author: Baker, P. J.

text:
    David G. Mitchell v. Charles P. Willard & Company.

      Action to Recover for Machinery Sold — Evidence—Erroneous Instructions.

    In an action to recover the price of a bo iler, engine and inspirator attachment, it is held: That it was error to admit in evidence the shipping bills of the carrier to show the condition of the machinery when shipped ; that certain instructions were erroneous, there being no evidence upon which to base them; that an instruction assuming that the defendant kept men in his employ an unreasonable length of time was erroneous, the fact assumed being for the jury; and that an instruction touching the leakage of the boiler was erroneous in view of the evidence.

      [Opinion filed December 11, 1886.]
    In error to the Circuit Court of Winnebago County; the Hon. William Brown, Judge, presiding.
    Mr. J. C. Garver, for plaintiff in error.
    Mr. M. Brazee, for defendant in error.
   Baker, P. J.

This was assumpsit prosecuted by Chas. P. Willard & Company, defendants in error, against David G. Mitchell, plaintiff in error, to recover the price of a boiler, engine and inspirator attachment. The general issue was filed and with it notice of special matter of defense, to the effect that the boiler and engine were warranted to be first class in every respect; that there was a breach of this warranty and consequent damage, and that the boiler and engine were worth less than the contract price; and further that by the terms of the agreement they were to have been delivered in ten days from the date of the contract, February 4, 1883, and were not delivered before March 16,1883, whereby, it was claimed, the plaintiff in error was damnified as stated in the notice.

There was a jury trial, and a verdict and judgment in favor of defendants in error for almost the full amount of their claim.

The evidence is conflicting; and it is not necessary to discuss it.

Several errors were committed during the progress of the trial that require a reversal of the judgment. It was error to-admit in evidence, over the objections of plaintiff in error, the shipping bills of the engine and boiler given by the Chicago and Northwestern Railway Company for the purpose of showing the machinery was in good order and condition when shipped at Chicago. The statements in these bills of lading were the statements of the agents of the railway company, and not the statements of plaintiff in error, or of any one authorized to speak for him. These statements might have been proper testimony if the litigation had been against such company; but they were not competent evidence against plaintiff in error.

The first, third and fourth instructions for defendants in error were erroneous. There was no evidence before the jury tending to show that any injury was done or Occasioned to either the boiler or engine while in course of transportation or after their shipment from Chicago, or arrival at Rockford. As disclosed by the testimony, the contention of plaintiff in error was, that the boiler and engine were not properly made and constructed, and were not first class articles; and the contention of defendants in error was, that they were properly made and constructed, and first class in every respect. The instructions under consideration told the jury that defendants in error were not responsible for imperfections or injuries caused or occasioned by transportation from Chicago to Rockford, or in unloading the boiler and engine, or in placing them in the place of business of the plaintiff in error. There was' no evidence to base these three instructions of the court upon, and they called the attention of the jury from the real to a fictitious issue, and intimated to them a defense not suggested by the proofs. See Grim v. Murphy, 110 Ill. 271. The effect of those instructions was all the more injurious when taken and considered in connection with the admission in evidence of the shipping bills, and the reference in one or more of the instructions to the statements made in these bills that the articles shipped were in good order.”

The sixth instruction was also objectionable. It assumed that the plaintiff in error hired and retained men in his employ for an unnecessary and unreasonable length of time. The question whether or not such was the fact should have been left to the jury to determine.

The seventh instruction was as follows:

“ Although the jury believe from the evidence that the boiler in question when it was first heated up, sweat and leaked some water and steam to some extent, still if the j ary believe from the evidence that boilers of first class quality and make usually leak steam and water when first heated up, and they afterward become tight and proper for use, you are instructed that the said fact of sweating and leaking is not sufficient of itself to show that the boiler in question was not a first class boiler for the purposes for which it was intended and purchased.”

The evidence of the plaintiff in error tended to prove not only that the boiler leaked very badly when it was first put up and for a considerable length of time, and that he expended money in making repairs and curing defects, and was thereby delayed in his business, but also that it had always leaked since it was first put in place, and continued to leak down to the time of the trial, a period of more than two years. The evidence of defendants in error tended to prove that boilers, even first class quality and make, most usually leak, to some extent, at first firing, and for a few days. In the light of the evidence it would seem this seventh instruction was inaccurate, erroneous and calculated to mislead. This boiler may have leaked much more than first class boilers ever leak, and the leaking instead of being a mere temporary matter of a few days, may have continued for years; and yet the jury would understand, from the instructions, that they would not regard such fact of leaking as sufficient to show that the boiler was not a first class boiler.

The judgment is reversed and the cause remanded.

lieversed and remanded.


source: Caselaw Access Project

author: Welch J.

license: Public Domain

text:
    Henry Hellman v. August Schiffer and Lorenz Reitz, Sheriff.

      Judgment and Attachment Liens — Priority—Judgments at Same Term —Right to pro rate under Secs. 1 and 13, Ch. 77, R. S. — Amount Due— Judicial Sales — Caveat Emptor.
    1. Under Sees. 1 and 13, Ch. 77, R. S., property on which an execution has been levied must be sold for the benefit of all executions issued upon judgments rendered at the same term, and the proceeds of such sale must be divided upon the several executions pro rata.

      2. In the case presented, it is held: That the order to pro rate was properly based upon the balance due on appellant’s judgment when the real estate was sold, after deducting the amount realized on said judgment by a • previous sale of personal property; that the court properly refused to allow proof that part of the property so sold as personalty has since been taken as realty, the rule caveat emptor being applicable; and that certain intervening attachment liens did not cut off the last judgment from the right to pro rate with that of appellant.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Will County; the Hon. Celarles Blahchard, Judge, presiding.
    Statement of the case by Welch, J. On May 25th at the, regular May term of the Will County Circuit Court, Henry Hellman recovered a judgment against August Schiffer for the sum of §7,203. At the September term of said court, Hell-, man filed his sworn petition and asked for a rule on the Sheriff to issue to him a certificate of purchase to a certain tract of 26.32 acres of land purchased by him under a sale made by the Sheriff under his execution, issued on said judgment. The land was purchased at the sum of §1,965, which sum he requested the Sheriff to apply on his judgment and execution, which the Sheriff refused to do, on the ground that other liens were claimed on the real estate sold and its proceeds. The reply of the Sheriff to the petition of appellant states : “The following is a statement of executions now in my possession also amount realized by sale of personal property and real estate belonging to the defendant, August Sehiffer :
    Henry Hellman v. August Schiffer, damages $7,203 00
    Satisfied-by sale of personal property 5,117 46
    Balance due $2,085 54
    Herman Badenhoop v. August Sehiffer, damages $1,458 52 Otto Butz “ “ “ “" 2,285 00
    The said Butz execution returned by plaintiff’s order unsatisfied.”

      The attachment writs on which levy-was made and certificates filed in Recorder’s office, are: ;
    Sophia Keursten v. August Schiffer, claims $1,439 84
    Gray, Burt and Kingman v. August Schiffer, claims 294 42
    Henry Brown v. August Schiffer, claims 1,206 66
    Total on attachment $2,940 92
    Amount realized from sale of real estate on September .16,1885. Paid by Henry Oonrad $ 151 00
    Bid by Henry Heilman 1,965 00
    Total ' $2,116 00
    The said Henry Heilman claims that the amount of his bid shall be credited to him on his execution, and the said Badenhbóp claims a pro rata share of the proceeds and I desire the advice and order of the court in the premises.
    Order of court finds :
    That on May 25, 1885, at the May term of the Will County Circuit Court, petitioner, Henry Heilman, recovered a judgment against August Schiffer for $7,203 and costs. That execution was issued thereon and delivered to the Sheriff on May 25, 1885, and said petitioner realized by sale of personal property, $5,117.46. That by virtue of said execution said Sheriff sold in due form of law, on September 16,1885, to plaintiff, in execution, for the sum of $1,965, the real estate described as follows:
    26.32 acres (giving full description), all in Will County, Illinois. And to one Henry Conrad for $151, certain other real estate, which sum of $151 is now in Sheriff’s hands. That at divers times, to wit: On May 30, 1885 ; on June 3, 1885; on June 4, 1885, and on June 5, 1885, certificates of levy against said August Schiffer and upon the real estate thus sold, were filed by said Sheriff and recorded in the Recorder’s office of Will County. That on June 30, 1885, suit was commenced and process issued out of the Will County Circuit Court against said August Schiffer for claims against him as school treasurer of the town of Monee in said Will County. That on June 15, 1885, Herman Badenhoop recov-. ered a judgment against August Schiffer for $1,458.52 and costs. That an execution was issued-thereon and delivered to the Sheriff on June 15, 1885. Therefore, the court finds that the said Herman Badenhoop is entitled to a pro rata share with the said Henry Heilman upon the money made upon the sale of said real estate. That the amount due said Henry Heilman at the time of -the sale of real estate is $2,085.54; and the amount due Herman Badenhoop is $1,458.52; and that the amount for distribution after payment of costs is $2,075.41. That the pro rata share of Heilman is $1,221.43, ' and of Badenhoop is $853.98.
    It is therefore ordered that upon said Heilman paying to the Sheriff the sum of $853.98 to be applied on said Baden-hoop execution, that said Sheriff deliver to said Heilman a certificate of purchase in pursuance of the sale to him in due form of law.
    Petitioner excepts and prays an appeal, which was granted.
    Various errors are assigned. The principal errors are: The court erred in not finding that appellant had a prior lien on the real estate sold. The court erred in refusing to direct that the whole proceeds of the real estate should be applied upon his j udgment and the execution thereon, upon which the sale was made. The pro rata order of distribution made by the court, is contrary to law. That no portion of the proceeds should have been applied on Herman Badenhoop’s judgment.
    Mr. A. O. Marshall, for appellant.
    Messrs. John T. Donahoe and Haley & O’Donnell, for appellees.
    Messrs. R. E. Barber and J. B. Fithian, for attachment creditors.
   Welch J.

The question presented for consideration in this case has not, as far as we have been able to ascertain, been directly presented or passed upon by the Supreme Court. It involves the proper construction and legal effect of Secs. 1 and 13 of Chap. 77, Revised Statutes. Sec. 1 provides: “ That a judgment of a court of record shall he a lien on the real estate of the person against whom it is obtained, situated within the county for which the court is held, from the time the same is rendered or revised, for the period of seven years, and no longer. Provided, that there shall be no priority of the lien of one judgment over that of another, rendered at the same term of court or on the same day in vacation.” And Sec. 13 of Chap. 77, supra: “ When the lien of several judgments is concurrent, by reason of the same having been rendered at the same term of court, or on the same day in vacation, and execution issued upon any one of such judgments is levied upon property subject to such lien, the property so levied upon shall be sold for the benefit of all executions issued upon such judgments, and delivered to the same officer or any of his deputies before sale. And the proceeds of such sale shall be divided upon the several executions pro rata, according to their several amounts.”

These two sections are in perfect harmony with each other. Although it is stated in the body of Sec. 1 that the lien is from the date the judgment is rendered, the right to the exclusive benefit of this lien is qualified by the proviso: That there shall be no priority of the lien of one judgment over that of another rendered at the same team of court.” The proviso qualifies the body of the section. Boon v. Juliet, 1 Scam. 258.

There is no question made that the facts'as found by the court are not sustained by the proof. The objection is based on a claimed error in the application of the law to the facts.

The court finds : That oaa May 25,1885, appellant recovered his judgment against August .Schiffea- for $7,203 and costs, and caused execution to issue thereon, and placed same in the hands of the Sheriff on same day, and that he had realized by sale of personal property, $5,117.46. That by virtue of said execution said Sheriff sold in due form of law, on September 16, 1885, to plaintiff in execution, for the sum of $1,965, certain real estate. And to Henry Conrad for $151 certain other real estate, which sum of $151 was in Sheriff’s hands. That at the same term, to-wit, June 15, 1885, Herman Badenhoop recovered a judgment against August Schiffer for the sum of §1,458.52 and costs. That an execution was issued thereon and delivered to the Sheriff on the 15th day of June, 1885. Applying the law, supra, to the facts of the case, Badenhoop recovered his judgment at the same term, caused his execution to issue thereon and placed it in the hands of the Sheriff. The execution of Heilman being levied upon the real estate, “The property so levied upon must be sold for the benefit of all executions issued upon the judgments rendered at the same term, and the proceeds of such sale shall be divided upon the several executions pro rata according to their amounts.” Ita lex set'ipta est. It is, however, insisted that the order to pro rate should have been based upon the amount of appellant’s judgment, and that no deduction should have been made for amount realized on personal property.

The time when a lien commences on personal property, as declared in Sec. 9, Chapter 77, supra, “Ho execution shall bind the goods and chattels of the person against whom it is issued, until it is delivered to the Sheriff, or other proper officer, to be executed.” Sec. 51, Chapter supra, provides if the goods and chattels sold on execution ha,ve been attached or seized on execution by another creditor, the proceeds of the sale shall be applied to the discharge of the judgments in the order in which the respective writs of attachment or executions became a lien, or are by law entitled to share. Baden-hoop, by virtue' of his execution, acquired no lien to share in the proceeds of the sale of the personal property in this case, as it did not amount to a sum sufficient to pay off the prior lien of appellant. Appellant having sold the personal property, and by such sale having received the full benefit of his execution lien thereon, can not now complain that he should be required to pro rate with Badenhoop, in accordance with the amount due him, at the time of such sale of the real estate. Could it be claimed that he had the right to sell real estate for the full amount of his judgment, and thus cut off the liens of the attaching creditors? Manifestly not. Or could it be claimed that he had the right even to sell for the balance due and claim a pro rata, on the whole amount of his judgment? His lien upon the real estate created by his judgment had been extinguished to the extent of the amount realized from the sale of the personal property.

And his lien at the time of the sale was for the balance due at that time on the judgment, and as to that balance, Baden-hoop was entitled to his fro rata share.

It is also insisted by counsel for appellant that the court erred in not allowing him to prove that the amount of $1,400 charged to him as the avails of personal property was for a bid made by him for a grain warehouse building struck off as personal property, and that the building had been taken from _ his possession as real estate covered by prior liens. Our answer to this objection is that this was a judicial sale, and that the rule cmeat emftor applies to all such sales. England v. Clark, 4 Scam. 486; Misner v. Eronger, 4 Gilm. 69.

It is further insisted by counsel for appellant that under the law the intervening liens cut Badenhoop off from sharing in the sales of the real estate made on Heilman’s execution, and that the court should have ordered the entire amount applied to his execution. The lien of Heilman was prior to that of the intervening liens. Their liens were subordinate to his. Under Secs. 1 and 13, Chap. 77, supra, he had no priority over Badenhoop to the extent of his lien. We are of the. opinion that the order made in this case is in perfect harmony with the law. And if, as claimed by counsel in this case, it works great hardship and injustice to the appellant, such arguments would be proper and right to the law-making power in this State. Our duty is to administer the law as we find it.

If the law is oppressive or unjust in any of its provisions, a strict enforcement thereof will .the more speedily result in its change. The order made by the Circuit Court in this case is affirmed.

Order affirmed.


author: Baker. P. J.

text:
    Julian P. Jones, Administrator, etc., v. Franklin C. Lander et. al.

      Limitation Act of 1872 — Sec. 11, Prospective in Its Operation — Trust Leeds and Mortgages, within Statute.

    1. Sac. 11 of the Limitation Act of 1872, being prospective only in its operation, does not apply to a trust deed executed and delivered prior to July 1, 1872, when that act took effect.
    2. It is the settled law- of this State that mortgages and trust deeds are within the Statute of Limitations, and are barred thereby at the same time-as the debts which they secure.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Winnebago county; the Hon. Charles V. Eustace, Judge, presiding.
    Mr. George M. Blake, for appellant.
    This note and trust deed were dated, made and delivered prior to the passage and taking effect of the Limitation Act of 1872, and so are not within its scope and purview.
    Courts will not give a- statute of limitations a retrospective operation if they can possibly avoid it. Betts v.Bond, Breese, 287; People v. Thatcher, 95 Ill. 109; Conway v. Cable, 37 Ill. 82; Knight v. Begole, 56 Ill. 122; Hatcher v. T., W. & W. R. R. Co., 62 Ill. 477 ; McHaney v. Trustees of Schools, 68 Ill. 140.
    Mr. A. H. Frost, for appellees.
    If there had been a statute of limitations as to trust deeds in force at the time of the enactment of the law of 1872“ any rights that had accrued would have been saved by Sec. 24, and would not have come under the operation of Sec. 11. The saving clause (Sec. 24) does not apply to any cause of action, accrued or not, that was not affected by the repeal of any limitation law under the enactment of 1872. Gridley v. Barnes, 103 Ill. 211.

      There was no statute of limitations prior to the passage of the act of 1872, directly affecting trust deeds. Sec. 11 is a new section, not the revision of an old one, and the saving clause of the statute applies to accrued causes of action that would have been affected by some revised section of the limitation law but for the saving clause, and does not apply to such sections of the act as create new rules of limitation. Gridley v. Barnes, 103 Ill. 211.
    No right, liability or cause of action within the intendment of Sec. 24 had arisen or accrued in this case at the time of the passage of the Act of 1872, so that this case is excepted from the provisions of Sec. 24. The case of Means v. Harrison, 114 Ill. 248, refers solely to promissory notes, and does not relate to trust deeds and mortgages.
   Baker. P. J.

On the 3d day of July, 1871, John F. Lander, now deceased, made to the Rockford Insurance Company his promissory note for §5,000, due in five ye irs from that date, bearing ten per cent, interest, payable semi-annually and containing a clause to the effect that if the interest was not paid for thirty days after due, then the note was to be due and payable. To secure this note he executed a trust deed of the same date on real estate, to one R. P. Lane as trustee, and this trust deed «contained a provision that if default was made in the payment of the said moneys or interest at or before the time specified for such payment, then and in such case the trustee was authorized to sell and close up the trust. The first and second semi-annual installments of interest were promptly paid, but the third installment, due January 3, 1873, was not paid until the 13th day of March, 1873. Thereafter the interest was paid more or less promptly, to January 3, 1883.

In 1872 the note and trust deed'were sold, transferred and resigned for a. valuable consideration, to the estate of one Robert M. Brantingliam, deceased. In 1874 John F. Lander died, leaving his only son and child, Franklin C. Lander, one of the appellees herein, as his residuary legatee and devisee; by virtue xyhereof said Franklin C. Lander became and was possessed of the mortgaged premises, or of the equity of redemption therein.

On the 28th day of September, 1885, the appellant, Julian P. Jones, as administrator de bonis non mm testamento annexo of the estate of Robert M. Erantingliam, deceased, filed this bill in the Winnebago Circuit Court for the purpose of foreclosing the above mentioned trust deed, and from the bill the foregoing facts appear. The court sustained a demurrer to the bill, and dismissed it for want of equity at the cost of appellant.

The action of the Circuit Court was based upon the theory that by the failure Of the maker of the note and trust deed to pay the installment of interest that fell due on the third of January, 1873,- until more than thirty days after it was due, a right to foreclose or make sale, accrued, and that as the bill was not filed until after the expiration of more than ten years from the termination of such thirty days, the right to foreclose was barred by Sec. 11 of the Limitation Act of April 4, 1872, which provides that “no person shall 'commence an action or make a sale to foreclose any mortgage or deed of trust in the nature of a mortgage, unless within ten years after the right of action or right to make such sale accrues.”

The ruling of the court in sustaining the demurrer and rendering a decree dismissing the bill was erroneous. *

In Means v. Harrison, 114 Ill. 248, it was held that the Limitation Act of 1872 had no application to a promissory note given in January, 1872, and due two years after the date thereof, but that such note was governed by the sixteen years limitation established, by the act of the 5th of November, 1849, which was in force when the note was executed.

In McMillan v. McCormick, 117 Ill. 79, it was held that under the Limitation Law of 1849, and under the Statute of Limitation in force prior thereto, it was the settled law of this State that mortgages and trust deeds were within the Statute of Limitations and barred thereby; that the debt was the principal thing and the mortgage or deed of trust a mere incident to the debt; that when the principal thing was named in the statute, that which was incident to it was covered by .the statute "by. necessary implication, although not expressed therein ; and that hence, when the debt was barred in sixteen years by the law of 1849, it was vacant and the mortgage or trust deed- securing it was also, by the same words, barred in that time. And the conclusion was reached that Sec. 11 of the Limitation Act of 1872 was prospective only in its operation, and did not apply to mortgages or deeds of trust executed and delivered prior to July 1,1872, the date that act went in force. The case of McMillan v. McCormick is exactly in point, and decisive of the matter now under consideration. It is wholly unnecessary to repeat the" course of reasoning by which the conclusions in Means v. Harrison and McMillan v. McCormick were reached; suffice it to say that in the latter case it was expressly held that the matter of -the construction to be given Sec."ll of 'the Statute of 1872 was riot governed by Hyman v. Bayne, 83 Ill. 256, and Gridley v. Barnes, 103 Ill. 216, as the principle involved was not analogous to that involved in those cases.

It follows from what we have said that the decree of the; Circuit Court must be reversed and the cause remanded, with; instructions to that court to overrule the demurrer to the bill; of complaint of appellant.

Reversed and rerrmndeó,L


author: Lacey, J.

text:
    George W. McMahill v. Martin Humes.

      Chattel Mortgages — Sale to Mortgagee — Validity of — Change of Possession — Sufficiency of — Loan—Practice—Trial without Jury — Finding of Court — How far Conclusive.

    ,1. After verbal sale and delivery of chattel property .or after bona fide delivery of mortgaged chattels to the mortgagee in satisfaction of the debt, the vendee or mortgagee may temporarily loan the same to the vendor or mortgagor or employ the latter to use the chattels in the service of the vendee without invalidating his title. ‘ '

      ' 2. Where the mortgagor merely hitches horses to the mortgagee’s rack for a half hour and then borrows them, the possession of the mortgagee is not long enough to apprise all parties of the change of ownership.
    3. Where a jury is waived, the finding of the court, like the verdict of the jury, is conclusive, unless it is manifestly against the weight of evidence.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Warren County; the Hon. A. A. Smith, Judge, presiding.
    , In connection with this case see the following ease of Eagle v. Rohrheimer,
    Messrs. Stewart & Stewart, for appellant.
    There is no evidence whatever that McMahill intended to defraud any of Willard’s creditors, and having bought and paid for the horses, McMahill had a right to loan them to Willard to finish gathering his rent corn, and by so doing he did not defraud Humes, or induce him to part with any of his .property, because Humes testifies that he took his mortgage to secure a store bill, and a note he bought of Ostrander, and that he had no intention of taking the chattel mortgage when he bought the note of Ostrander. Brown v. Riley, 22 Ill. 46; Wright v. Grover, 27 Ill. 426; Neece v. Haley, 23 Ill. 416; Funk v. Staats, 24 Ill. 632, 645; Cunningham v. Hamilton, 25 Ill. 228; Reynolds v. Patterson, 4 Ill. App. 183.
    The fact that McMahill loaned the horses to Willard after he had bought them is not a fraud per se, as was urged in the Circuit Court. Cunningham v. Hamilton, 25 Ill. 231; Reynolds v. Patterson, 4 Ill. App. 183.
    Messrs. Grier & Dryden, for appellee.
    Reed v. Eames, 19 Ill. 594, announces a principle which has never been departed from since : that where a mortgage, like the one in the case at bar, contains a stipulation that the property shall remain with the mortgagor until default, that becomes the agreement between the parties placed upon record, thereby giving notice to all of the kind of tenure by which the possession is held; that upon default by maturity or otherwise, the title and right of possession become absolute in the mortgagee and he is bound to take possession, and that a failure to do so upon default is a fraud, because the real ownership being in one person and the ostensible ownership in another, gives the latter a false credit. And Justice Breese adds that while some courts hold such facts open to explanation, the safer and better rule is that it constitutes fraudar se and incapable of explanation; conclusive as against creditors, subsequent purchasers, etc.
    • This doctrine has been affirmed and" re-affirmed, notably in Thompson v. Yeck, 31 Ill. 73; Cass v. Perkins, 23 Ill. 382; Reese v. Mitchell, 41 Ill. 365; Lemen v. Robinson, 59 Ill. 115; Arnold v. Stock, 81 Ill. 407; Ticknor v. McClelland, 84 Ill. 471,
    We re-affirm that there was no delivery of possession by Willard to McMahill such as to preclude Humes’ rights, because to constitute such change of possession it must be open, visible, public and manifested by such outward signs as render it evident that the possession of the owner has wholly ceased. Bump, Fraudulent Con., 114.
    The delivery of possession must be accompanied with such unmistakable acts of control and ownership as a prudent, dona fide purchaser would do in the exercise of his rights, so that all persons may have notice that he owns and has possession of the property.
    The length of time such possession should continue has been clearly pointed out by the Supreme Court; it must be long enough to apprise all parties of the change of ownership. Cunningham v. Hamilton, 25 Ill. 228.
   Lacey, J.

This was an action in replevin commenced before a Justice to recover the possession of the mare and horse in controversy, commenced by appellee against appellant, and judgment being rendered before the Justice for the appellant, the appellee appealed to the Circuit Court, where the case was tried by the court, a jury being waived, and the court found for him and judgment against appellee for costs, and he appeals to this court.

■ It appears from the evidence that .one F. M. Willard was the owner of the horses, and on December 13, 1882, mortgaged them to appellant to secure a note for $2.50, due in one year from date. A day or two before the note and mortgage became due Willard drove the 'horses over to the- farm of appellant and there was an attempted adjustment of the debt and sale of the team to appellant, and the note and mortgage was delivered up. But the team remaining in the possession of Willard, he, on the 25tli. of December, 1883, re-mortgaged them to appellee to secure $190. Afterward in January, 1884, appellant replevied the-'horses from Willard, when thereafter, and after demand, appellee replevied them from appellant"; claiming under his mortgage, and that is this suit.

The only point in dispute is whether 'the attempted sale from Willard to appellant was perfected by actual delivery of the possession of the horses to appellant so as to make a perfect and complete sale to him as against subsequent purchasers and incumbrancers. This is the only controlling question here.

There are only two witnesses .to the transaction — Willard and appellant. After an agreement between Willard and appellant that the horses were to be taken by appellant in discharge of the note and mortgage and they were to be delivered to appellant at his house, appellant testifies as to what took place at the time of the attempted delivery as follows; “ Willard came over to my place a day or two. before my note and mortgage was due and said he had brought over the team to deliver it up and get the note and mortgage. I got the note and mortgage and went out with him to where the team was tied to my hitching rack and I took hold of the halters and looked into their mouths, asked Willard how old they were and asked him about a place on the mare where the skin was broken. I then gave Willard the note and mortgage as he said he would not give up the horses unless I gave: up all the papers; so I gave them to.him. I asked him what he was doing; he said he was gathering the rent corn, due for land which I had rented to him and he wanted to borrow the team to finish it, so I loaned him the team to gather the said rent corn and told him where to put it. He said it would take , three or four days to finish gathering the corn and he took the team and went back. He was at my place about half an hour. He refused to return the team arid I had to replevy them.”

• Willard testified on the subject of delivery: “When I went to settle the mortgage up I took the team over to MeMahill’s ; hitched them up to the hitching rack and went to his house and told him I brought the horses Over to settle up this mortgage. I wanted the use of the team a year arid McMahill said -he did not know about that. He gave me the note and mortgage and asked me some - questions about them, as to their rige and how the mare got some skiri rubbed off her. He also asked what I was doing; told him I was gathering the rent corn. He told me to go back and finish gathering it and I went back and went to work.” This was all the evidence on the subject of the delivery of the hors.es b.y Willard to McMahill. The appellant relies for reversal on the authority of Brown v. Riley, 22 Ill. 46.; Wright, v. Grover, 27 Ill, 430 Neece v. Haley, 23 Ill. 417; Funk v. Staats, 24 Ill. 645 ; Cunningham v. Hamilton, 25 Ill. 231; Reynolds v. Patterson, 4 Ill. App. 183.

There can be no question that, after verbal sale and delivery óf chattel property, or after bona fide delivery of mortgaged chattels to the mortgagee in satisfaction of the debt, the vendee or mortgagee may temporarily loan the same to the vendor or mortgagor, or employ the latter to use the chattels in the service of the vendee without invalidating the title. But in this case it is a question whether the actual possession required by law was ever taken by appellant before the horses were re-mortgaged to appellee, and the key note on which the decision of this case rests is found in Cunningham v. Hamilton, 25 Ill. 228, where the court says “ the possession of the mortgagee must be long enough to apprise all parties of the change of ownership.” That can not be said to have been done in this case. Because the horses were hitched at appellant’s rack for half an hour it can not, with reason, be claimed that actual possession was taken by him in the manner the law requires.

There were abundant grounds in the evidence to justify the court in finding that the delivery of possession was not long enough to apprise all parties of the change of ownership.”'

In fact there was no delivery of possession at all either sym- ' bolieal or otherwise. The evidence also, we think, fully justified the court in finding that appellee was an innocent purchaser without negligence. But when it is considered that the finding of a court, like the verdict of a jury, must be conclusive, unless we can see that such finding is manifestly against the weight of the evidence, it will be seen that there can be but slight grounds upon which a reversal could be based.

We therefore find there is no error in the record, and order-that the judgment be affirmed.

Judgment affirmed.


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    James K. Eagle and Geo. E. Letourneau v. Moses Rohrheimer.

      Chattel Mortgages — Sale to Mortgagee — Validity of — Change of possession — Loan—Replevin—Evidence—Vendor can not Impeach Title of Vendee.

    1. After a valid sale and delivery of chattel property, or after a Iona fide delivery of mortgaged chattels to the mortgagee in satisfaction of the debt and possession taken by the mortgagee, the vendee or mortgagee may temporarily loan such chattels to the vendor or mortgagor, or employ the latter to use them in his service without invalidating his title. But in order to make such transfer of property valid as against third parties there must be a substantial change of possession of such character or duration as would reasonably notify other persons that the property was transferred and the ownership changed.
    2. In an action of replevin to recover certain personalty as the property of the mortgagor thereof, it is held: That, under the evidence, there was no apparent change of possession of a horse, for which the mortgagor had given a bill of sale to the mortgagee; and that evidence of statements made by the former as to the date of the bill of sale was properly excluded, as the vendor can not be heard after sale to impeach the title of the vendee.

      [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Kankakee County; the Hon. Alfred Sample, Judge, presiding.
    In connection with this case see the preceding case of McMahill v. Humes.
    Mr. H. K. Wheeler, for appellants.
    Messrs. Lake & Potter, for appellee.
   Baker, P. J.

This was a replevin instituted by Bohr* heimer against James K. Eagle and George B. Letonrneau for the recovery of certain personal property that had been levied on by Letourneau, Sheriff of Kankakee County, by virtue of an execution issued on a judgment in the Circuit Court of said county for §1,510 and costs, in favor of Eagle, and against James H. Craddock. Pleas were filed that justified the taking under said execution, and claimed that the property belonged at the time of the levy to Craddock. The result of a jury trial was a verdict and judgment in favor of Bohrheimer for all of the property in dispute.

A horse, buggy, cutter and set of single harness, constituting a part of the articles that were in controversy, had belonged to Craddock, and he had given to Bohzheimer a chattel mortgage upon them to secure a debt that matured January 28,1884.

An absolute bill of sale, bearing the date mentioned, was executed by the mortgagor to the mortgagee for the property covered by the mortgage in satisfaction of the debt. The execution was levied on the 14th day of February, 1884.

We are of opinion the evidence does not sufficiently sustain the verdict of the jury upon the question of the ownership of the horse. After a valid sale and delivery of chattel prop-, erty, or after a Iona fide delivery of mortgaged chattels to the mortgagee in satisfaction of the debt and possession taken by the mortgagee, the vendee or mortgagee may temporarily loan such chattels to the vendor or mortgagor, or employ the latter to use them in the service of the vendee or mortgagee, without invalidating the title. But, in order to make such transfer of property valid as against third parties, there must be a substantial change of possession, a change of such character or duration as would reasonably notify other persons the property was transferred and ownership changed.

In this case, after the date of the bill of sale and up to. the time of the levy, the horse was .left in the possession and control of Craddock, the original owner, the same as theretofore. He, and the members of his family and his employes, continued to use it both in their business and for pleasure; and it was fed, watered and attended to by his family and servants. Only five days before the levy he had the four shoes of the horse set, and paid for the work; and at the very time it was levied upon, it was being fed' and watered by his brother. It is true the horse was kept in the barn of Bohrheimer, but then the barn was rented by Craddock, and the horse had been kept there both before and after the date of the bill of sale. Appellee testified that he hired John Coyn to take care of the horse, but according-to the testimony of Coyn, Craddock kept the horse there, .and continued to use him as long as he was there, and.Craddock’s stepson took care of him. It does not appear that appellee ever used the horse, or ever paid anyT thing for its keeping. The decided weight of the evidence is that there was no apparent change of possession, and that third parties could not possibly have been apprised from the surrounding circumstances that there had been ■ a change of Ownership. This was not a case of a mere temporary borrowing by the vendor, but a case of continued possession and use by him.

The ruling of the court in excluding from the jury, evidence of the statements made by Craddock as to the date when the bill of sale was in fact executed, was right; even though it was proposed to show in connection therewith that such statements were made while he was in possession of the property. The law forbids that a vendor should after sale be heard to impeach the title of the vendee. The case of Amick v. Young et al., 69 Ill. 542, we do not regard as an authority in point. The declarations there considered- were not those of a vendor against the interest of his vendee; and besides, the declarations wore those of a person who, at the time they were- made, was in actual possession of the property, exercising full control over it, offering to sell it, and claiming it as his own, and what he said under such circumstances was held to be a part of the res gestee, and therefore.legitimate evidence.

In the present litigation the statements excluded were those Of a person not claiming 'at "the time they were made a present interest in the property under discussion, and were a mere narration of past transactions, and such narration was wholly unconnected with and formed.no part of the transactions themselves, and consequently were not a part of the res gestee.

The court very prbperly modified the 6th instruction for appellants, by eliminating the particular circumstances that was incorporated in it. Appellants claim that it was a strong circumstance,' and that the attention of the jury should have been called to it as one of the badges of fraud. We may remark that it was not a conclusive circumstance, and that- it was no part of the duty of the trial court to make an argument to the jury in behalf- of either party, to the suit and call the special attention of the jurors to particular but inconclusive facts in proof. Such mode of instruction is likely to. mislead the jury, by giving undue importance to the circumstances that may be thus singled out from the bulk of the testimony.

The verdict of the jury improperly awarded the horse to appellee. The motion for a new trial should have prevailed, and it was manifest error to overrule it; for that error the judgment is reversed and the cause remanded.

Reversed and remanded.


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    George Ginders, Administrator, etc., v. Julia M. Ginders, Claimant, etc.

      Administration of Estates — Claim for Services Rendered by Member of Family — Rules—Presumptions—Burden of Proof — Instructions—Evidence — Admissions of Intestate, Admissible — Express and Implied Contracts.

    1. Where persons reside together as members of one family, and one of them renders services to the head of the family, the law does not imply a promise to pay therefor, nor a promise on the part of the one rendering such service to pay for maintenance, the presumption being that both services and maintenance are gratuitous.
    2. Where services are rendered within the family, under the rule of this State there.can be no recovery against the head of such'family unless it appears that (here was an express promise to pay, or that the services were rendered under the expectation of both parties that payment was to be made, the burden of proof being upon the one who seeks to recover for such services.
    3. Both an express and an implied contract can not exist at one and the same time concerning one and the same subject-matter.
    4. In the case presented, in which the daughter-in-law of the deceased seeks to recover from his estate compensation for services rendered as a member of his family, it is held: That certain instructions were erroneous for improperly stating the rule as to the burden of proof and ignoring the circumstances surrounding the claimant, the intestate and her infant children ; that statements made by the intestate relative to leaving the claimant a home were properly admitted; and that, if the services were rendered under an agreement that the intestate would by will or otherwise provide the claimant a home and support upon his death, and he failed to do so, she may recover upon a quantum meruit for the five years not barred by the Statute of Limitations.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Ogle County; the Hon. William Brown, Judge, presiding.
    Mr. N. C. Warner, for appellant.
    In the case of children after they attain majority, or grandchildren, or nephews and nieces who live with a relative or parent as members of his family, without any contract or understanding that he shall pay for their maintenance, the law will not imply a promise to pay on either side. Robinson v. Cushman, 2 Den. 149; Andrews v. Foster, 17 Vt. 556; Fitch v. Peckham, 16 Vt. 150; Guffin v. First Nat. Bank, 74 Ill. 262; Owen v. Parsons, 5 Watts & S. 357, 513; Wier v. Wier, 3 B. Mon. 645; Funk v. Lawson, 12 Ill. App. 229.
    Where parties competent to contract, enter into an arrangement by which one becomes a member of the family of another, under circumstances that forbid the idea of a promise or contract for pecuniary compensation, no action will lie to recover such compensation for services rendered during the existence of such arrangement. Promises are implied in consequence-of the nature of the transaction. And it is only where there is no express promise that the law will sometimes imply one.
    Implied promises only arise where reason and justice dictate that a person should do the thing which the law thus implies he has agreed to do. Ho implied contract will arise to pay for services rendered by, and. between members of the same family. Hall v. Finch, 29 Wis. 278; Andrews v. Foster, 17 Vt. 556; Duffy v. Duffy, 4 Pa. St. 399.
    Transactions of this kind stand upon a different footing from those between persons who are not bound together by family ties. VanKuren v. Saxton, 3 Hun (N. Y.), 547; Wilcox v. Wilcox, 48 Barb. 327.
    The relationship between the parties prepares the mind at once to believe that Henry Hinders was extending to appellee and her children the hospitality and comfort of a home in her widowhood and their orphanage, and was not keeping them for any mercenary consideration, and as they did not pay for board, and were not in the attitude of servants, no presumption will be indulged that appellee then expected pay for services. Fruitt v. Anderson, 12 Ill. App. 421; Myers v. Maicom, 20 Ill. 621.
    Where two parties understand they are mutually receiving and rendering favors with no present design to make them pecuniary charges against each other, no recovery can be had by either. Dunlap v. Allen, 90 Ill. 108; Jared v. Vanvleet, 13 Ill. App. 334. The family relation is itself strong negative proof, and raises a presumption that no payment or compensation was to be made beyond that received by claimant at the time, which can only be overcome by clear and unequivocal proof to the contrary. The evidence-' must be clear, direct and positive that the relation was not a family relation, but was the relation of debtor and creditor, or master and servant. To establish such relation it is evident sonie new arrangement or contract to that effect must be shown. Ho man is made a debtor without his knowledge or consent, or under circumstances where he has no reason to expect that such was his position. 'We find the best considered' authorities hold that an express contract must be shown." Deitrich v. Waldron, 90 Ill. 115; Hall v. Finch, 29 Wis. 286; Hartman’s Appeal, 3 Grant’s Cases, 271; Duffey v. Duffey, 44 Pa. St. 402; Bash v. Bash, 9 Pa. St. 260.
    Mr. J. C. Garver, for appellee.
   Baker, P. J.

This controversy grows out of a claim for $3,000, filed by Julia M. Ginders, appellee, against the estate of Henry Ginders, deceased, for services rendered him in his lifetime.

In 1871 the deceased was living with his wife on his farm in Ogle County, Illinois. They had two children, both sons; the elder, George, had married and moved away some years prior to that time, and the younger, Joseph, was living with his parents. In that year Joseph was married to -appellee, and she immediately made her home on the farm with her husband and his parents. Shortly thereafter the wife of Henry Ginders died, and from that date Joseph and his wife continued to live with said Henry for -some seven years and until the death of Joseph in January, 1878. The latter left surviving him, his widow, the appellee, and two infant daughters, now about thirteen and eleven years of age, respectively. Appellee and her two daughters remained on the farm with -Henry Ginders, the deceased, who w-as father-in-law of the one, and grandfather of the others, and continued to make his house their home, until liis death on the 20th of February, 1885. Joseph left appellee and his children almost wholly, unprovided for, and they seem to have remained with deceased as members of his family. Appellee was an industrious- and thrifty woman, managed the. house and attended to all the necessary and usual household duties, did the cooking for deceased and his hired man, and nursed and took care of the former in his old age and last sickness. There appears to have been an arrangement between appellee and her father-in-law, that she was to have the dairy and poultry products of the farm, and out of their proceeds supply the family groceries, flour and meat excepted, and use the residue for clothing her children and herself.

It further appears that she not only did this, but was able to purchase many articles of household furniture, which she still retains. It was stipulated upon the trial that Henry Ginders died intestate and left as his only heirs at law, his son, the appellant administrator, and his two granddaughters, and that he died seized of unincumbered real estate of the value of 85,000 and of 82,900 in personal property, and that his estate was at the time of his death practically free from debt, unless it be the claim made by appellee is a just debt.

Ordinarily, where one person labors or performs services for another, a presumption of fact arises that the person for whom the labor is done or services performed is to pay the value of. such labor or services. But, where persons are living together as members of one family, and a member of such family renders services to the head of the family, the law does not imply a promise to pay therefor.

And so, on the other hand, there is not, in such case, an implied promise that the member of the family will pay the head of the family for board and maintenance. Within the family the presumption is that both services and maintenance are gratuitous. Such presumptions, however, are mere presumptions of fact and may be rebutted.

Some of the courts have held that within the family relation and between a member and its head, there can, under no circumstances, be a recovery upon an implied contract for work and labor, and that it must be shown that an express contract was actually made. The rule is not held so strictly in this State. Here we understand the doctrine to be, that where services are rendered within the family there can be no recovery against the head of such family, unless it be shown, either that there was an express promise to pay, or that the services were rendered under the expectation of receiving pay therefor on the one side, and under the expectation of paying therefor on the other side. The following authorities sustain this view of the law. Myers v. Malcom, 20 Ill. 621; Freeman v. Freeman, 65 Ill. 106 ; Miller v. Miller, 16 Ill. 296; Morton v, Rainey, 82 Ill. 215; Guffin v. National Bank, 74 Ill. 262; Dunlap v. Allen, 90 Ill. 108.

The fact that the services were rendered for which this claim was made, was not a matter of contention on the trial, but 'the contentions of appellant were, first, that the services were gratuitous, and, second. that they were rendered under a special contract that in consideration of them appellee was to receive the dairy and poultry products of the farm, less the cost of family groceries, and a home and living for herself and chil* dren during the lifetime of the intestate. As appellee was a member of the family of appellant’s intestate when the work and labor was done, the presumption was that they were gratuitous ; and the burden was upon appellee to either prove an express promise to pay or else show that it was the intention of appellee to receive pay, and the intention of the intestate to make payment for the services performed. The jury should have been instructed that appellee had the burden of proving a cause of action against the estate; that this could only be done in one or the other of the two modes above mentioned, and that the mere performance of services by her for the deceased did not make out a case against the estate.

The first instruction given for appellee was “ that the burden of proof is upon the estate or the administrator to prove payment, if any is claimed to have been made.” This was calculated to mislead the jury and induce them to believe that, as the rendition of the services was not a subject of contention, the law stepped in and implied they were to be paid for, and that as in ordinary cases where the services are not disputed, and payment is claimed, the burden is on the defendant.

The second instruction told the jury that if they believed from the evidence that “ there was an express or implied contract, and that the services were rendered by claimant, and have not been paid for, then the claimant is entitled to recover in this action.”

This, also, under the circumstances of the case on trial, was misleading. It did not draw the distinction between the case at bar and ordinary suits for work and labor, and from it the jury might readily conclude that if the services were per. formed and not paid for, then there was an implied promise or contract to pay.

The third instruction was as follows: “ If you believe from the evidence that the claimant did, within five years next preceding the death of Henry Hinders, perform labor and services for said Henry Hinders, at his request, and that no price was fixed or agreed upon, and that the same has not been paid, then the law will imply a promise from said Henry Hinders to pay claimant in this proceeding for such labor and services, what, if anything, the same are reasonably worth.”

This instruction might have been well enough in some cases and as applied to a proper state of circumstances, but as applied to the case in hand it was very clearly vicious and erroneous; it omitted the very important fact that the claimant when she performed the labor was a member of the family of Henry Hinders; and that being a fact in the case, the law does not, from the facts stated in the instruction, imply a promise to pay. Where a member of the family does work for the family at the request of the head of the family, the law will not imply a promise on the part of such head of the family to pay therefor, unless it appears that it was the expectation of both parties, at the time the labor was performed, that it would be paid for. The fourth instruction is similar to the third, and is liable to the same objections. It contains the qualification, “ Hnless it shall appear from all the .evidence that such work and labor were done under a special contract, or as a gift or gratuity ; ” but this did not cure the defects; it left the burden upon appellant'to show by his affirmative evidence that the work was a gratuity, whereas it was a presum'p-. tion that followed from the relations of the "parties that it was' a gratuity, and the burden was upon appellee to rebut such' presumption. . " ^ "

The sixth instruction informed the jury that it was “wholly immaterial what share the little girls of claimants may be entitled'to in the estate of their grandfather, as his heirs.” We think this was erroneous ; it excluded from the jury as wholly" immaterial a circumstance the jury might properly take into consideration.

The circumstances surrounding the intestate, and appellee, and her infant children, the fact the first mentioned had made no will, that he had considerable property, that the daughters of appellee were the prospective and afterward actual heirs to a moiety of his estate, may .all be regarded in connection with the other testimony in determining the intentions and expectations of the parties to the transactions here involved.

We see no valid objection to the ruling of the court admitting in evidence the testimony of Kittlewell, "Letts and Fay in regard to statements made by Henry Hinders with reference to leaving appellee a home, and making provision for her and her children: or to the ruling that permitted Agnow and Kelley to testify to the conversations that occurred between the deceased and appellee, while the former was in his last sickness. In a litigation against an administrator, the admissions of hia intestate are competent evidence against such administrator.

It is true that both express and implied contracts can nob-exist at one and the same time concerning one and the same subject-matter. But this rule, ex m termini, has application only where the subject-matter is the same or where the two contracts cover the same ground as to subject-matter. It is nob legally impossible that it may have been the understand! ing and intention of both appellee and the intestate, that the former should serve as housekeeper for the .latter during his lifetime, and that in consideration thereof he would, at or before his death, provide for her a home, or make provision for her support, and at-the same time there have been an arrangement between them that, in the meanwhile and during the lifetime of intestate, she should have the excess of the dairy and poultry products for clothing herself and children, and for her own use and purposes. Of course, if it should be found as matter of fact that the arrangement was as broad as is contended for by appellant, and that the dairy and poultry products and temporary home and living for appellee and her children covered the ground of compensation for services, then it would not be legally admissible to say there was a different and contract.

If the services of appellee , were rendered under an agreement with the deceased that she would remain with and work for him during his lifetime, and that he would, by will or otherwise, provide her a home and support upon his death, and he did not do so, then appellee may recover of his administrator as upon a quantum meruit; but, the Statute of Limitations being interposed, could only recover for five years next-before presenting her claim, deducting the time that elapsed between the death of intestate and the day fixed by the administrator for the adjustment of claims against the estate. Freeman et al., Admrs., v. Freeman, 65 Ill. 106.

The view we have taken of the case obviates the necessity of considering the motion and cross-motion that were reserved to the hearing.

For the errors in the instructions of the court the judgment is reversed and the cause remanded.'

Reversed a/nd remanded.


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    Ole H. Aarvig, for use of Nels Olson, v. N. H. Kellogg et al.

      Statute of limitations — Justices’ Judgments not within Sec. 15. but within Sec. 10 — “ Other Evidences of Indebtedness ” — Construction of .

    1. A Justice’s judgment is not within Sec. 15. Chap. 83, Starr & C. Ill. Stat., which limits the time within which to bring certain actions to five years.
    2. Such a judgment is included within the words : “ Other evidences of indebtedness in writing,” found in Sec. 16, which limits the time within which to bring the actions therein included to ten years.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Livingston County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. H. H. McDowell and A. C. Norton, for appellant.
    Messrs. MoIlduff & Torance, for appellee.
   Lacey, J.

Olson recovered a judgment before the Justice of the Peace against Ole H. Aarvig, the appellant, for the sum of $75.75, upon which execution was issued January 24, 1879, and was returned “ no property found” by the Constable. A transcript from the judgment was filed in the clerk’s office of the Circuit Court, January 24, 1879, and execution on transcript on the 24th of July, A. D. 1884, and returned October 24, 1884, “no property found.”

Garnishee proceedings were commenced on the judgment from before the Justice of the Peace against appellee by Olson in the name of appellant, to recover the amount of the judgment and costs, May 7, 1885, being six years and five months from the date of the rendition of the judgment. The cause came to the Circuit Court by appeal from the judgment before the Justice. In the Circuit Court appellees and appellant Aarvig, moved to quash the writ and dismiss the suit, which motion was sustained by the Circuit Court, and the suit dismissed on the ground that the judgment before the Justice was barred under Sec. 15 of the Statute of Limitations.

This action by the court was induced by the holding of the Supreme Court in Bemis v. Stanley, 93 Ill. 230, in which it was held that a foreign judgment was barred by Sec. 15 of the Limitation Act in five years’ time. Sec. 15, Limitation Laws of 1872, provides as follows: “Actions on unwritten contracts, express or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damage for the detention or conversion thereof, and all civil actions not otherwise provided for shall be commenced within five years next after the cause of action accrued.” In the above casé of Bemis v. Stanley, the judgment sued on was obtained in the State of Ohio, March 10, 1859, and the suit was commenced in this State August 10, 1877, the judgment being over eighteen years old and barred as well under Sec. 16 of the Limitation Law of 1872, which provides that, “actions on bonds, promissory notes, bills of exchange, written leases, written contracts or other evidences of indebtedness in writing shall be commenced within ten years next after the cause of action accrued.” So we see as to the matter before the Supreme Court the decision was correct under either of the statutes. Another fact we observe, and that is the attention of the court was not called to Sec. 16 at all. However, the Supreme Court may have intended to hold on that point as to foreign judgment, we think, as applied to judgments before Justices of the Peace in this State, Sec. 15 does not apply, but that such judgments must be classed under the head of “other evidence of indebtedness in writing ” contained in said Sec. 16. It is contended by appellee that the words, “ other evidences of indebtedness in writing ” should be held to mean the same character of evidence of indebtedness in writing as those defined by the particular words in the same section, preceding such general words, citing Broom’s Legal Maxims (7th Ed.) 651, and cases cited. In other words, that Sec. 16 can refer only to evidences of indebtedness in writing ’•’ which are voluntarily executed by the parties, and that those are the evidence of indebtedness defined by the particular words. The authority cited undoubtedly announces an excellent rule of law hut we think an improper and mistaken application is attempted to be made of it. It is evident that the legislature intended to use the term, other evidence of indebtedness in writing,” as a general expression covering every species of evidence of indebtedness in writing without reference to the manner in which it was created. -If the Legislature had intended to restrict this class of indebtedness in writing to those writings which had been voluntarily entered into by the party, some such restrictive words would have been used to limit the general sweeping terms, “ other evidence of indebtedness in writing,” which, of themselves, are capable of including every species of indebtedness, the evidence of which exists in writing, and we have no doubt was intended to include all. Again, the term “other evidence of indebtedness in writing” is used to cover cases not included in the term written, contracts,” which just precedes it in the enactment. As a rule it has always been the policy of our Legislature to fix longer terms of limitations to contracts in writing than to those in parol, for the reason they are of a more solemn character and abuse is less liable to be worked against the debtor in case of a considerable time elapsing after their falling due and before suit; and more especially judgments have been given longer lease of life than almost any other evidence of indebtedness in writing. Even now by our statute judgment of courts of record in this State have their limitation fixed at twenty years. In all the sections of the act in question where the character of the cause of action is mentioned specifically, and a less time than ten years is fixed, one contract or written evidence of indebtedness alone is fixed at five years, and that is “ awards of arbitration.” In all actions of less limitation the evidence of debt is not in writing. From this view and construing all the sections of the act together, and keeping in mind the general policy of the law, it is evident the Legislature did not intend by See. 15 to fix the limitation of Justices’ judgments to the short period of five years. If the construction contended for by appellee should prevail, there would arise great lack of harmony and incongruity in the provisions of our statute in reference to Justices’judgments. See. 1, Chap. 77, R. S., provides, “that a judgment of a court of record shall be a lien for seven years;” and Sec. 95, Chap. 79, provides, “that when a transcript from a judgment from a Justice of the Peace is filed in the Circuit Court it shall thenceforward have all the effect of a judgment of the Circuit Court.” In Seymour v. Haynes, 104 Ill. 557, it was held that the original judgment was not altered or suspended by reason of transcript having been taken and filed in the Circuit Court; that this is only an additional method of collection. By this rule it would follow, that in case the judgment before the Justice were satisfied of record, or barred by the Statute of Limitations, the transcript judgment, if it may be so termed, would also be satisfied or defunct, for the satisfaction or extinction of the one would necessarily work the satisfaction or the extinction of the other. And the Justice’s judgment is the principle, and the transcript the incident or means only by which the former may be satisfied. This being so, if the Justice’s judgment is held to be barred under Sec. 15 after five years from its date, it would be impossible for the transcript judgment to remain a lien for seven years the same as judgment's in courts of record, as is provided by statute in case of such judgments. But if Justices’ judgments are barred only under Sec. 16 of the Limitation Act after ten years, then in case the transcript be taken within three years after the rendition of the judgment, the transcript judgment could, under the foregoing provisions of the statute, run the entire-seven years and the statute have a uniform and harmonious operation, which we have no doubt the Legislature intended. We therefore hold that the limitations for the commencement of actions on Justices’ judgments is ten and not five years, and that Sec. 16 of the Limitation Act governs them. The court below therefore erred in sustaining the motion to dismiss the suit. The judgment of the Circuit Court is therefore reversed and the cause remanded.

Judgment reversed wnd cause remanded.


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    Helen C. Boyer v. Estate of Julius A. Boyer.

      Widow’s Award — Secs. 74 and 75, R. S. — Construction—Allotvances to be Reasonable — Appraisement—What Need not be Appraised — County Court may Set Aside Estimate — New Appraisement — Remorad of Appraisers — Jurisdiction of Circuit Court — Allowance of Amendment — Discretion —Practice.

    1. The appraisers, in making their estimate of the widow’s award under Secs. 74 and 75, Chap. 3, R. S., are not required to estimate the value of the family pictures and wearing apparel, the jewels of the widow and her minor children and the stoves and pipe used in the family, with the necessary cooking utensils, all of which are to be included in the award without regard to their value.
    2. The County Court may set aside an appraisement bill, or a report of appraisers making out and certifying an estimate of the value of the items allowed by statute as the widow’s award, and order a new appraisement, or remove the appraisers and appoint others to make such new appraisement.
    3. While the statute with respect to widows’ awards should be literally construed, its construction should be reasonable and the allowances made under it should be within the bounds of reason.
    4. In the case presented, it is held : That the County Court properly-ordered the appraisement and award set aside ; that the action of the Circuit Court in refusing a motion to allow the widow to amend the estimate because of the insertion therein of improper items, even if not within its discretion, was justified by the extraordinary allowances made by the appraisers; and that said court committed no error in ordering the affirmance of the order of the County Court.
    [Opinion filed December 11, 1886.]

    Appeal from the Circuit Court of Will County j the Hon. Dokrance Dibell, Judge, presiding.
    Messrs. H. F. Vallette, for appellant.
    Messrs. Olin & Philips, for appellee.
   Lacey, J.

This was an appeal from the order of the County Court, setting aside widow’s award and appraisement.

The Circuit Court overruled motion to refer the award to the appraisers to be again considered, setting aside appraisement bill and widow’s award, affirming the order of the County Court and giving judgment against the widow for costs. The appeal is taken to this court by the widow, and the action and judgment of the Circuit Court sought to be reversed.

The deceased, Julius A. Boyer, died leaving an estate consisting of personalty to the amount of over §135,000, leaving a widow and three minor children. The widow, Helen C. Boyer, was duly appointed administratrix and James L. Dunton, Michael Waller and John W. Arnold were duly appointed appraisers, and on the 29tli of July, 1885, they made out their appraisement bill and estimate of the amount to be allowed to the widow as her award, the appraisement bill showing that the personal property subject by law to such appraisement amounted to §806.50 in value, and that the estimated amount to be allowed as the widow’s award was the sum of 87,075.

The County Court set aside both the widow’s award and appraisement so made, and appeal was taken to the Circuit Court, and upon hearing the Circuit Court affirmed the order of the County Court, and this appeal is taken.

After the case was in the Circuit Court the administratrix, discovering that the widow’s award presented to the County Court was erroneous in important particulars, and could not he sustained, procured the appraisers to make out a new or amended estimate of the widow’s award fixing the sum total at §6,629 instead of §7,075 as in the original. She moved the court for leave to amend and for leave to substitute the new estimate for the old, which the court refused, and entered the order setting aside both the appraisement and award and affirming the order of the County Court.

This action of the Circuit Court is particularly questioned, and assigned for error. In refusing this request we see no error. Whether or not the court had the power in its d" :,cretion to allow the amendment, it certainly was no error to refuse to allow it under all the circumstances. The Legislature has designed the County Court to have especial jurisdiction of matters of probate and the setting up of estates, and the Circuit Court can not take to itself the administration of estates unless under certain circumstances. Wood v. Johnson, 13 Ill. App. 555, and cases there cited.

The County Court has a right for cause shown, to set aside an appraisement bill, or a report of appraisers making out and certifying to that court an estimate of the value of the items of property mentioned in the statute as the widow’s award, and to order the appraisers to consider the subject again, and for cause shown, might remove the appraisers and appoint others and charge them with these duties. Miller v. Miller, 82 Ill. 463, 470.

The Circuit Judge who tried the cause might very well have considered that, in view of the extraordinary developments contained in the amended estimate, that'it was a fitting question for the County Court to consider whether it would not remove the appraisers, and that the Circuit Court ought not to be diverted from a consideration of the matter appealed from, into an administration of the estate, thereby usurping the jurisdiction of the County Court, and for those reasons have refused the motion. And we can not say it was error to do so.

The next question is, did the Circuit Court err in sustaining the order of the County Court? We think not. It is admitted by appellant that the following allowance of items by the appraisers was erroneous, to-wit: The family pictures and wearing apparel, jewels and ornaments of the widow and minor - children, $2,000, and the stoves and pipe used in the family, with necessary cooking utensils, $400, making $2,400. See Secs. 74 and 75, Chap. 3, E. S. These items were not allowable under the statute, and it was these that it was desired to correct by the new estimate of the widow’s award. But how was it corrected ? The new award submitted will show. The objectionable items were stricken out, and most singularly the appraisers attempted to compensate the widow for it by adding nearly the entire amount t'o other items of the award, as follows : In the first appraisement of the widow’s award the appraisers estimated necessary beds, bedsteads and bedding for the widow and family at $1,000, and one sewing machine was not estimated, and provisions for the widow and family for one year was put at the round sum of $2,500. In the amended appraisement the sum of $1,200 was added to the item for necessary beds, bedsteads and bedding for the widow and family, and the extraordinary price of $200 was added for the sewing machine, and $500 was added to the item for provisions for the family for one year, and another milch cow was added at $50. The appraisers were acting under the same oath at the time each estimate was made, and no explanation of how or why this great change was effected. It appears to be a remarkable case of forcing results, and the new estimate to be born of a desire on the part of the appraisers to make up to the widow, without reference to a proper valuation, the loss, at least in part, sustained by the mistake. Ho court would be justified, in the face of such circumstances, in approving the amended report, and in fact it would be strong evidence going to show the bad faith of the appraisers in their former appraisement and the widow’s estimate of award. It was in evidence that the deceased was a free liver ; that he spent on his living expenses from $7,000 to $10,000 per annum, and kept as many as four servants; yet the entire estimate of all his household goods, carpets, stoves, library, beds and bedding, all his horses and carriages and furniture and utensils about the house, only amounted to $806.50; but what he should have had or the widow should have to put her in keeping with the former life of her husband, would be $7,075— a most remarkable result, indeed. Then some of the items— eight bedsteads and beds, $60 — and yet the widow was estimated to be entitled to $1,000 in same, and in final report $2,200. The other items in a measure correspond with this one cited. What faith could the court put in such reports and appraisements as these? While the statute with respect to widow’s awards should be liberally construed, yet the allowances should be within the bounds of reason, and the construction given should be reasonable. While there are no creditors here, it appears that there are three minor children to be affected. Sec Strawn v. Strawn, 53 Ill. 263. We regard this case as an authority against tlie claim of appellant. The household and kitchen furniture, beds and bedding on hand at the time of the husband’s death would presumably be sufficient to keep up the establishment after his death. It is not shown that the house was not sufficiently furnished at the time of the husband’s death, nor is it shown -that any additional beds were necessary. As to the sufficiency or correctness of the other items of the appraisement or award it is unnecessary to express an opinion, as a new one must be made out by the same or some new appraisers to be appointed by the County Court. The point made that the court erred in ordering the judgment of the County Court to he affirmed, is not well taken; the Circuit Court, if it will, may adopt the order of the County Court.

Besides, the order is that the appraisement and award be set aside. It is all that it need be. Perceiving no error in the record the judgment of the court below is affirmed.

Judgment affirmed.


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    John F. Smith, H. J. Porter and Sidney Smith v. Samuel S. Taggart.

      Action for Injuries — Negligence of Warehousemen in Excavating under Dricetcay — Instructions—Damages, not Excessive — Evidence—Res Gestas — • Statute of Limitations — Amendment of Declaration — New Cause of Action.

    1. While a new cause of action can not be injected into a pending litigation by amendments or additional counts to the declaration, so as to avoid the plea of the Statute of Limitations, if the amendment or additional count is a mere restatement of the original cause of action, the bar of the statute will not apply.
    2. In an action to recover damages for personal and other injuries alleged to have resulted from the negligence of the defendants in excavating under a driveway leading to their warehouse, it is held: That the amendment to the declaration, if necessary, was merely a restatement of the same cause of action; that evidence of the plaintiff's inability to do his usual work, and of the gentleness of his horses, was properly admitted; that a verdict for $500 in favor of the plaintiff is not excessive, and is sufficiently sustained by the evidence, although conflicting, there being no question of the gross negligence of the defendants; and that the instructions, which were numerous, were substantially correct, being especially as favorable to the defendants as -they could reasonably ask.
    3. Where the court has properly instructed the jury on a given point, it is under no obligation to repeat the same principle of law in another instruction in different phraseology.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Stephenson County; the Hon. John V. Eustace, Judge, presiding.
    Mr. James S. Cochran, for appellants.
    The third instruction given for the plaintiff gives unbridled license to the jury to render a verdict for the full amount of proximate damages, if any, that they may believe from the evidence, he suffered by reason of such injury, without any limitation on the jury to the right of recovery for the negligence specified in the declaration. Under this instruction the jury may well have assumed to give the plaintiff damages for his mental suffering, prospective profits in business, loss in change of business, and any other proximate damages, although not specified in declaration. The plaintiff is limited in his right to recover to the injuries set forth in his declaration, and to such special damages as are specified in his declaration, and he can not recover any special damages outside of his declaration. Camp Point Mfg. Co. v. Ballou, 71 Ill. 417; C. & A. R. R. Co.v. Mock, 72 Ill. 141; C., B. & Q. R. R. Co. v. Lee, 68 Ill. 576; C. W. D. R’y Co. v. Klauber, 9 Ill. App. 613, 620.
    Under this instruction, the jury may have thought that they had the right to find a mental suffering and anguish, which is not allowable. I. C. R. R. Co. v. Sutton, 53 Ill. 397 ; Joch v. Dankwardt, 85 Ill. 331,
    It should have been more accurate. C. & N. W. R. R. Co. v. Dimick, 96 Ill. 42, 47; C., B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510.
    The sixth instruction assumes that if there was gross negligence, that such gross negligence was wilful and malicious.

      Gross negligence is defined to be the omission of those ordinary and reasonable precautions which every prudent man would observe for his own safety. C. W. D. R’y Co. v. Klauber, 9 Ill. App. 613, 623; C., B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; C., B. & Q. R. R. Co. v. Lee, 68 Ill. 576; L. C. R. R. Co. v. Patterson, 93 Ill. 290.
    By this instruction the question of want of ordinary care on the part of plaintiff, the main theory of the defense, is absolutely ignored and obliterated, for the want of ordinary care is of no avail when the injury is wilfully and malicioiisly inflicted. C., B. & Q. R. R. Co. v. Lee, 68 Ill. 576; St. L., A. & T. R. R. Co. v. Manly, 58 Ill. 300; C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512, 521; W., St. L. & P. R’y Co. v. Shacklet, 105 Ill. 364, 370.
    It is not proper by an instruction to announce what acts are • negligent, and the degree of negligence which they prove. It is for the jury to say from the evidence whether either or both parties were guilty of negligence, and if so, its comparative degree. Kolb v. O’Brien, 86 Ill. 210.
    An instruction is erroneous which is predicated on the assumption that there is evidence tending to prove a fact when there is no such evidence. C., B. & Q. R. R. Co. v. Harwood, 90 Ill. 425.
    An instruction which allows a recovery for negligence in general respects, without limitation to the particulars of negligence specified in the declaration, is too broad. Eecovery should be confined to causes averred in declaration. C. & A. R. R. Co. v. Mock, 72 Ill. 141; Camp Point Mfg. Co. v. Ballou, 71 Ill. 417 ; C. W. D. R’y Co. v. Klauber, 9 Ill. App. 613, 620.
    The observance of ordinary care is an essential element to right of action in any case of negligence. C., B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510, 516 ; W., St. L. & P. R. R. Co. v. Thompson, 10 Ill. App. 271, 275; C., B. & Q. R. R. Co. v. Lee, 68 Ill. 576; I. C. R’y Co. v. Hetherington, 83 Ill. 510, 515.
    An averment of due care when traversed by the general issue can not be treated as an immaterial issue, and this issue can not be ignored. W., St. L. & P. R’y Co. v. Shacklet, 105 Ill. 364.
    Each instruction should be correct in itself. The fact that proper instructions were given to the defendants will not cure the error in those given for the plaintiff in cases of this character. Camp Point Mfg. Co. v. Ballou, 71 Ill. 417; C. & N. W. R’y Co. v. Dimick, 96 Ill. 42, 47; Morris v. Gleason, 1 Ill. App. 510 ; W., St. L. & P. R’y Co. v. Schacklet, 105 Ill. 364; C. & A. R. R. Co. v. Murray, 62 Ill. 326 ; Baldwin v. Killian, 63 Ill. 550; I. C. R. R. Co. v. Moftit, 67 Ill. 431.
    Messrs. J. C. Garver and P. J. Geib, for appellee.
   Baker, P. J.

This was an action by Taggart against appellant to recover damages for personal injuries claimed to have been occasioned on the first day of August, 1882, through their negligence. The original declaration charged in substance, that appellants were at that date possessed of certain premises used by them for warehouse purposes, and for the receiving of grain, and of a certain drive-way leading up to the same and connected therewith, and that while appellee, with due care and without notice, was going upon said drive-way with his wagon and team, to deliver grain to said warehouse, the "appellants wrongfully, negligently and . unskillfully excavated under said way, so as to make the same unsafe and dangerous, and negligently suffered the same to be and remain in such dangerous condition, without suitable props or reasonable notice of such condition; and that by means of the premises and solely by reason of the negligence and improper excavation under said way, and its unsafe and dangerous condition, appellee was thrown, with his team, violently and unavoidably into such excavation, and thereby broke his wagon and harness, and was himself hurt, bruised, etc.

On the 14th day of December, 1885, the declaration was so amended as to charge, that the excavation was “ under said messuage and premises, up to the said way and partly around one post on which a part of said way rested,” and also charged that1 the injury was occasioned by reason of the negligent and improper excavation under said messuage and premises up to said way,- and partly around one of the posts upon' which said way rested; whereby said- way béeameand was-in-an unsafe and dangerous condition.

It is objected that' the negligence-complained of in the original declaration was the excavation under the drive-way, whereas the negligence complained of in the amended declaration was the excavation under the warehouse and up to the drive-way, and partly around one of the posts supporting the drive-way; and it is claimed that this amendment introduces a new cause of action, and one to which the Statute of Limitations is a complete defense.- We do not understand the pleadings in this case. The rule of law undoubtedly is that a new cause of action can not be injected- into a pending litigation by amendments or additional counts to the declaration, so as to have the effect to avoid the" plea of the Statute of Limitations. I. C. R. R. Co. v. Cobb, 64 Ill. 128,140; Phelps v. I. C. R. R. Co., 94 Ill. 548. But if the amendment or additional count is a mere restatement - of the' original cause of action, then the bar of the statute will not apply- to it. In the Cobb case it was said: “ Counsel for appellees cite various authorities for the purpose of showing that courts should be liberal in allowing amendments for the purpose of avoiding the running of the statute. These authorities, however, are cases where the amendment was for the purpose of restating the cause of action in the pending'suit, and not for the purpose of introducing a wholly new and different cause of action.” In- the Phelps case, the matter at" issue being the question of the bar of the Statute of Limitations, it was said: “The solution of the question depends upon whether the additional counts set up entirely new causes of action.” In the North Chicago Rolling Mill Co. v. Monka, 107 Ill. 840, it was said: “The damages sought are for the same injury alleged to have resulted from the defectiveness or"insufficiency of the same machinery, and that the existence of such defects was by reason of the fault of defendant. The substance of the additional count is identical with that of the first, varying only in the description of the particular point in which the defendant was alleged to have failed in its duty to plaintiff.’’ So, here, the injury mentioned in the declaration as amended, was the same as that mentioned before the amendment; both before and after the amendment it was the unsafe and dangerous condition of the drive-way that was alleged to have caused the injury, and the negligence of appellants that was averred to have occasioned such unsafe condition. The only difference was in the statement of the particular way in which appellants made the drive-way dangerous, and even in that respect there was but a slight variance, if any. We think the allegations of the declaration before and after the amendment were substantially the same; and even if the amendment was necessary, which is extremely doubtful, it was at most merely a restatement of the same cause of action. Our conclusion is, that the two years bar of the Statute of Limitations has no application to the case.

It was not error to permit appellee to state in his testimony that he had left his farm because he was unable to work it, on account of the injuries he had received. It was not stated or claimed as an element of special damage, and the fact he was unable to do his usual work was a circumstance tending to show the extent of his injuries. We are unable to see that there was any error in allowing the witness, Poffenberger, to testify that the horses the appellee drove at the time of the injury were gentle; the character of the horses for gentleness or otherwise was one of the circumstances connected with the res gestee of the transaction.

The court refused to give the 12th instruction asked by appellants. Its substance was given in the 5th instruction of the series, which told the jury that there must be proof of ordinary care on the part of the plaintiff; that the gist of the action was the negligence of the defendants and ordinary care on the part of the plaintiff, and that unless these were established the defendants were not liable. There was, therefore, no error in refusing the 12th instruction, as the court was under no obligation to repeat the same principle of law in another instruction couched in variant phraseology. Objcctions are made to the 3d, 6th, 7th and 10th instructions given at the instance of appellee. It is claimed, the 3d instruction gives unbridled license to the jury to render a verdict for the full amount of proximate damages without limiting the jury to the negligence and the injuries specified in the declaration. As we read the instruction, the jury were informed in express terms that in order for plaintiff to recover it was necessary for him to prove that he was injured as stated in the declaration, and by the negligent act of the defendants as stated in the declaration, and that upon such proof, if made, he was entitled to the full amount of proximate damages, if any, that he suffered by reason of such injury. The point made is without merit. The 6th instruction defined gross negligence as meaning “a wrongful act or omission wilfully and maliciously done or omitted, or wantonly reckless conduct showing an utter disregard of the rights of others.” It is urged this instruction assumes that if there was gross negligence, then such gross negligence was wilful and malicious. This is not a correct statement of the meaning of the instruction ; that which it assumes is this: that if there was a wrongful, wilful and malicious act or omission, or wantonly reckless conduct that showed an utter disregard of the rights of others, then such act, or omission, or conduct, was gross negligence, and most assuredly it would be that, and even something worse. If the instruction is inaccurate, that inaccuracy is in favor of appellants, and they can not complain. The doctrine of comparative negligence was involved in the case, and it was claimed appellee had been negligent, and if that were found to be true by the jury and that appellee was guilty of even slight negligence, then it precluded the right of recovery unless the jury found the negligence of appellants was gross, and it followed that the greater the negligence was that was necessary in order to constitute gross negligence, the better ■ for appellants. Appellee alone could be injured by the instruction. The 7th instruction was as follows:

“ The court instructs you that when a tort or wrong is committed by an agent or employe in the course of his employment, and while pursuing his employer’s business, the employer will be liable for any damages resulting from such tort or wrongful act, although it is done without the employer’s knowledge or consent, unless the wrongful act is a wilful departure from such employment or business.”

It is claimed that the right of recovery should have been confined to the causes alleged in the declaration, and that the instruction omits the duty of ordinary care on the part of the injured party. It will be noted that this instruction does not purport to lay down the ground upon proof of which a recovery may be had, and therefore the principles which are applicable to that class of instructions do not apply to it. The instruction merely states, and correctly states, an abstract rule of law. It does not pretend to state either the injury or the negligence necessary for a recovery in the particular case, nor do we understand that it is required in cases of this character that every instruction stating a principle of law should embody the legal formula with reference to ordinary care upon the part of the plaintiff. The criticisms upon the instruction are not well founded.

The 10th instruction contains two sentences that are lengthy and somewhat involved ; but it is plain from the context and the phraseology, connection and construction of these sentences, that they are to be considered together, and that they qualify and explain each other. There is no assumption in the instruction that it gives a catalogue of the facts that will justify a verdict for the plaintiff, but its evident function is to state and explain the doctrine of comparative negligence. Quite a number of facts are urged against it, and these may be briefly disposed of. The very first clause states in apt terms the requirement of reasonable care on the part of the plaintiff; the gross negligence of the defendants’ servants was in law, the gross negligence of defendants themselves; in defining and explaining the rule of comparative negligence^ it is not requisite that the expression “ the negligence of the defendants ” should be qualified by the words “ specified in the declaration ” ; it is not necessary to state that the injuries complained of” were directly” caused by the negligence of the defendants, in a cause where neither the pleadings nor the proofs claim or suggest either remote negligence, injuries or damages. 'The instruction is, in some respects, rather inartificially drawn, hut we are unable to see it could have misled the jury; and the criticisms upon it are technical and too refined for the purposes of the substantial and practical administration of justice.

The evidence is somewhat conflicting, but the conflicts in the testimony have been decided by the jury in favor of appellee. We have carefully examined the evidence, and think that it sufficiently sustains the verdict. It tends to show the injuries received were painful, serious in their consequences, and permanent; and we are unable to say the damages awarded, $500, are excessive. There is no question of the gross negligence of appellants and their agents and servants in so excavating under their elevator as to render the drive-way unsafe and dangerous, without giving any notification of such condition to the public whom they invited to deal with them and use it. The pit was not in sight, it was under the warehouse. It does not appear that appellee saw the earth that had been taken from the excavation and distributed in plain view of the road leading to the drive-way; but, even if he saw it, or was chargeable with notice it was there, yet as he was not notified of danger by the clerk who weighed his wheat at the scales, and the wheat could only be delivered by using the drive-way, and there was no warning or impediment placed at the driveway, he had a right to rely upon its safety. The jury have passed upon the question of his supposed negligence, and we can not say their decision was wrong. The instructions were substantially correct; and in the eleven instructions given at the instance of appellants, the principles of law tending to this interest were as fully and as favorably given as they could reasonably ask.

We find no substantial errors in the record,-and the judgment is affirmed.

Judgment affirmed.'