendant’s servants, not then fellow servants of plaintiff’s intestate, that defendant had employed and retained in its service an unskillful and incompetent person, investing him with authority to conduct its business and to command, order and direct plaintiff’s intestate to perform work required of him and that by reason of the incompetency and unskillfulness and inability of the said servant to properly manage and direct the conduct of said business and direct the performance of the duties of plaintiff’s intestate, large quantities of gas were permitted to escape and an explosion occurred whereby plaintiff’s intestate was killed.

An examination of this record discloses that the defendant had in its employ as superintendent, in charge of its work and in full and complete authority over the other employes of the defendant and over plaintiff’s intestate, a person who had had no previous experience in the management and direction of a gas plant; that, previous to that time, he was a common laborer and blacksmith, that his general reputation as a competent and reliable man for the management and conduct of the business and control of the plant was bad, that under and by virtue of his directions the connection was attempted to be made in one of the buildings of defendant ’s plant known as the water gas building; that plaintiff’s intestate and another servant named Wall-man were directed to make the connection in this building; that in order to do so it was necéssary to open and disconnect the pipes in which the water gas of defendant’s plant was conducted; that upon the opening of these pipes and the removal of the caps it was necessary to prevent the escape of gas, and for this purpose rubber bags were required to be placed in the pipes and inflated; that for the proper performance of this work in preventing the escape of the gas it was requisite that plaintiff’s intestate and the servants working with him should be furnished with bags known as ten-inch bags; that the superintendent of defendant’s plant was called upon to furnish ten-inch bags for this purpose and that he informed the servants employed in the work that he did not have ten-inch bags and sent them to another building in the plant to see if the bags could be obtained; that none of that capacity were found and the servants were then ordered and directed by the superintendent to proceed to work with two eight-inch bags, and that said bags were inadequate and insufficient for this purpose, and that the superintendent of defendant was so informed, but notwithstanding the information he then informed plaintiff’s intestate and Wallman, the servant working with him, that the eight-inch bags would have to do the work and for them to go ahead and use them; that an opening was made in the pipe and the eight-inch bags inserted; when inflated they did not prevent the flow of gas but permitted large quantities to escape; the servants undertook to stop the flow of gas by caulking the openings and that in order to do this it was necessary to have a tool known as a yarning tool, which Wallman supposed was among the tools brought by him for the performance of this work; that upon examination of the tools in the building where the connection had been opened, no yarning tool was found, and the servant Wallman went to the blacksmith shop for the purpose of securing a yarning tool, with which to do this caulking and stop the flow of gas; that when he returned to the building where the connection was being made, he found Yeatch, the superintendent, and plaintiff’s intestate in the building attempting to escape; that the escape of gas had been so great that they were overcome and were endeavoring to escape from the building; that when the door through which they were to pass was opened the explosion occurred and the plaintiff’s intestate was killed.

It is insisted by defendant and the principal defense relied upon by it is that Wallman who was working with the deceased in attempting to make this connection was negligent in not having brought with him a yarning tool before- commencing to disconnect the pipes for the purpose of doing the caulking, if the gas should escape, and that it was by reason of his negligence in failing to provide this tool that he was required to go to the blacksmith shop, three hundred feet distant, to secure it. The record discloses that if Wallman had had the tool there at that time he might have prevented the escape of gas. It also discloses that if a ten-inch bag had been furnished that it would have been unnecessary to use the caulking tool or to use any other means of preventing the escape of the gas.

Even if Wallman was a fellow servant of plaintiff’s intestate and if it was through his negligence that no yarning tool was provided for the purpose of caulking the openings if it should be necessary so to do, the fact that his negligence contributed to cause the explosion, will not bar plaintiff from a recovery if the defendant was guilty of failing to furnish proper and sufficient appliances and materials for the purpose of stopping the escape of gas, and the failure of the defendant to so furnish the proper appliances for this purpose was the proximate cause of the escaping gas which exploded and caused the death of the plaintiff’s intestate.

It is a familiar rule of law that where the negligence of the defendant is proven and its negligence is the proximate cause of the injury or death, then the fact that the negligence of a fellow servant may have also contributed to the injury will not bar a recovery. Ry. Co. v. McLallen, 84 Ill. 109; Ry. Co. v. Powers, 74 Ill. 341; Yeates v. L. C. R. R. Co., 241 Ill. 205; C. U. T. Co. v. Sawusch, 218 Ill. 130; Kennedy v. Swift & Co., 234 Ill. 606.

Where one charge of negligence is averred in one or more counts of the declaration and that charge is, sustained by the evidence and justifies a verdict, it is immaterial whether other charges in the declaration have been maintained by the proof or not, and upon this record the jury was fully warranted in finding the defendant guilty of negligence as charged in the second count of the declaration, and that that negligence was the proximate cause of the death of plaintiff’s intestate.

It is insisted that the damages are excessive. The deceased left surviving him his father and mother, and there is evidence that he furnished them with sums of money during his lifetime and that at various times he had resided with them and contributed to the household expenses, and under the law of this state, the law presumes without proof that they have sustained substantial damages; but it is insisted by the defendant that because the proof discloses that the deceased left surviving him two brothers as next of kin and that there is no proof that he had ever contributed anything to their financial welfare that they are not entitled to recover as lineal descendants and the damages are excessive.

Even without proof that the brothers suffered financial loss we are satisfied that the verdict for $2,000 for the death of a son from twenty-five to twenty-eight years old, leaving him surviving his father and mother, is not excessive, and the question as to whether or not the brothers have sustained pecuniary loss is not a question now involved in this controversy; it is only necessary to prove that the deceased left next of kin and that some of the next of kin have suffered pecuniary loss. The matter of the distribution of the amount of the recovery and to whom it shall be finally paid does not concern the defendant, that is a matter of distribution to be made by the administrator in the county court after the collection of the judgment.

Appellant insists that there is a variance between the proof and the allegations of negligence in the declaration and that this variance was pointed out in the trial below and by reason thereof there can be no recovery. The variance insisted upon consists in the fact that the allegations of the declaration are that the explosion was occasioned by reason of the ignition of the gas by a test light in the office of the defendant company in a room adjacent to the room wherein the connection was being made.

We do not consider that the question as to whether or not this explosion was occasioned by reason of that light or that the gas was ignited from some other cause is material; the gist of the cause of action is the failure of the defendant to furnish proper appliances, and in ordering and directing plaintiff’s intestate to perform work with inadequate and insufficient applianees, by the superintendent of the defendant company, after notice to him that such bags were insufficient, it is immaterial whether the gas after so escaping was ignited by this test light or by some other means; but we do not think the jury were unwarranted in finding that the explosion was occasioned by reason of the gas escaping into the room where the test light was.

The criticism of the plaintiff’s first and second given instructions is not well taken. These instructions are not subject to the criticism made and there was no error in giving them to the jury.

The seventh refused instruction which it is insisted should have been given was properly refused as singling out certain portions of the testimony and particularly drawing the attention of the jury thereto.

The eighth refused instruction was properly refused as not being a correct statement of the rule governing fellow servants.

From what we have here said it is unnecessary to discuss the question of the action of the trial court in refusing to give a peremptory instruction as requested by the defendant.

There is no reversible error in this record and the judgment is affirmed.

Affirmed.


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    J. A. Elliott et al., Appellees, v. Arabella A. Anderson, Appellant.
    Statute of frauds—when defense to action for damages for refusal to convey land. In the absence of a contract executed by the owner of land or by his duly authorized agent, a recovery of damages cannot be had for an alleged failure to convey.
    Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran. Judge, presiding. Heard in this court at the May term, 1911.
    Reversed.
    Opinion filed October 14, 1911.
    Rehearing denied, opinion modified November 11, 1911.
    E. J. Miller, for appellant.
    E. E. Wright and Jack, Deck & Whitfield, for appellees.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Plaintiffs allege in their declaration that defendant bargained and sold to them a certain tract of land located in Moultrie county, Illinois, that she failed to carry out her contract and convey the premises in accordance therewith and this suit is brought by them to recover damages alleged to have been caused by reason of such failure. The jury returned a verdict for plaintiffs of $300 upon which judgment was rendered and from which defendant prosecutes this appeal.

The declaration charges in all counts except two that the defendant bargained and sold to the plaintiffs the lands in question and signed a written agreement to convey said premises to the plaintiffs upon the payment of certain considerations therein expressed. The other two counts charge that defendant by and through an agent duly authorized by her, made and executed a contract for the conveyance to them of the premises in question. The counts all allege readiness and willingness on the part of the plaintiffs to fulfil the contract and pay the defendant the amount due on delivery of the deed. Defendant pleaded the general issue and the Statute of Frauds.

The record discloses that no contract in writing was ever signed, executed or entered into by the defendant with the plaintiffs, and there is no attempt to sustain those counts of the plaintiffs’ declaration in which they allege a contract executed by the defendant. In support of the counts which allege that the defendant, by and through a duly authorized agent, made and executed a contract with the plaintiffs, the evidence discloses that one Int Stanley, whom plaintiffs claim was the duly authorized agent of the defendant and who executed the contract for her, was the publisher of a newspaper, dealing in real estate in his leisure hours; that Stanley wrote to the "defendant, stating that he thought he could dispose of the real estate for $150 per acre and asked defendant if she desired to sell. He was informed by her that she did desire to sell, and she asked him if he could find a buyer and told him if he could to sell the land. Some time after this, plaintiffs went to Stanley and informed him that they would like to buy this farm and asked him whether it was for sale, or whether he had it for sale. He informed them that he had, and after some negotiations between the plaintiffs and Stanley, a contract was drawn up between them and signed by the plaintiffs and signed by Stanley as the agent of the defendant. The record does not disclose in any way that Stanley had any authority whatever to sign, execute or deliver a contract for the defendant, and in his testimony he denies that he had such authority, and testifies that he so informed the plaintiffs, and the record discloses that the contract which was made was signed by him as her agent at their request for the purpose of attempting to hold the land under the contract; that it was placed in the hands of a banker at Lovington in escrow, with the distinct understanding that Stanley should send a telegram to the defendant, which he did, informing her of the sale of the land with the hope that she would reply by telegram ratifying his action. The telegram sent by Stanley informed the defendant that he had written a letter enclosing deeds for her to execute. Defendant did not ratify the contract, but on the contrary refused to execute the deed and directed Stanley to cancel the contract. The contract left with Hostetler in the bank was endorsed as follows: “Not to be delivered until deed is put up.” Eegarding this contract Elliott testified: “The reason I gave the contract to Hostetle'r was because that was the agreement between Stanley and me; he (Hostetler) was told to hold it until March 1. I told him the check was not to be delivered till I got the deed. The contract was to be held until the check and deed were delivered. I told Hostetler when you receive the deed to the land you hand Stanley the check and hold the contract.” Stanley testified: “I told these gentlemen I had no authority to sign her name to bind it unless she ratified it afterwards by letter or telegram. They said they wanted me to sign it so if she ratified it there could be no kick afterwards. The check was never delivered to me. There was no money paid to me by anyone. We agreed that the check and contract should be left at the bank and afterwards wire her. Upon the acceptance I was to get the $500 and they were to get the deed. I told him I had no authority to sign her name, that we would draw up the contract and leave it with some one subject to her acceptance.” Under these conditions the contract was never delivered and never became operative. The defendant refused to execute and deliver the deed.

The contract upon which this suit is based was not signed by the defendant either by herself or by her agent. The contract bore the signature of Stanley “agent for defendant.” Her name was not in the body of the contract and appeared at no place except after the signature of Stanley whereby he describes himself as her agent. This did not make it the contract of the defendant. The averments in the counts of the declaration which allege the execution and delivery of the contract by the defendant through a duly authorized agent are not supported by the evidence in this record.

Defendant also insists that the court admitted numerous improper conversations and talks had by and between the plaintiffs and various other witnesses testified concerning the purchase of this land.

While these conversations were improper and objections thereto should have been sustained, it is not necessary in the view we have taken of this record to enter into any discussion of this or the other errors assigned.

For the reasons above set forth the judgment must be reversed and the clerk will enter in the judgment of this court the finding of fact that the contract agreement or memorandum of agreement was never executed.

Judgment is reversed.

Reversed.


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    John A. Replogle, Defendant in Error, v. Toledo, St. Louis and Western Railroad Company, Plaintiff in Error.
    1. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Instructions—when refusal of correct will not reverse. The refusal of correct instructions will not reverse where their contents are substantially contained in other instructions given.
    Error to the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    C. E. Pope, for plaintiff in error; Charles A. Schmettau, of counsel.
    John H. Marshall, for defendant in error.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff against defendant to recover loss by burning of a clover field and the hay thereon, alleged to have been caused by fire escaping from a locomotive engine passing along defendant’s right of way over the farm of the plaintiff. The trial below resulted in a judgment against defendant for $125.

The declaration charges the ownership and operation of a railroad across plaintiff’s farm by the defendant railroad company and the permitting of dry grass, weeds, and rubbish to accumulate upon defendant’s right of way by means of which fire was communicated from the engine of the defendant to the plaintiff’s property, and the damage occasioned. The declaration also charges the running and operation of a railroad engine .without having'the same equipped with the latest and most approved appliances for the arrest of sparks and escaping fire, and that by reason thereof fire escaped from the engine and set fire to the property of the plaintiff.

The record discloses that the train passed along defendant’s right of way a few minutes before fire was discovered in the field of the plaintiff. The record does not disclose any other means by which fire might have been communicated to the plaintiff’s property. The record also shows that the right of way of defendant had accumulations of dry grass and weeds thereon, that fire did burn upon defendant’s right of way and that plaintiff’s property whs destroyed by reason of fire. Defendant contends, however, that the fire, if it escaped from the engine, did not originate upon the right of way of defendant but that it originated in the field of the plaintiff and that the fire which burned upon the.right of way of defendant was what is known and commonly called “back fire” and that it was communicated to the right of way from the field of the plaintiff and that defendant’s locomotive engine was equipped and provided with the latest and most approved appliances for the prevention of the escape of sparks and fire, and that by reason of these facts, defendant is not liable. While this contention on the part of defendant is correct, it was a question of fact for the jury to determine whether the fire originated upon defendant’s right of way or in the field of the plaintiff, and while the evidence upon this question is very close and while we might not have been willing to find as the jury did upon that question as an original proposition, we cannot say from this record that the finding of the jury upon that question is clearly and manifestly against the weight of the evidence, and in that condition of the record, this court should not disturb the finding of the jury.

Appellant in its argument makes no criticism of any instruction given on behalf of appellee except the second, and the argument presented against this instruction and the criticism made of it seem to be rather far-fetched and merely a play upon the use of the words, “combustible material;” we see no error in the giving of this instruction and the defendant was certainly not prejudiced by it. Appellant also criticises the action of the court in refusing to give its fourth instruction. The propositions involved in this instruction were fully covered by other instructions given; while not in the same language, the language of instruction number eleven and number three fully cover all of the points attempted to be included” in instruction four which was refused. There was no prejudicial error in refusing it.

The judgment is affirmed.

Affirmed.


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    Laura Smith, Appellee, v. Uriah James, Appellant.
    1. Trover—what defense to action against administrator. A plea which sets up ownership in the administrator is a good defense to such an action.
    2. Evidence—when party in interest incompetent. Where the adverse party sues or defends in a representative capacity a party in interest is incompetent.
    3. Instructions—when upon preponderance of evidence erroneous. An instruction upon this subject is erroneous which does not contain all the elements which the jury may consider in determining where the preponderance is but which tells the jury that they must consider only those elements specified in the instruction.
    Trover. Appeal from the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed October 14, 1911.
    Rehearing denied November 8, 1911.

      E. B. Mitchell and Herrick & Herrick, for appellant.
    John Fuller, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action in trover brought by plaintiff against defendant for the alleged wrongful conversion of certain personal property claimed by plaintiff to belong to her. The declaration contained two counts in trover; defendant filed a plea of not guilty and a special plea setting forth that the property in question belonged to one William Smith in his lifetime and that defendant was legally appointed administrator of the estate of William Smith, deceased; that as such administrator he took possession of the property and in that capacity sold it. The plea further alleged that he sold it as such administrator under and by virtue of the order of the county court of DeWitt county, setting forth these facts in proper averments. To this special plea plaintiff filed a replication to which the court sustained a demurrer and on motion of the plaintiff the demurrer was carried back and sustained to the plea. The defendant elected to abide by his special plea and a judgment on this plea was rendered against defendant for costs; issue was then joined upon the plea of not guilty and the cause was tried by a jury, with a finding against defendant upon which a judgment was rendered for $248.75.

The grounds upon which defendant urges a reversal of this judgment are that the court improperly sustained the demurrer to the special plea, improperly rendered a judgment against defendant for costs on that plea, and that the court erred in the admission of evidence over defendant’s objections and in the rejection of evidence offered by him; also that the court erred in the giving and refusing of instructions.

Upon the contention that the court erred in sustaining the demurrer to the special plea, this plea "not only contained the plea of property in the administrator but also undertook to avoid the conversion by attempting to show that defendant, in good faith as such administrator, sold the property under decree of the county court. While a decree and order of sale by the county court by the administrator is not a protection to the administrator for the wrongful conversion of the property and is not properly pleaded in an action of trover against the administrator, this plea not only set forth the sale by the administrator under order of the court but alleged the ownership of the property in the administrator, and if the property belonged to the estate and was in the hands of the administrator as such, then it was properly to be pleaded in defense in this action; for this reason the demurrer should not have been sustained to this plea.

Upon the contention of the improper admission and rejection of evidence, plaintiff claims the property, and upon the plea that the property was in the hands of the defendant as administrator of the estate of William Smith and that he was entitled to hold it as such and that he defends it in the capacity of administrator, the plaintiff was an incompetent witness to all transactions that took place between her and the deceased during his lifetime, but the court permitted her to testify in regard to these matters. The objection that she was an incompetent witness as to such matters should have been sustained. Defendant offered to show that plaintiff had made numerous statements to divers parties concerning this property after the death of defendant’s intestate, which were against her interest, and in which it is contended that she said the property belonged to William Smith in his lifetime. Objection to this class of evidence was improperly sustained and it was error to refuse its admission. Defendant also offered in evidence copies of his letters of administration for the purpose of showing the capacity in which he claimed to have received this property; he also offered the files and records of the county court including the inventory, appraisement, and orders and decrees of the court directing the sale. Objections to all that class of evidence, excepting the copies of the letters of administration, were properly sustained, but defendant should have been permitted to introduce copies of his letters of administration of this estate.

Upon the question of the instructions, they are based principally upon the theory upon which this case was tried and in that regard they are erroneous. Special objection is made to the fifth instruction. This instruction in its language limited the jury to certain facts and circumstances named in the instruction in determining the weight and credit that the jury should give to the various witnesses. This instruction contained only a part of the elements or matters which the jury are entitled to consider in determining the weight of the evidence. Where an instruction undertakes to give or define the elements that the jury may consider in determining the weight and character of the evidence it must include all of the matters that .are competent to be considered in determining this weight, and in addition to not containing all of the elements, the jury were instructed that they should alone consider those named in the instruction.

Special complaint is made of instruction 5y2, but the criticism of this instruction is not well taken. The instruction informed the jury that the defendant was sued as an individual but that the fact that he defended as administrator was no defense to the action if they believed from the preponderance of the evidence that the property was the property of the. plaintiff. There was no error in the giving of this instruction.

Instruction No. 7 given on behalf of plaintiff was erroneous in telling the jury that the burden of proof was upon the defendant to show that plaintiff was not the owner of the property under certain conditions; the preponderance of proof did not shift to defendant ...in this action; it was all times upon plaintiff, to show that she was the owner of the property and entitled to its possession.

From what has heretofore been said, doubtless all other errors in the instructions will be corrected in another trial, which must be had in this case.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    Jennie E. Schaffner, Plaintiff in Error, v. State Board of Agriculture, Defendant in Error.

      Pleading—how hill of complaint construed. A bill of complaint, like' all other pleadings, is to be construed most strongly against the-pleader.
    Bill in equity. Error to the Circuit. Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed October 14, 1911.
    S. H. Cummins, for plaintiff in error; Julius N. Heldman, of counsel.
    Warren E. Lewis, for defendant in error; Davis McKeown, of counsel.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Complainant filed her bill in equity against defendant for the purpose of collecting an alleged assignment of wages by one McCoy who was a clerk in the employ of the State Board of Agriculture. The court sustained a demurrer to the bill and dismissed the bill for want of equity. Complainant brings the cause to this court upon a writ of error to reverse that decree.

Complainant alleges in her bill that one McCoy made and executed to her a promissory note for $120, dated October 13,1899, that McCoy was then employed in the oEce of the Secretary of the State Board of Agriculture, and that in order to secure the payment of that note, which was payable February 1, 1900, said McCoy made an assignment of the wages to be earned by him during the months of January and February, 1900, to her, by written assignment, and authorized the State Board of Agriculture to pay the wages of McCoy for those two months to her. The bill then alleges that during the month of March, 1900, she presented the assignment to the State Board of Agriculture and demanded the wages earned by said McCoy during the months of January and February, 1900; payment was refused. That on May 4, 1900, she obtained a judgment against McCoy; an execution on that judgment was issued and returned nutta bona. That thereafter garnishment proceedings were instituted by complainant and defendant served as garnishee; that upon the answers made by defendant in the garnishment proceedings it answered that it had paid to the said McCoy his wages during the months for which he had been employed, that.it was not indebted to him and had no funds belonging to him; on this answer defendant was discharged. Complainant then further alleges that she has no remedy except in a court of equity, alleging the equitable assignment of these wages, and prays that the court order and direct defendant .to pay to her a suEcient amount of the wages earned by McCoy during the months of January and February, 1900, to liquidate this note.

It is a familiar rule of practice that a pleading must be taken most strongly against the party pleading it.

The bill does not allege that the defendant, State Board of Agriculture, was ever informed or knew of the pretended assignment of these wages before the month of March, and there is no averment that the pretended assignment was ever presented to the State Board of Agriculture prior to the month of March, 1900. It must be presumed that no presentment of the assignment was made prior to that time and that defendant had no knowledge or information of such assignment prior to the time when it is alleged to have been presented in this bill, the presumption being that if presentation had been made sooner than that, complainant would have averred it in her bill.

There is no averment in the bill that the wages earned by McCoy were not paid to him by defendant during the months which they were earned and that full and complete payment of the wages during these months had not been made at the time of the presentation of the order to defendant in March. Under the rule that a pleading is to be taken most strongly against the pleader, the presumption prevails that payment had been made to McCoy at that time, without any knowledge or information regarding the assignment. It, therefore, does not appear from this bill that complainant was entitled to any relief, even upon the contention, which is not conceded, that it was a valid assignment, and the court properly sustained the demurrer to the bill, and, upon plaintiff’s abiding by the bill, properly dismissed the bill for want of equity.

There being no error in this record, the judgment is affirmed.

Affirmed.


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    J. N. Bras, Appellee, v. John H. McKinstry, Appellant.
    ■1. Attachment—what not within the jurisdiction of the County Court. It is not within the jurisdiction of the County Court in an attachment proceeding to determine the title and ownership to real estate as between the defendant and a garnishee.
    2. Garnishment—what not Subject to. Equitable estates are not subject to garnishment.
    Appeal from the County Court of De Witt county; the Hon. Bred C. Hill, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed.
    Opinion filed October 14, 1911.
    E. J. Sweeney and E. B. Mitchell, for appellant.
    Ingham & Ingham, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

J. N. Bras, appellee, began an action in attachment in the County Court of DeWitt county against the Panhandle Pecos Valley Land Company, a corporation of the State of Missouri. No personal service was had upon the defendant corporation. The writ of attachment was levied upon certain town lots located in the city of Clinton, Illinois, as property of the defendant corporation, and appellant, John H. Mc-Kinstry, was named and served as garnishee in said attachment. No property was levied upon in the writ of attachment except the real estate and appellant, John H. MeKinstry, was served as garnishee because the title to this real estate was in him, the contention of appellee being that the real estate belonged to the defendant corporation and that it was the real owner notwithstanding the fact that the title was in John H. MeKinstry, appellant. Appellee filed interrogatories for appellant garnishee to answer; these were answered by him fully and completely, denying that he held any property belonging to the defendant corporation or that he was indebted to said corporation in any amount. It is not contended by appellee that John H. McKinstry, garnishee, was indebted in any manner to the defendant corporation or held or had any property belonging to it unless the said real estate was so held. Appellee traversed the answers of appellant garnishee and upon the issues thus formed the County Court of DeWitt county proceeded to determine the rights of the garnishee and the defendant in the attachment on this real estate and to determine whether the real estate was owned by the defendant corporation or by garnishee. Upon the hearing the County Court found and entered judgment that John H. Mc-Kinstry, garnishee, was not the owner of the said real estate but that the same was owned by the defendant corporation, and rendered judgment against the defendant, Panhandle and Pecos Valley Land Company, in the attachment and awarded a special execution for the sale of the lands levied upon. From that judgment, appellant prosecuted this appeal. •

By this proceeding and by its judgment the County Court has assumed under its common law jurisdiction to determine a question of title to real estate, and has by its judgment held that John H. McKinstry, the owner of the record fee title to this property, is not the real owner thereof, but that said real estate is owned by and is the property of the Panhandle and Pecos Valley Land Company. A County Court has no equitable jurisdiction or power to determine the rights of parties to real estate in a proceeding of this character. It has no power to determine the question as to whether this real estate belongéd to the defendant corporation or to the garnishee. The question as to whether he was the legal owner thereof cannot be determined by the County Court,. If the real estate equitably belonged to the defendant corporation, the fact that the record title was vested in the garnishee deprived the County Court of any right or power to determine the rights of the parties thereto in the garnishment proceeding, even if the County Court had jurisdiction to determine a question of title to real estate. In a garnishment proceeding the judgment creditor can only recover from the garnishee such property or effects as the judgment debtor might recover from him in an action at law. With the legal title to the real estate in John H. McKinstry, garnishee, the defendant, Panhandle and Pecos Valley Land Company, could only recover it in an action in equity. Equitable estates are not subject to garnishment. Webster v. Steele, 75 Ill. 544; Ives v. Vanscoyoc, 81 Ill. 120; May v. Baker, 15 Ill. 89; Dressor v. McCord, 96 Ill. 389.

It is unnecessary for us to determine the other . questions raised upon this record.

The judgment of the 'County Court is reversed.

Reversed. .


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    R. L. Partlow, Appellant, v. A. B. Bean, Appellee.
    Appeals and errors—what not final judgment. A judgment for costs upon sustaining a demurrer is not a final judgment from which an. appeal may be taken.
    Mandamus. Appeal from the Circuit Court of Clark county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the November term, 1910.
    Dismissed.
    Opinion filed October 14, 1911.
    Davison & Bartlett, for appellant.
    J. W. Graham, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action by petition for mandamus to compel A. B. Bean, a justice of the peace, to issue an execution upon an alleged judgment rendered by him. Answer was filed to this petition and a demurrer filed to the answer; the demurrer was sustained to the answer and by the court carried back and sustained to the petition for mandamus. The petitioner then amended his petition and a demurrer was filed to the amended petition; this demurrer was also sustained and upon sustaining this demurrer the court then rendered judgment against the petitioner for costs and awarded an execution therefor. The petitioner did not elect to stand by his petition and no judgment was rendered in bar of action; neither was the petition dismissed. . The judgment for costs upon sustaining the demurrer is not a final judgment and there was no final judgment rendered from which an appeal is authorized; the appeal is from an interlocutory order and gives this court no jurisdiction of this cause.

The appeal is dismissed with leave to either party to withdraw the record and apply to the circuit court for final judgment.

Dismissed.


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    William C. Wolf, Defendant in Error, v. Albert Crook, Plaintiff in Error.
    1. Assault and battery—what does not justify. While a person may defend his own home against attack the law does not allow him to afterwards inflict revengeful punishment upon one who has played a prank upon him while in such home, he realizing that at the time of inflicting such punishment that neither his home nor himself nor any member of his family is in danger.
    2. Assault and battery—how proximate cause of injury determined. Whether an injury is the result of the assault committed is a question of fact to be determined by the jury from the .evidence.
    3. Trial—exhibition of injury. It is within the discretion of the trial judge to permit a plaintiff suing for injuries to exhibit the same to the jury.
    Error to the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed October 14, 1911.
    Chafee & Chew and F. E. Latch, for plaintiff in error.
    W. C. & W. L. Kelley and Richardson & Whittaker, for defendant in error.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by William C. Wolf, by his next friend, against Albert Crook to recover damages alleged to have been caused by reason of assault and battery committed by defendant on the person of the plaintiff. The trial below resulted in a verdict against defendant for $1200, upon which judgment was rendered.

The grounds urged by defendant as cause for reversal of the judgment are, that the judgment is excessive, that the court erred in permitting the jury to inspect the plaintiff’s mouth, the condition of which was alleged to have been caused by injuries inflicted by defendant, that the court erred in giving instructions on behalf of the plaintiff and in refusing instructions asked by the defendant.

The record discloses that on the evening of January 8, 1908, the plaintiff, with several other boys residing in his neighborhood, constructed and took to the house of the defendant a device known to boys as a “tick-tack.” Defendant and his family had all retired for the night; the tick-tack was placed by some of the boys who accompanied the plaintiff upon the side of defendant’s house; plaintiff, with the other boys, then went to a place of concealment where they had the end of the string, and the operation of the tick-tack was begun. It roused the defendant from his slumbers, he took a light and attempted to find the cause of the disturbance; he did not succeed and retired again. After the light was extinguished and all was quiet, the tick-tack again began to operate and defendant was again aroused. This time he succeeded in locating the string and started to follow it to the hiding place of the plaintiff and his companions. Before he arrived at their hiding place, they scattered and defendant followed in the direction in which they went. Plaintiff, with two other boys, attempted to conceal themselves by lying down in the grass; defendant, however, discovered them; two of them ran; plaintiff was seized by defendant and severely beaten, the re-suit of which was that his face became very much swollen, his eyes blackened and closed; he was confined to the house for something like a week as a result of the injuries. A doctor was summoned on the evening of the injury and dressed the wounds. Plaintiff apparently recovered from the injuries but suffered with what was supposed to be neuralgia during the entire summer. The following December, his face again became swollen and his suffering was so intense that physicians were called and found that he was suffering from a fracture of the upper jaw, that pieces of the bone had become loosened and had become detached, that pus had formed and was escaping through an opening in the roof of the mouth, and there were indications of blood poisoning. An operation was performed for the relief of these conditions, five teeth were removed and several pieces of bone taken from the head of the plaintiff.

There is no dispute in the record concerning the beating of the plaintiff by defendant on the night in question, but defendant in his answer to this insists that he was defending his home and habitation from assault and was justified in the act, and insists that the court erred in not instructing the jury, at his request, that he had the right to defend his home and habitation.

While the law recognizes a man’s home as his castle and permits him to defend it against assault or against assault against any member of his family while therein, the evidence does not disclose that any such assault was made. At the time of the injury, plaintiff was not upon the premises of the defendant; the defendant had followed the plaintiff and his companions for a considerable distance after discovering them and began the attack without any provocation at that time from the plaintiff. The law does not permit a person to avenge himself of,his grievances in this manner. There was no assault being made upon either defendant or his habitation at the time he committed the acts complained of; he had had time then 'to consider what had been done and realize and know that at the time he committed the assault upon the plaintiff he was in no danger personally of receiving any harm and his habitation or anyone therein was in no danger of being injured; his action in this regard was neither in defense of his habitation nor of himself and was wholly unjustifiable. While a man may be aggravated and angered by acts done by other parties, he must not permit his anger to lead him to violations of the law.

Upon the question of permitting the jury to inspect the results of the injury, while courts are not all-agreed upon the propriety of permitting a jury to inspect an injury, the- doctrine has been recognized in this state and has been sustained so frequently that it is not error to permit it.

The third and fifth instructions given on behalf of the plaintiff are not subject to the criticism made by defendant, and there was no error in giving them. It was not necessary that they should refer in any manner to the question of the defense of either defendant’s person or his habitation, and there is no evidence in this record to base any such contention upon. Neither was there error in the court’s refusing the instructions which defendant insists should have been given, being numbered one to eight inclusive of defendant’s refused instructions; there is no evidence in this record upon which to base these instructions or the principles of law therein involved; they were properly refused.

The question as to whether or not the injuries shown by this record to have been sustained by the plaintiff were caused by and were the natural and proximate results of the assault and battery committed upon the plaintiff by defendant were questions for the jury, to be determined by them from all the evidence in the case.

We are not able to say that the finding of the jury was not warranted by the evidence in this record; the injuries were of such a character and were so severe that we do not deem the verdict rendered by the jury excessive.

Finding no reversible error in this record, the judgment is affirmed.

Affirmed.


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    Illinois Central Railroad Company, Appellant, v. A. L. Woolery, Appellee.

      Damages—when judgment reversed notwithstanding evidence shows plaintiff only entitled to nominal damages. Notwithstanding the evidence adduced may show that the plaintiff was only entitled to nominal damages yet if it further appears from the record that upon another trial substantial damages may be recovered a reversal will be awarded.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cumberland county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed October 14, 1911.
    Ulysses S. Schwartz and John G. Drennan, for appellant; Brewer & Brewer, of counsel.
    Bryan H. Tivnen, for appellee; James Vause, Jr., of counsel.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff to recover freight charges for the shipment of two horses by appellee from New Orleans, Louisiana, to Neoga, Illinois. The trial below resulted in a verdict and judgment against plaintiff from which it appeals, urging the usual grounds for reversal.

This action was commenced originally before a jus-' tice of the peace; a judgment was taken by default before the justice of the peace for $100.25. From that judgment defendant prosecuted an appeal to the circuit court. The amount claimed by plaintiff upon that trial was $90.25.

Defendant delivered to plaintiff at New Orleans, Louisiana, two horses for shipment to Neoga, Illinois. The horses were race horses and had been used for racing purposes both prior to and after the shipment. The freight rate was higher upon race horses than upon common horses. After the horses had been delivered to the company for shipment and had been loaded upon the car, the agent of the railroad company informed defendant that he had ascertained that these were racing horses and insisted on defendant signing a contract of shipment designating them as such. The cars were then upon the track and defendant protested against signing the contract of shipment presented to him, but he was either compelled to sign this contract as presented or permit the horses to be taken upon the train without his accompanying them. Upon the arrival of the horses at Neoga, defendant was permitted to remove them from the car without the payment of any freight charges, the agent at Neoga at that time not knowing what the charges were.

The horses were shipped from New Orleans direct to Neoga. Plaintiff had no rate upon a shipment of this character from New Orleans, Louisiana, to Neoga, Illinois, and insists that it is entitled to recover the amount of the rate published as a requirement by the Interstate Commerce Act, from New Orleans to Cairo, and the local rate from Cairo to Neoga, Illinois. The rate established under the Interstate' Commerce Act from New Orleans to Cairo was $78.75', and the other was $11.52, but the record shows the horses were never taken from New Orleans to Cairo and never taken from Cairo to Neoga. They were taken from New Orleans to Mounds, Illinois,' and from Mounds to Neoga, Mounds being about nine miles from Cairo. There is no evidence in this record of any rate from New Orleans to Mounds or from Mounds to Neoga and there being no evidence of any rate by the defendant company from these points or from New Orleans to Neoga and no contract rate agreed upon, if plaintiff can recover at all it must be upon the theory of a reasonable compensation for this shipment, and while there is no evidence in this record of any snch reasonable compensation or any reasonable rate of shipment, the plaintiff is entitled to recover for sendees rendered in this shipment. While the proof as it now stands only shows plaintiff is entitled to recover nominal damages, and a judgment will not be reversed to permit only nominal damages to be recovered, it is evident that on another trial plaintiff will be able to recover substantial damages.

Plaintiff insists, however, that in order to reach the station of Mounds from New Orleans the cars in which the horses were shipped were required to pass through the yard limits of the city of Cairo. This is wholly in the argument of counsel; there is no evidence in the record showing such to be the fact. Plaintiff insists that by reason of the cars passing through the yard limits of Cairo this constituted a shipment from New Orleans to Cairo and also a shipment from Cairo to Neoga .and that the horses were, therefore, taken by it from New Orleans to Cairo and from Cairo to Neoga, and it is upon this contention that they undertake to recover their published rate from New Orleans to Cairo and from Cairo to Neoga. This contention cannot be sustained on this record.

The judgment in this cause is so palpably against justice and right that the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Winifred O’Farrell, Appellant, v. Malinda Vickrage et al., Appellees.
    1. Attachments—what issues raised by interplea. The only question raised by an interplea in attachment is the title to the property involved and no other issue should be tried.
    2. Attachments—what evidence inadmissible upon trial of inter-plea. Evidence as to the transactions out of which the claim of the plaintiff against defendant in attachment arose and evidence of the illegitimate character of such transactions, is incompetent upon the trial upon the issue raised by an interplea.
    3. Husband and wipe—when latter’s property not subject to former’s debts. Property of the wife cannot be subjected to the debts of her husband unless she has permitted it to be used by him in such manner as to induce the credit given.
    Appeal from the City Court of Pana; the Hon. J. E. Dunnegan, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 14, 1911.
    W. H. Chew, E. A. Humprey and W. B. McBride, for appellant.
    Hogan & Wallace and McQuigg & Dowell, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This action grows out of an attachment writ issued out of the city court of Pana against one E. F. O’Farrell and levied upon property then located in a car upon the tracks of the C. & E. I. Railroad, as the property of E. F. O’Farrell. After this attachment was levied appellant, Winifred 0 ’Farrell, the wife of E. F. 0 ’Farrell, filed an interpleader claiming the property, and that she was entitled to its possession. Under the statute, the cause of action was docketed as Winifred O’Farrell against Malinda Vickrage, and the sole issue raised by the interpleader was the question as to whether or not the property levied on under the attachment writ was the property of Winifred 0 ’Farrell, interpleader, or that of E. F. O’Farrell, defendant in the attachment writ. There have been three trials, the first two resulting in the verdicts that a portion of the property in the car belonged to the interpleader; these verdicts were set aside. Upon the third trial the jury returned a verdict finding the issue for the defendant. Upon that- verdict a judgment was rendered against appellant for costs, from which she prosecutes this appeal.

Appellant insists that the judgment should be reversed because the court erred in the admission and rejection of evidence upon the trial, that the court erred in its instructions to the jury, and that the verdict was contrary to the evidence.

The record discloses that a number of years ago Winifred O’Farrell inherited from her father’s estate some $350; that fifty dollars of this fund was used for the purpose of purchasing a piece of property in Pana, Illinois; that out of the balance of the money certain personal property was bought by E. F. O’Farrell, as agent of Winifred 0 ’Farrell, and paid for out of the money she inherited. The first purchase of property in this manner was a few household goods, several cows and pigs. When the property was purchased in Pana, a bond for the deed was taken in the name of Winifred 0 ’Farrell; the title was then in one George D. Chafee; the title was afterwards transferred to Winifred O’Farrell and a mortgage executed upon the property to Chafee. After this, improvements were made upon the property; these improvements were paid for by E. F. O’Farrell, husband of Winifred O’Farrell; that for a number of years these parties lived in Pana; the cows were milked and the milk sold, pigs were raised and sold and others purchased, and that' from the accumulations from these funds property was bought for the household use. After these conditions had continued for some time, E. F. O’Farrell became the agent of Malinda Vickrage, plaintiff in the judgment suit and appellee • herein; that while he was such agent he defrauded Malinda Vickrage out of considerable money out of which trouble arose between them and he was prosecuted for embezzlement. The transactions between E. F. O’Farrell and Malinda Vickrage grew out of the handling of certain property by O’Farrell for Malinda Vickrage. While it was necessary for Malinda Vickrage, appellee, to show that E. F. O’Farrell was indebted to her in order to maintain her attachment writ, it was admitted by appellant at the commencement of the trial of the rights of property, and the admission entered in the record, that E. F. O’Farrell was indebted to Malinda Vickrage and that she was entitled to maintain her attachment writ as against him; these admissions obviated any further showing that E. F. O’Farrell was indebted to Malinda Vickrage. Over objections of the interpleader, the court permitted defendant, Malinda Vickrage, to go into detail and disclose upon the trial all of the transactions between her and E. F. O’Farrell. All of the transactions had between Malinda Vickrage and E. F. O’Farrell were had without any knowledge or information thereof on the part of Winifred 0 ’Farrell; she was not present at any of the transactions and had nothing whatever to do with them and as to her the evidence of all these transactions, their nature and character, as to whether they were legitimate or not, was wholly immaterial and it was error in the trial court to admit proof of these matters upon the trial. They could have had no other effect than to be prejudicial to appellant. The only question raised by this interpleader was the title to this property and no other issue should have been tried. Springer v. Bigford, 160 Ill. 498.

The court also pérmitted as cross examination of one E. P. Viekrage a conversation to be recited which was had between Viekrage and E. F. O’Farrell at Davenport, Iowa, which it was not even contended was in the presence of appellant. This matter was not proper cross-examination and to permit the conversation to be detailed was error. This conversation grew out of and related wholly to transactions between O’Farrell and appellee herein.

The property bought in the city of Pana when appellant and her husband first went to Pana was sold and considerable profit made thereon and the trial court held that whatever profit was made in that transaction belonged to and was the property of E. F. O’Farrell. We presume this was upon the theory that O’Farrell was the head of the family and acted as such and attended to the affairs of the family and that it was through his efforts the accumulations were had, but the entire transaction of purchasing the property and making the improvements thereon was done and paid for long before the transactions between E. F. O’Farrell and Malinda Vickrage took place and prior to the time of his indebtedness to her. At that time he had the right to do as he sought fit with property, either his own or his wife’s, so far as it related to any rights of Malinda Vickrage therein.

The first instruction given on behalf of defendant herein is erroneous as appellant’s property could in no manner be subject to the debts of E. F. O’Farrell unless she permitted it to be used by him in such manner that credit was thereby given to him by Malinda Vickrage, and there is no contention of any such conditions in this case.

The third instruction given on behalf of appellee is erroneous for the same reasons stated regarding instruction number one. The twelfth instruction informed the jury that if the goods had the name of E. F. O’Farrell thereon the presumption was that they were Ms goods. TMs does not state a correct principle of law, unless the goods were so tagged by and with the consent of appellant, and there is no evidence or contention that such was the fact.

Upon the contention that the verdict and judgment are contrary to the evidence, the record discloses beyond controversy that considerable of the property belonged to and was the property of appellant and there can be no just claim that such property can be subject to the debts of her husband. The verdict is clearly against the manifest weight of the evidence, and it was error to render a judgment against her on this verdict.

For the reasons herein set forth, the judgment is reversed and the cause remanded.

Reversed and remanded.