text:
    The People of the State of Illinois, Defendant in Error, v. Theodore Nelson, Plaintiff in Error. The People of the State of Illinois, Defendant in Error, v. Charles W. Browne, Plaintiff in Error.
    Gen. Nos. 14,824 and 14,825.
    Consolidated for Hearing.
    1. Municipal Coubt—effect of filing amended information. By the filing of an amended information the original information is superseded and abandoned.
    2. Municipal Court—when information must he verified. An information which contains no reference to the attorney-general or to the state’s attorney is the information of an individual, which by statute, must be verified.
    3. Notaries public—what does not establish authority to administer oaths. A notary’s jurat and seal do not establish his authority to administer oaths.
    4. Notaries public—-when verification void. If the caption of an affidavit is in Illinois and a notary of another state appears to have administered the oath, such affidavit is void.
    Prosecution for criminal libel. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed October 25, 1909.
    Darrow, Masters & Wilson, for plaintiffs in error.
    John E. W. Wayman and F. L. Barrett, for defendant in error; David K. Cochrane, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiffs in error and another were jointly charged with criminal libel by an amended information filed in the Municipal Court. Plaintiffs .in error pleaded not guilty, but on the trial both were found guilty by the jury. The court overruled their motion for a new trial, and in arrest of judgment, and sentenced each to pay a certain fine and costs of suit. To reverse said judgments plaintiffs in error sued out separate writs of error, which have been consolidated for hearing on the record filed in No. 14,824. The transcript contains no bill of exceptions and the only assignment of error argued is, that the court erred in denying the motions of the plaintiffs in error in arrest of judgment.

March 8, 1908, on motion of the state’s attorney, it was ordered that leave be granted to the state’s attorney to file an amended information in said cause. The same day an information was filed, which begins as follows:

‘ ‘ State of Illinois, ‘1 County of Cook, ‘ ‘ City of Chicago. ss. In the Municipal Court of Chicago.
AMENDED INFORMATION.
“James A. Everitt, in his own proper person, comes here into court in the name and by the authority of the People of the State of Illinois, and gives the court to be informed and understand, ’ ’ etc.

It is signed “James A. Everitt.” It contains no reference to the original information nor any reference either to the attorney-general or the state’s attorney.

By the filing of the amended information the original information was superseded and abandoned. Swift Co. v. Gaylord, 126 Ill. App. 281-6.

The contention of the defendant in error that the amended information is an information of the state’s attorney cannot be sustained. It is clearly an information “presented by a person other than the attorney-general or the state’s attorney,” and therefore it was, under section 27 of the Municipal Court Act, required to be verified by the affidavit of the person who presented it.

Attached to the amended information is the following instrument:

“State of Illinois, £ ‘ County of Cook, “City of Chicago.
“James A. Everitt, being first duly sworn, on his oath, deposes and says that he is a resident of the City of Indianapolis and State of Indiana; that he has read the foregoing amended information by him subscribed, and that the same is true.
(Signed) Jambs A. Evebitt.
1 ‘ Subscribed and sworn to before me this 10th day of March, A. D. 1908.
(Signed) Joshua E. Flobea, “Notary Public in and for the County of Marion i& the
State of Indiana.
(SEAL) _
_ “My commission expires March 16, 1911.”

Attached thereto is the certificate of the clerk of Marion county, Indiana, under the seal of his office, that Joshua E. Florea was on March 10,1908, a notary public in and for said county, and authorized by the laws of the State of Indiana to take and certify affidavits.

It is insisted by defendant in error that said instruments sufficiently show that said amended information was verified by the affidavit of James A. Everitt. Passing for the present the question of the effect of the venue stated in the caption of the purported affidavit, and assuming that the oath was administered in Marion county, Indiana, there is nothing in the record to show that a notary public was authorized by law to administer oaths in the State of Indiana. That the notary’s jurat and seal do not establish such authority, under section 6, chapter 101, R. S., is well settled. Trevor v. Colgate, 181 Ill. 129; Ferris v. Bank, 158 id. 237; Smith v. Lyons, 80 id. 600.

In this case the notary did not certify that he had authority to administer oaths under the laws of Indiana. As to the certificates of the clerk that the notary had such authority, it is sufficient to say that the statute does not make such certificate of the clerk evideuce of the authority of the notary to administer oaths.

But there is another and fatal objection to the validity of the purported affidavit of Everitt to the amended information. The venue in the caption is:

“State of Illinois, "1
“Cook County >• ss.
‘ ‘ City of Chicago. ’ ’ J

The venue stated in the affidavit clearly manifests that what is called an oath was administered in Cook county, Illinois. “In all affidavits and other papers requiring such a venue, it is for the very purpose of indicating where the act was done.” Van Dusen v. The People, 78 Ill. 645-6.

A notary public of Marion county, Indiana, had no authority to administer an oath in Cook county, Illinois. What it designated as an affidavit is therefore a nullity, first, because it does not appear that it was sworn to before an officer having authority to administer oaths, and, second, because if it be conceded that the notary had authority to administer oaths under the laws of Indiana, the venue stated in the caption of the instrument shows that what is called an oath was administered beyond the limits of the State of Indiana, and was therefore void. Van Dusen v. The People, supra, 647.

We think the court erred in denying the motion of plaintiffs in error in arrest of judgment, and the judgment will therefore be reversed and plaintiffs in error discharged.

Judgment reversed in each case and plaintiff in error discharged.


source: Caselaw Access Project

author: Mr.. Justice Freeman

license: Public Domain

text:
    Peter Smaoska, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 14,379.
    1. Instbuctions—when peremptory may he given. A motion to instruct the jury is in the nature of a demurrer to the evidence and should only be given where such evidence with all inferences which may reasonably be drawn therefrom is so insufficient that if a verdict were returned upon it such verdict would have to be set aside.
    2. Evidence—lohen ownership and operation admitted. The ownership and operation- of a traction line in an action for personal injuries resulting from negligence, are admitted by the filing of the plea of the general issue.
    3. Negligence— -proximity of cars to poles. Held, that under the evidence, it was for the jury to say whether the defendant traction company was guilty of negligence, it appearing that the car of the defendant was crowded, that the plaintiff was permitted to ride upon the steps thereof and that he was injured by being struck by a pole erected in proximity to the tracks upon which the car was running.
    Action in- case for personal injuries. Error to the Circuit Court of Cook county; the Hon. Solon Philbbick, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    Statement by the Court. This is a suit to recover for personal injuries. There is evidence in behalf of plaintiff in error which tends to show that somewhat after the noon hour of September 7, 1903, after taking part in a labor day parade, plaintiff boarded a Clark street car operated by defendant in error and paid his fare; that the inside of the car was filled with passengers and the front platform, on which he first got a place to stand, was full also; that he was standing “about a foot from the step” and that he rode in that position about three-quarters of a mile, more or less, when he was crowded off the platform by other passengers and thereafter rode standing on the step of the car facing inward, holding himself on by grasping the iron bars of the car; that while so standing he was struck on the head, as the car was going upon the viaduct, by a trolley post which the car was passing, and that while making an effort to get further inside he was struck again by a second post; that at the time he was being pressed back and out by people from the other side of the platform; that the car was going at a medium rate of speed, and that “it went fast;” that he remembers he was knocked off the car and some policeman and a crowd of people were around him; that the right side of his head and also his back were struck and injured by the post and that his left hand or wrist was dislocated or broken; that when he was struck “the first time he swerved and held on with his hand and twisted his hand up; ” that his head was thrust back and “his whole body was being shoved;” that the post which first struck him was about a foot and a half from the edge of the car, and that the injuries complained of were thus caused.
    At the conclusion of the plaintiff’s case the defendant moved to exclude the evidence. The motion was allowed and the court instructed the jury to find the defendant not guilty on each count of the declaration, which was done,, and judgment entered accordingly. The plaintiff now brings the cause here by writ of error.
    Theo. Proulx and Cyrus J. Wood, for plaintiff in error.
    Watson J. Ferry, for defendant in error; John E. Harrington, of counsel.
   Mr.. Justice Freeman

delivered the opinion of the court.

It is sought to reverse the judgment on the ground that it was error for the Circuit Court to take the case from the jury at the close of plaintiff’s evidence. As has been often said, a motion to instruct the jury as in this case is in the nature of a demurrer to the evidence and should only be given where the evidence, with all inferences which may reasonably be drawn from it, is so insufficient that if a verdict were returned upon it, such verdict would have to be set aside. Upon such a motion no question as to the weight of the evidence nor the credibility of the witnesses is involved. The question is whether the plaintiff’s evidence as it stands, with whatever inferences may legitimately be drawn from it, is such that the jury could, without acting unreasonably in the eye of the law, find a verdict in favor of the plaintiff. It was said in Udwin v. Spirkel, 136 Ill. App. 155-158, that “in order to sustain the taking of the case from the jury, - we must hold that men of reasonable minds could arrive at but one reasonable conclusion from the evidence.” The rule is thus stated in L. S. & M. S. Ry. Co. v. Kelsey, 180 Ill. 530-533: “If the conduct of the party whose duty it is to use due care ‘is so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent, ’ then the court may so pronounce and so instruct the jury. (Hoehn v. Chicago, Peoria and St. Louis Ry. Co., 152 Ill. 223, and cases cited.) ” Some of the cases in which this matter is considered are: Chicago Union T. Co. v. Lowenrosen, 222 Ill. 506-508; Ill. Cent. R. R. Co. v. Bailey, 222 Ill. 480-485; C. C. Ry. Co. v. Martensen, 198 Ill. 511.

Would all reasonable minds reach any other conclusion from the plaintiff’s evidence in this case standing alone without any opposing evidence, than that the plaintiff, while in the exercise of ordinary care, under all the circumstances was not injured by reason of negligence of the defendant? The declaration avers in substance that defendant carelessly and negligently ran its car, upon which plaintiff was a passenger for hire, upon its tracks past certain trolley poles, to wit, ten inches, that defendant knew or should have known by the exercise of reasonable diligence, that it was dangerous to life and limb of persons standing upon the steps of such car, which plaintiff did not know; and that the defendant carelessly and negligently allowed certain passengers, among them the plaintiff:, to be upon the steps of the car while it was being run past said poles; that the proximity of the poles to the car when running past them was such that it was a place of danger, and it was the defendant’s duty to give notice or warning of such danger to persons riding upon the steps of such car, and that the defendant neglected its duty in that behalf and negligently ran its cars past said trolley poles without such notice, whereby plaintiff was injured. We cannot concur in the claim made in behalf of defendant that the plaintiff failed to prove “a single allegation in any count of his declaration.” The evidence does not support such assertion.

It is argued that there was no evidence tending to show that the Chicago City Railway Company owned, leased, operated or had anything to do with the track upon which the street car in question was run. The testimony in behalf of plaintiff on this point was that it was the “Chicago City Company” and that its full name is “Chicago City Street Company,” and that “it was a Clark street car.” The defendant pleaded the general issue to the plaintiff’s declaration. In view of this condition of the pleadings the contention of defendant’s counsel under consideration is not tenable and requires no extended discussion. In Chicago Union Traction Co. v. Jerka, 227 Ill. 95-99, the Supreme Court announced in explicit terms that under the rule of stare decisis it regards the question as settled; namely, that “the plea of not guilty did not put in issue the ownership of the street car line or the cars operated thereon. These were matters of inducement and it was not necessary that the appellee should offer any proof in support of these facts unless they were denied by special plea. This view we regard as firmly established in this State by the following cases:” (Citing them.) In view of what is thus said and the further language of the court in that case, the subject must be deemed not open for further discussion.

It is urged that it was not negligence on the part of defendant to permit its street car to be crowded with passengers, nor to permit passengers to ride on the steps of the car; citing Chi. City Ry. Co. v. Considine, 50 Ill. App. 471-475, in which it was said: “We do not hold that it was of itself negligence on the part of appellant to permit the car to become crowded with passengers.” It has been held that permitting a passenger to ride on the steps of a crowded street car does not constitute negligence per se on the part of a street railroad company on the one hand (North Chi. St. R. R. Co. v. Polkey, 202 Ill. 225-232), nor does such riding necessarily constitute negligence on the part of a passenger. In North Chicago St. R. R. Co. v. Williams, 140 Ill. 275-281, the court quotes approvingly from a Massachusetts case, where it is said in reference to riding on or getting on the front platform of a horse car when in motion: “Whether any particu-

lar act of that kind is negligence must depend upon the circumstances attending and characterizing it, and must ordinarily be determined by a jury.” So in the case at bar it was for the jury to determine upon all the evidence whether it was negligence for defendant to operate its car as the evidence tends to show was done under conditions such as the evidence discloses. Defendant claims that the plaintiff’s evidence demonstrates the poles were a safe distance from the track. This also is a question of fact which it was for the jury to determine from the evidence. In West Chi. St. R’d Co. v. Marks, 82 Ill. App. 185-188, it is said, quoting from N. Chi. St. R’d Co. v. Williams, supra, “Where a railroad company places its tracks so near an obstruction which it is necessary for its cars to pass, that its passengers in getting on or off the cars and while upon them are in danger of being injured by contact with such obstruction, it is a fair question for the jury whether the company is or is not guilty of negligence. * * * It has been held that it is inexcusable in a railroad company to permit an obstruction to stand so near its track as to render the use of the step or running-board dangerous to life and limb, inasmuch as exceptional cases may arise when it is lawful and proper for even a passenger to use such stepping-board.” In South Side El. R. R. Co. v. Nesvig, 214 Ill. 463, is a consideration of the question of liability of a railroad company for injury to a passenger by the operation of its train in proximity to an obstruction, and it is said (p. 470) that if the company is “chargeable with notice it is negligence on the part of the company to operate its trains in such dangerous proximity to such objects or structures.” Inasmuch as the case must be submitted to another jury we refrain from further discussing the evidence.

Defendant in error has filed a general argument which contains no brief and no statement of points relied upon.

For reasons indicated the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Freeman

text:
    Dauchy Iron Works, Defendant in Error, v. S. H. Gunder, Plaintiif in Error.
    Gen. No. 14,432.
    1. Corporations—power to hold real estate and lease portions thereof. In the absence of a showing of lack of good faith upon the part of a corporation, a corporation may acquire real estate and use so much thereof as may be then necessary for its corporate purposes, retaining the balance to take care of future requirements of its business, and until such balance is not required it may lease the same and collect the rent accruing from such leasing.
    2. Pleading—when recovery may he had under common counts. Rent accruing under a sealed lease even though the premises were not occupied by the lessee during the period for which the rent ia claimed, may be recovered under the common counts if there has been full performance by the lessor.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed October 25, 1909.
    Statement by the Court. This is a suit to recover rent upon a written lease made by the plaintiff, defendant in error here, in favor of the defendant, now plaintiff in error. The declaration is in assumpsit, consisting of the common counts, to which the defendant pleaded non-assumpsit and filed a special plea of ultra vires.

    The plaintiff, Dauchy Iron Works, is a corporation organized in 1888 under the general incorporation Act of this State, “for the manufacture and sale of sidewalk, vault and area lights, and other iron manufacture and foundry work.” The corporation in the same year purchased real estate consisting of two lots or pieces of land adjoining each other fronting on Illinois street, Chicago, comprising in all a frontage of about one hundred and twelve feet with a depth of about one hundred feet. The same year it erected on one portion of this land a four-story building having a depth of thirty feet, the basement of which was used as part of a foundry which was also erected on said lot behind said building, covering a space of about sixty-two by seventy feet. About two years later the corporation erected a second building on the other portion of its land so purchased, said building being six stories in height by about one hundred feet in depth, covering thus substantially the whole of that lot or piece of ground. It also placed two additional stories on the original building, making that also a six story building. The corporation made use of the first four floors of the first building in connection with its manufacturing business, and also the basement of the new or second building. The remaining space in the two buildings, namely, the second, third, fourth, fifth and sixth stories of the new building and the two stories added to the first building were rented. Later the corporation made use of in its own business and ceased to rent a part and subsequently the whole of the second floor of the new building, and continued to rent the remaining stories, six in all, of the two buildings. The defendant subsequently became a tenant of the corporation, leasing in 1902 the whole of the fourth floor of the second or new building known as 90 to 92 Illinois street, and in 1904 the rear portion of the fifth floor of said building, the terms of both leases expiring April 30, 1907. In March, 1906, the defendant vacated the premises, and this suit is brought to recover the balance of rent alleged to be due under the leases from the time of such vacation to the end of the term.
    The trial court entered judgment in favor of the plaintiff for the amount of rent found to be due under the leases. From that judgment this writ of error is prosecuted.
    Ferguson & Goodnow, for plaintiff in error.
    Stuart G. Shepard, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

The defendant complains first, that the trial court erred in not sustaining the plea of ultra vires; and the contention that the plaintiff, a corporation, had no authority, express or implied, under its charter to execute the leases in question, is argued elaborately and at length. The argument is in substance that the charter of a corporation is the measure of its powers; that under the plaintiff’s charter it has no power, express or implied, to hold real estate beyond what may be necessary for the transaction of its business as set forth in section 5 of the Corporation Act; that the leases in question are ultra vires and void, and that they cannot be made valid by lapse of time or ratification by the parties. We deem it unnecessary to follow counsel for defendant in his elaborate discussion of the powers of corporations. The question now involved has been several times under consideration in this and the Supreme Court and must be determined in view of those cases. If we assume for the purpose of the argument that defendant is not estopped from interposing a plea of ultra vires and that such plea is technically sufficient (see C. O. B. of T. v. Imperial Bldg. Co., 136 Ill. App. 606-613, and cases there cited), the substantial question is whether the plaintiff corporation has authority under its charter to lease and collect rent for any unused portion of its premises, the major part of which is necessarily used for the transaction of its business.

In section 5 of the Corporation Act (chap. 32 R. S.) it is provided that “Corporations formed under this Act * * * may own, possess and enjoy so much real and personal estate as shall be necessary for the transaction of their business and may sell and dispose of the same when not required for the uses of the corporation.” It is not disputed that the plaintiff corporation was and is incorporated under that Act for a lawful business purpose. The charter, as we said in C. O. B. of T. v. Imperial Building Co., 136 Ill. App. 606-611, “consists of the articles of incorporation in connection with the law under which the corporation is organized.” It was authorized therefore to acquire, “own, possess and enjoy so much real and personal estate as shall be necessary for the transaction of its business.” It is conceded that the portion of the premises in actual use for its foundry and manufacturing business covers substantially the entire ground space which it so owns, and that it uses also for the transaction of its said business all floors of the two six-story buildings erected on such ground except the four upper floors of one and the two upper floors of the other building. It is clear therefore that so far as the land itself is concerned the corporation is using it all for the transaction of its business, and is renting only such upper floors of the buildings it has erected on said land as it has for the time being no occasion to use for its own manufacturing business. There is evidence tending to show that the demands of the corporation’s business upon its extra floor space have steadily increased so that out of a floor space in both buildings of 41,365 square feet, of which when erected the corporation used for its own business only about 12,490 square feet, it was using in 1907 about 16,990 square feet including the lower floors, presumably most available for its business purposes. There is no evidence tending to show that the erection of the buildings in question was not in good faith. In The People v. Pullman Palace Car Co., 175 Ill. 125-138, which company is a corporation, the charter of which authorized it to purchase, acquire and hold such real estate as may be necessary for the successful prosecution of its business, it was contended that the corporation had erected in Chicago a much larger building than its business required, and the court said (p. 139): “It would be but a narrow and wholly unjustifiable view of this power to insist that in planning and constructing this building the corporation should leave out of consideration its probable prospective requirements and should erect a building containing only as many rooms and offices as its present business might demand. The corporation had the right as we think to look to and prepare for the future. It was but true economy to do so, and if it proceeded in good faith * * * no reason is perceived why it should be deemed bound by law to permit such parts of the building as are not for the present required for the accommodation of its business to remain vacant, but on the contrary that it might lawfully obtain such income from the rents of such rooms as might be possible until the growth or increase of its business demanded the additional rooms or offices.” We discover no ground upon which this reasoning and conclusion are not equally applicable in the case at bar. In Rector v. Hartford Deposit Co., 190 Ill. 380-385, a contention substantially the same as that urged in the present case was considered, that the obligations of the lease were beyond the scope of the corporate powers of the corporation and for that reason void, and the position of the appellant was said to be “that the appellee corporation has flagrantly abused its general power to acquire real estate and construct a building thereon.” In that case the gross rental of the building fourteen stories high was $100,000 and the earnings from the safety deposit vaults, which by its charter the corporation was authorized to “erect and operate,” did not exceed $100 a year. It was held that it being within the general scope of the express powers of the corporation to erect a building necessary for its proper corporate purposes, it should not be necessarily restricted to a building containing the precise number of rooms its then business might require, “provided of course such course should be taken in good faith and not as a mere evasion of the public law and policy of the State relative to the ownership of real estate by corporations. In such state of case the question is whether the corporation has abused or excessively and unjustifiably used the power and authority granted it.” And it was held that such question—the defense of ultra vires—could not be maintained in “defense in a proceeding wholly collateral to the question of the right and power of the corporation in the premises.” This would seem to be conclusive against the contention of the defendant in the case at bar. But if such defense could be maintained collaterally in the present case, we discover no sufficient evidence of any such abuse of the plaintiff’s corporate powers or lack of good faith as would justify defendant’s contention that the leases are void.

It is further contended that motions made to find the issues in behalf of the defendant on the ground of alleged variance between the testimony and declaration and alleged want of sufficient allegations in the declaration were erroneously denied. The declaration consists only of the common counts in assumpsit, to which defendant pleaded the general issue and ultra vires. It is urged that there is no averment in the declaration for use and occupation, which it is said is the “appropriate common count between landlord and tenant.” It is conceded that the defendant did not occupy the premises during the time for which rent is demanded, and it is argued that the plaintiff should have declared specially on the leases in question and cannot recover on the ordinary common counts. We are of opinion, however, that what is said in Rubens v. Hill, 213 Ill. 523-566, is applicable in the case at bar and must be deemed conclusive, that “where there has been full performance and nothing remains to be done but the payment of the money, or where there has been only part performance and the remainder has been waived or prevented,” recovery may be had under the common counts upon a written contract though it be under seal. We think the leases were properly admissible in evidence under the pleadings.

It is said that the plaintiff waived its rights under the lease by asking more rent from prospective tenants. We do not so read the evidence. It appears that plaintiff actively endeavored to rent the premises as soon as the defendant vacated them. The ruling of the trial court in this regard gave to the defendant the benefit of such use of the premises by a prospective tenant for storing some of his goods for a month before the tenant’s occupancy of the premises began. The defendant cannot complain if the landlord obtained more rent than the lease called for, the benefit of which accrued to the former. We find no abuse of discretion in the refusal of the trial court to allow additional pleas of ultra vires to be filed under all the circumstances.

Even if we agree with the defendant’s contention that there is some error in the record, it nevertheless appears we think that the judgment does substantial justice between the parties, and it must be affirmed.

Affirmed.


text:
    City of Chicago, Plaintiff in Error, v. Bear Taub, Defendant in Error.
    Gen. No. 14,500.

      Oedinancjss—what not violation of, prohibiting purchase of traction transfers. Held, that the purchase of a transfer without an actual attempt to use it was not a violation of the ordinance in question in this case.
    Error to the Municipal Court of Chicago; the Hon. Isadobe H. Himes, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed October 25, 1909.
    Edwin H. Cassels and Symmes & Kirkland, for plaintiff in error; Edward J. Brundage and John A. Rose, of counsel.
    No appearance for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

This is a writ of error to the Municipal Court of Chicago, seeking to reverse a judgment of that court finding the defendant in error not guilty of the offense with which he is charged and discharging him.from custody.

The offense charged is a violation of section 1500 A of the Revised Municipal Code of Chicago, which is as follows:

“It shall be unlawful for any person to sell, barter or exchange for any consideration whatsoever any street railway transfer ticket or other instrument issued by any person or corporation operating any street railway within the city giving, or purporting to give, to the holder of such transfer ticket or other instrument the right to transfer, without the payment of additional fare, from one car to another car on the same line or route, or from one line or route to the car or cars operated upon another line or route; or for any person to give away any such transfer ticket or other instrument as aforesaid to another for the purpose of enabling, or with intent to enable, the latter to nse or offer the same for passage upon any street railway ear or cars; or for any person not lawfully entitled thereto who shall receive any such transfer ticket or other instrument as aforesaid to use, or attempt to use, or offer the same for passage upon any street railway car or cars. Provided, however, that tins section shall not relate to nor in any manner affect the issuing and giving of transfer tickets or other instruments as aforesaid by the agents or employee of any street railway to passengers thereof lawfully entitled thereto.
Any person violating any of the provisions hereof shall be fined not less than five dollars nor more than one hunderd dollars for each offense.”

There is evidence tending to show that the defendant was employed at the Auditorium Hotel in Chicago; that on the evening of his arrest he approached a newsstand at the corner of Halsted and Twelfth streets, which was kept by a man named Openheim; that he gave Openheim two cents and received in return a transfer ticket issued by the Chicago Union Traction Company or its receivers, which would have enabled its bearer to ride either north or south on the Halsted street line of said Company and to transfer from that line to any cross line cars going eastward. Defendant having received the transfer started along Halsted street, upon which were run the Halsted street cars of said Company. The time was a little after five o’clock p. m., and the transfer ticket, which was introduced in evidence, was good until twenty minutes after six o’clock p. m. for a ride north or south on said Halsted street cars and for a transfer from that line eastward. Before he could get on the Halsted street car the defendant was arrested by a police officer, and when asked for the transfer denied that he had one and dropped it on the ground, where it was picked up by the officer. The defendant stated that he was in a hurry to get to his work at the Auditorium, where it is said he was employed as a waiter. The transfer in question, as the evidence tends to show, had been issued by the Chicago Union Traction Company upon an east-bound 12th street car, and had then come into the possession of Openheim, who was in the business of selling papers on the corner of Halsted and Twelfth streets, where defendant procured the transfer from him. Openheim was also arrested.

At the close of the evidence for plaintiff the court, on motion of defendant’s attorney, discharged the defendant on the ground that the evidence failed to show that any attempt to actually use the transfer had been made or that defendant obtained it for the purpose of using it; that while such may have been the defendant’s intention and “it might have been running in his mind,” that there was no evidence of such intention.

It is contended on behalf of plaintiff that the purchase by defendant of the transfer for a valuable consideration, the fact that he went along Halsted street with it where he was in position to take a car upon which the transfer would entitle him to ride and so reach his place of work at the Auditorium, with all the surrounding circumstances in evidence, furnished sufficient proof of an attempt to use the transfer ticket for passage and an intent to do so; and that the Municipal Court erred in discharging the defendant. With this contention we are unable to agree. The court is of opinion that there must be an actual “attempt to use or offer the same (the transfer ticket) for passage upon” a street railway car, and that the evidence does not warrant the conclusion in this case that any such attempt was made; that the defendant had not boarded any car, had not attempted to use the transfer nor attempted to offer the same for passage upon any car; that the mere purchase and receipt of the transfer and proceeding with it along Halsted street did not constitute an attempt to use or offer it for passage upon a street car, and does not necessarily prove an intent to do so. It is said by plaintiff’s attorney’s “that the only question for the court to decide is whether the proof of the purchase of a transfer for a valuable consideration from one not in the employ of nor having authority from the company issuing the transfer, without proof that the purchaser actually used the transfer, is sufficient to establish a violation of the ordinance.” The ordinance provides that not only actual use, but an “attempt to use or offer the same for passage” shall constitute a violation.

There is no question as to the validity of the ordinance. It was sustained in City v. Openheim, 229 Ill. 313. It is true also, as said in Greenleaf on Evidence, Sec. 13a, quoted approvingly in Slack v. Harris, 101 Ill. App. 527-531, that in both civil and criminal cases “a verdict may well be founded on circumstances alone; and these often lead to a conclusion far more satisfactory than direct evidence can produce.” But the circumstances in a case like the one at bar must be such as have a tendency to prove a violation of the ordinance as it reads, not merely a possibility nor a probability of an intent to so violate it. It is true there may be a difference of opinion as to what evidence sufficiently tends to prove an “attempt” to nse or offer a transfer ticket for passage (see Wharton’s Criminal Law, vol. 1, 9th ed., sec. 181); but the majority of the court are of opinion that the evidence in the case before us does not show such an attempt.

The judgment of the Municipal Court is therefore affirmed.

Affirmed.


text:
    Harriet E. Griswold, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,584.

      Negligence—when collision not shown to have teen occasioned 6y. An injury resulting from a street car coming in contact with, certain pipes loaded upon a wagon, held, under the evidence, not shown to have resulted from the negligence of the traction company.
    Action in case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Robert W. Wright, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed with finding of facts.
    Opinion filed October 25, 1909.
    Statement by the Court. This is an action to recover for personal injuries alleged to have been received by the appellee while riding in a street car operated by the appellant on the 5th or 6th of July, 1905. The declaration alleges that plaintiff was a passenger on a south-bound car proceeding on the west track in Cottage Grove avenue; that a certain wagon was proceeding in a southerly direction upon said west track in front of said car; that defendant carelessly, negligently and wrongfully managed, operated and propelled said car upon which plaintiff was a passenger as aforesaid, and carelessly and negligently attempted to drive or propel said car past said wagon before said wagon and the load of material thereon was safely off of said tracks, and at a sufficient distance therefrom to permit said car to pass the same without striking it, whereby the car struck the wagon, and certain pipes with which the wagon was loaded came in violent contact with the plaintiff, whereby she was injured.
    There is testimony tending to show that the distance between the south and north bound tracks in Cottage Grove avenue is four feet, six inches; that the wagon contained a load of water and gas pipes, together with plumbing goods, the pipes projecting five or six feet beyond the rear end of the wagon; that after the wagon had pulled over in the north-bound track and was apparently clear from the south-bound track, which the train was proceeding, the latter slowly moved forward until the grip car had passed the wagon; that at this time the driver turned his horses out of the north-bound track toward the east curb of the street and as he did this the rear end of the wagon was swung around in such a manner that the projecting pipes struck the plaintiff, who was seated at the east end of one of the seats of the trailer car, the seats of which ran across the whole width of the car. She was occupying the east end of the third or fourth seat from the front of the car.
    The cause was submitted to a jury, which returned a verdict in favor of the plaintiff. Judgment was entered accordingly, from which this appeal is prosecuted.
    Franklin B. Hussey and C. LeRoy Brown, for appellant; John R. Harrington, of counsel.
    W. A. Flanegan and Coburn & Case, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of appellant that the verdict is not sustained by the evidence, that there was serious error in the rulings of the trial court upon the admission of evidence, that a new trial should have been granted because of certain newspaper articles bearing upon the case, and that the amount of the verdict and judgment are excessive.

Appellant’s contention is that the accident was not caused by any negligence on the part of the employes of the appellant, but was the result of a negligent act of the driver of the wagon carrying the water pipes. These were projecting some feet beyond the rear of his wagon, when the driver, as it is claimed, suddenly turned his team to the eastward to get out of the north-bound tracks, along which he was then proceeding parallel"with the south-bound train. The result of this turn was to swing the rear of his wagon westward and thus to thrust the projecting water pipes into the side of the open trailer car, striking appellee and causing injuries complained of. That the accident occurred in this manner, both sides agree, and appellant’s claim is that it is thus shown to have been due to the tortious act of the driver of the wagon, a cause beyond the control of the carrier. It is urged therefore that the evidence of appellee does not make out a prima facie case sufficient to throw the burden upon the carrier of showing that it was not guilty of negligence and that the burden is upon the plaintiff to show facts from which negligence of the carrier may he presumed. In Chicago City Ry. Co. v. Rood, 163 Ill. 477-483, it is said: “It is reasonable that a presumption of negligence should arise against the carrier in cases where the cause of the accident is under its control, because it has in its possession the almost exclusive means of knowing what occasioned the injury and of explaining how it occurred, while the injured party is generally ignorant of the facts. But where the cause of the accident is outside of and beyond any of the instrumentalities under the control of the carrier, its means of knowledge may not be and are not necessarily better than those of the passenger.” As in that case so in the case at bar, “plaintiff’s proof was equally consistent with the absence as with the existence of negligence on the part of appellant,” and the burden of proof was upon appellee to produce evidence that appellant was guilty of negligence causing the injury complained of. The first of the witnesses on this point testifying in behalf of appellee was a lady sitting next to her on the same seat. She testifies that “the long pipes were extending out from the back of the wagon and the car was going along, and in a few moments there was a jolt and the pipes came in collision with the car. That is all I know.” Another of appellee’s witnesses was riding backward, having a newspaper, and not paying any attention until she heard the crash when the pipes came in contact with the outside of the car. Appellee herself “was busy in deep thought,” “did not look on the east side where the accident occurred,” heard a crash and was struck by the pipes. Up to that time she had not seen the pipes hut was “looking in the opposite direction.” The remaining witness in appellee’s behalf, who testifies as to the manner in which the accident happened, was a man who was sitting on the same seat with appellee, in the second seat west of her, there being one person between them. He saw the wagon containing the pipes on the south-bound track ahead of the cable train. His statement is that the motorman “rung a bell or slowed up, and the wagon turned out of the south-bound track over onto the north-bound track, and it seems to me he went to swing on the northbound track to the side of the pavement;” that the train was running “just about a moderate speed * * * which was not very fast;” that it “slackened up and practically stopped to allow this wagon to get out of the track. The speed was very slow. After the wagon had left the track it was slow. After that it seemed to me the wagon pulled over to the curbstone.” He says there was more than one pipe and. they were projecting from the wagon “four feet or even longer.” On cross-examination he says he thinks that after the team and wagon “got straightened out onto the north-bound track they made another turn to the east.” Then the following occurred:

“Q. Yes, that is your best recollection.
A. Now wait a moment. I won’t—I will correct— I do not know whether they went a little ways in this track, or whether this was one continuous turning at the same time from the one track to the other and then from that track to the other. I do not think they went—
Q. Well I understood you on direct to say, when you were telling the jury how it happened, that they went over onto the north-bound track and then went along another ways and then made another turn to get over on to the east side of the street.
A. Well I will correct that statement now after due thought. I think they may have went a trifle, but I think it was all in one object, all the entire—”

Subsequent questions and answers were as follows:

“Q. After they got onto the north-bound track, did the wheels get into the north-bound track?
A. Yes, sir, they did.
Q. Yes and the horses?
A. Yes and the horses.
Q. Now they went some little distance, no matter how short it was, south, didn’t they?
A. Yes.
Q. And then he turned them again to the east over into the space between the curbstone and the northbound track?
A. Yes.”

The witness further says that it “was at that turn, at that swing of the wagon that the pipes began to come around. I think the motorman was going all the while just slow. The front grip of the train went by • without hitting anything and that all happened before the pipes began to turn in.”

It is evident from the testimony of this witness that he is not certain how far the wagon proceeded southward in the north-bound tracks parallel with the track upon which the train was slowly moving southward, before the driver made the second turn to the east which caused the accident. It was far enough to allow the grip car to get by safely. The driver of the wagon states that after he turned into the northbound track he drove south on the north-bound track some fifty or sixty feet before he made the second turn. It is undisputed that a considerable portion of the train had passed the wagon safely before the-pipes swung into the trailer. The turn therefore could not have been continuous from the south-bound track to the north-bound and from that track to the eastward, whatever a witness may conjecture the driver’s object to have been. The question is what he did, and his object can be disclosed only by his acts. The testimony in behalf of appellee shows that the gripman was exercising caution, that the train was “all the time” proceeding very slowly. On the part of appellant the gripman testifies that he was about opposite the driver of the wagon when he saw the driver “give his horses another pull to the east,” that he was still ringing Ms gong and that he “hollered at him and pnt my brakes on,” after wMch his ear ran from nine to eleven feet; that the driver did not make “one continuous turn,” that the train “went fifty or sixty feet, something like that,” between the time he (the driver) made Ms first and second turn. We are compelled to conclude that the evidence in behalf of appellee tends to show the accident was due to the conduct of the driver of the wagon in making a turn to get out of the north-bound track at a time when the cable train was proceeding along abreast of him with the gong ringing and with entire safety both to the train and the wagon. As said in Chicago City Ry. Co. v. Rood, supra, “the presumption that the accident was unavoidable was as reasonable as that it was due to appellant’s negligence.” The burden of proof was clearly upon appellee to produce evidence tending to show that the accident was caused by negligence of appellant’s servants in the operation of the train, and such evidence must consist of something more than conjecture or speculation. It appears that the driver of the wagon did nothing after getting out of the south-bound track and into the north-bound track to indicate an intention on his part to make another turn until he actually began to do so. It seems not to be disputed that then the gripman immediately put on the brakes to stop the train. There is no evidence tending satisfactorily to support the theory that the gripman was not warranted in the exercise of due care to believe that it was safe for him to proceed on his way slowly and carefully, as he seems from the undisputed evidence to have done.

In view of the conclusions stated it is not necessary to consider other objections. For the reasons indicated the judgment of the Superior Court must be ' reversed with a finding of facts.

Reversed with finding of facts.


text:
    C. C. Thomas, Defendant in Error, v. Joseph Rushoch, Plaintiff in Error.
    Gen. No. 14,607.
    Appeals and errors—When finding of court set aside. If It does not appear that the preponderance of the evidence was in favor of the plaintiff, the finding by the court in his favor will be set aside on review.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Michael F. Girten, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed October 25, 1909.
    Frank Foster, for plaintiff in error.
    Graham & Rowan, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action of assumpsit brought by plaintiff —defendant in error here—to recover payments claimed to be due on an alleged contract, by the terms of which the plaintiff, a doctor, was to treat the defendant—plaintiff in error here—for a period of two years and the latter was to pay him $160 in monthly installments of $20 a month for eight months. Defendant paid the plaintiff $80. Under this alleged verbal contract the plaintiff sued to recover $30 alleged to be due plaintiff at the time the suit was brought, and obtained judgment accordingly, from which this writ of error is prosecuted.

The defendant denies the contract and contends that if such alleged contract had been made an action could not be maintained upon it to recover merely installments, since the contract if so made would be entire, and that such alleged contract by its terms was not to be performed within a year and is therefore obnoxious to the statute of frauds.

The evidence as to the contract is fojmd in the testimony of the respective parties. The plaintiff’s version is that the defendant came to him to be treated for a venereal disease on June 28, 1907, and that plaintiff agreed to treat him for that particular disease for $40, which the defendant paid; that on August 1st the defendant showed evidence of syphilis and plaintiff told him he would need additional treatment extending over a period of two years, which would cost the defendant $160; that defendant agreed to pay this-, $10 in August and $20 a month after that, until the sum was paid; that $80 had been paid upon this last agreement, when defendant ceased coming for treatment in December, 1907; that defendant was practically cured at that time so far as outward appearances go, only that it would be necessary for him to continue the treatment for the full period to get the disease out of his system; that $30 was due at the time the suit was brought and that defendant owed him altogether $80.

The defendant is a laboring man working for the Illinois Steel Company. He testifies that he paid the original $40 and was told by the plaintiff in August, 1907, that he had syphilis and would have to pay more money; that he paid $10 and on pay day September 1st following paid $10 more and then told plaintiff that it was too much to pay $10 every pay day; that plaintiff told him he would treat him two years for $160, to which defendant said “No, I might want to leave the city and then I would have to go to another doctor,” to which plaintiff replied that “if I left the city he would send the medicine to me. I said maybe we will make a contract some time. I did not tell bim I would pay him $160.” It appears from testimony of plaintiff in rebuttal that when defendant ceased" coming for treatment on December 15,1907, the plaintiff tried to look him up, but did not see him again “until I had his wages stopped by a garnishment demand. Then he came to me and denied that he made the contract.”

The statement of facts contained in the abstract states that “the -court held that there was a contract against the contention of the defendant, that the evidence did not preponderate in favor of the plaintiff and that no contract was proved,” and “held that on the contract the plaintiff could recover the payments due at the time of beginning suit,” and therefore rendered the judgment for $30.

It is evident that there is no preponderance of the evidence in plaintiff’s favor as to the making of a contract such as is claimed. The defendant denies it and his testimony is in no way discredited. We are of opinion that the trial court erred in holding that the evidence preponderated in favor of the plaintiff that there was a contract.

The defendant had paid $80 for the treatment he had received and had a right so far as appears to discontinue the treatment whenever he should see fit. There is no evidence tending to show that the $80 paid was not the full value of the service rendered and the treatment received, and the plaintiff was not entitled so far as the evidence tends to show to demand more.

The judgment of the Municipal Court will be reversed and judgment with costs will be entered here in favor of the defendant.

Reversed and judgment here.


author: Mr. Presiding Justice Baume

text:
    Ada Cushing et al., Appellees, v. Angelo N. Poli et al., Appellants.
    1. Dramshop Act—when joint and several judgment appropriate. The evidence establishing liability, there is no reason which precludes a joint and several judgment against a partnership and an individual.
    2. Evidence—what not proper cross-examination. The subject not being inquired upon on direct examination, it is improper upon cross to permit a witness to testify as to the habits of intoxication of the plaintiff prior to the injury.
    3. Evidence—what essential to save question of competency. In order to save for review the question of the competency of the evidence admitted, an objection must have been made thereto and an exception saved to the adverse ruling of the court.
    4. Instructions—when upon law of proximate cause properly refused. An instruction is properly refused, which tells the jury that in order to hold a defendant charged with negligence resulting in an injury he must have foreseen the particular injury and the particular manner of its occurrence.
    Trespass on the case. Appeal from the Circuit Court of Christian county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed on remittitur.
    Opinion filed October 25, 1909.
    Remittitur filed October 28, 1909.
    Hogar & Wallace, Riteus M. Potts, Alfred Adams and Roy A. Nutt, for appellants.

      Frank P. Brennan, M. J. Fitzgerald and J. A. Merry, for appellees.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit under the Dramshop Act, by Ada Cushing, the wife of Charles Cushing, and G-len, Lyle and Helen Cushing, his minor children, by Ada Cushing their next friend, against Angelo N. Poli, James Higgins, Maud Diebert, Edward Biller and E. B. Tolliver, partners doing business as Biller & Tolliver, keepers of dramshops, and Edward C. Leisy and Edward Biller, owners of buildings where certain of said dram-shops were kept, to recover damages to their means of support by reason of the intoxication of Charles Cushing, caused in whole or in part by the sale or gift of intoxicating liquors to him by said dramshop keepers. The suit was dismissed as to the defendant Maud Diebert and upon a trial by jury against the other defendants there was a verdict and judgment against them for $3000.

On August 16, 1907, Charles Cushing, of the age of about 35 years, resided with his family at Blue Mound and had been engaged for some years in the employment of coal mining, tile ditching and other like work. Some time prior to the above date Cushing obtained work in a coal mine at Stonington, a distance of eight or ten miles from Blue Mound, but continued to reside at Blue Mound, going to and returning from his work at Stonington by passenger train. On the day named Cushing left Blue Mound about seven o’clock in the morning and arrived at Stonington a feW minutes later where he worked' in the coal mine until about two or three o’clock in the afternoon, when he received his pay. Thereafter, he frequented the saloons kept by the defendants, dramshop keepers, where he drank intoxicating liquors to such an extent that he became intoxicated and staggered and reeled upon the streets. While in such intoxicated condition he boarded the passenger train which left Stonington about eight o’clock in the evening for Blue Mound. The evidence tends to show that Cushing in all probability rode upon the “blind baggage” or some other part of the train not intended for passengers. Upon] the arrival of the train in Blue Mound Cushing was found lying upon the ground near the middle of the mail car on the opposite side of the track from the depot, with his left foot so mangled and crushed that amputation was necessary above the ankle.

It is first urged that there can be no recovery against the defendant Edward C. Leisy, as the owner of the building in which the defendant Angelo N. Poli conducted a dramshop, because there is no evidence in the record tending to show that said Leisy rented said premises to be occupied as a dramshop with knowledge that intoxicating liquors were to be sold therein or that he knowingly permitted intoxicating liquors to be sold there. Counsel for defendants are in error respecting the evidence upon that question. Proof was made by the plaintiff of the ownership by Leisy of the building in which the defendant Poli conducted a dram-shop. It further appears from the evidence that the defendant Leisy was the secretary of the Leisy Brewing Company and that Poli paid the rent for said building to one Reeling, who was the agent of said Leisy Brewing Company. We think proof of these facts was sufficient to warrant a finding against the defendant Leisy.

It is next urged that there can be no recovery against the defendant Edward Diller, individually, as owner of the building in which the firm of Diller & Tolliver conducted a dramshop. It is not now necessary to determine whether if a recovery was sought against Diller, individually, as a keeper of a dramshop, a recovery could also be had against him as the owner of the building in which such dramshop was conducted. The defendant co-partnership of Diller & Tolliver, who conducted the dramshop, is a separate and distinct entity from the defendant Diller, individually, and no reason exists why a recovery may not be had against such co-partnership and! the defendant Diller jointly and severally. The trial court therefore committed no error in refusing to direct a verdict as to the defendants Leisy and Diller.

Complaint is made of the refusal of the court to permit the witness Moreton to testify upon his cross-examination as to the habits of intoxication of Cushing prior to his injury. Such inquiry was not proper cross-examination of the witness and there was no error in the ruling.

It is uged that the plaintiff Ada Cushing was improperly permitted to testify that she supported the family after her husband was injured and that she occasionally borrowed money from different parties for her support. No objection or exception was made to this line of examination and the competency of such evidence is not properly before us for determination.

The objection to the first instruction given at the instance of the plaintiffs is purely hypercritical. The insistence that the injury to Charles Cushing is not permanent and does not tend to diminish his earning capacity is palpably fallacious. As one of the series of instructions given in the case the instruction was neither erroneous nor misleading. The third instruction tendered by defendants and refused by the court was properly refused because it limits the issue of proximate cause to the fact that Cushing chose to ride upon the train at the “blind baggage” or at some place other than in the passenger coach. The evidence tends to show that Cushing was injured because of his inability, by reason of his intoxication, to properly alight from the train- when it arrived at Blue Mound. The fourth instruction offered by defendants was properly refused. It is not the law of proximate cause in such cases that in order to hold a defendant liable he must have foreseen the particular injury and the particular - manner of its occurrence. The fifth and sixth instructions tendered by the defendants and refused by the court were sufficiently covered by the fifteenth and sixteenth instructions given at the instance of the defendants.

The only other question in the case which we deem it necessary to consider relates to the amount of the verdict and judgment. The evidence discloses that Cushing was prevented by his injury from engaging in any employment for a period of about seven months or until March, 1908, since which time he has worked as a tile ditcher and coal miner almost continuously, but has lacked the ability, by reason of his injury, to work as efficiently or at such hard labor as formerly; that his earnings since his injury have not been appreciably less than they were prior to his injury; that both before and since his injury he was frequently intoxicated; that his habit in that respect interfered with his ability and disposition to work and that he spent a considerable portion of bis earnings, which should have gone towards the support of his family, for intoxicating liquors. We are fully persuaded that in fixing the amount of their verdict at $3000, the jury must have been influenced in part by considerations which affected Cusbing solely, such as the character and permanency of his injury and the pain and suffering necessarily incident thereto. Eliminating these improper elements we think that under the evidence the sum of $1500 is ample compensation to the plaintiffs for the injury suffered by them in their means of support. If within twenty days plaintiffs will remit $1500 from the judgment the •same will be affirmed for that amount, otherwise the judgment will be reversed and the cause remanded.

Affirmed upon remittitur.

Remittitur filed and judgment affirmed October 25, 1909.


text:
    People of the State of Illinois, Defendant in Error, v. George Kizer, Plaintiff in Error.
    1. Decrees—effect of entry by judge de facto. A judgment or decree by a judge de facto with color of right to perform the duties of such office, will be held valid where it concerns the public or the rights of third parties who have an interest in the same.
    2. Decrees—when not void. A decree rendered by a court of chancery in a case with respect to which it has jurisdiction of the subject-matter, is not void as between the parties, although it may have been rendered in violation of the rules and practice of courts of chancery.
    3. Chancery—upon what jurisdiction depends. The jurisdiction of a court of chancery is the power which it has to hear and determine the subject-matter in controversy between the parties to a suit, but jurisdiction as thus defined does not simply mean jurisdiction of a particular ease but jurisdiction of the class of cases to which the particular case belongs.
    4. Chancery—what does not exclude jurisdiction of subject-matter. If a court of chancery has jurisdiction of the subject-matter of a class of cases the fact that such jurisdiction may be invoked in a particular case by a party not entitled to avail of such jurisdiction, presents a question of practice and procedure rather than one of jurisdiction.
    5. Nuisances—what does not exclude jurisdiction of chancery. The court having jurisdiction to declare and abate a nuisance, is not deprived of such jurisdiction merely because the maintenance of such nuisance constitutes a criminal or statutory offense.
    6. Contempt—when civil. A contempt which arises from the violation of an order of court entered in a proceeding in chancery is a civil contempt with respect to which a court of equity has authority to hear evidence offered by the respective parties upon the issues made by the petition or information; a sworn answer by the respondent denying the allegations of such petition or information, does not, in such a case, entitle him to a discharge.
    Contempt proceeding. Error to the City Court of Mattoon; the Hon. James W. Craig, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    Emery Andrews and John S. Hall, for plaintiff in error.
    James Vause, Jr., for defendant in error.'
   Mr. Presiding Justice Baume

delivered the opinion of the court.

On September 11, 1908, the city of Mattoon filed its bill in equity in the City Court of said city alleging that it was a duly incorporated city under the laws of Illinois and that said city was anti-saloon territory; that George Kizer was the owner of a building known as No. 1406 Broadway avenue in said city, and that said George Kizer together with John and David Kizer were in possession of the same and were then and for more than three months last past had been conducting therein a pretended soft drink establishment and poolroom, where idle and vicious persons congregated on Sunday as well as other days of the week and remained therein at unreasonable and unseasonable hours of the night; that then and for more than three months last past, said persons were and had been repeatedly and continuously engaged in the selling of intoxicating liquors in said building and that they intended to so continue the illegal selling of intoxicating liquors; that the continuation of the said place and business as alleged had resulted in irreparable injury to the complainant in that the standard of its citizenship had been lowered, contempt for the law and the court engendered, its youthful inh abitants debauched, enticed and lured away from their lawful and profitable pursuits and educated in evil and-dissolute habits; that the reputation of complainant for non-enforcement of law and order would check its growth and development, by keeping and driving away law-abiding people desiring to become residents thereof and by making it a center for the congregation of disorderly and undesirable persons, thereby increasing the burdens of police protection to life and property; that as a result of the business carried on in said building by the said defendants the property of its citizens in the vicinity of said building had depreciated in value for residence and business purposes; that said building and business ás so carried on by defendants was a common nuisance violative of the rights of its citizens and working irreparable injury in their trade and business and the depreciation of the value of their property; that all attempts to suppress and abate said nuisance by prosecution had proven ineffective and resulted in a miscarriage of justice. The bill prays for a temporary and permanent injunction restraining the said defendants from further continuing the sale of intoxicating liquors in said building and that upon a final hearing said building may be declared to be a common nuisance and abated as such until said defendants shall give bond with sufficient security to be approved by the court in the penal sum of $1000, payable to the people of the State of Illinois conditioned that they or either of them will not sell intoxicating liquors contrary to law át and within said building and will pay all fines, costs, etc. The bill was dismissed as to the defendant David 'Kizer, and on September 21, 1908, defendants George Kizer and John Kizer entered their appearance in said cause in writing, as follows:

“Now comes George Kizer and John Kizer, each in his own proper person, and enters his appearance in the above entitled cause to the September term of said court, 1908, and confesses each for himself the truth of the matters and things alleged and set forth in the bill for iujunetion filed in the above-entitled cause and hereby consents and agrees that the court may enter a decree in accordance with the prayer of said bill and waives the right to appeal or sue out a writ of error or to in any other manner question the. jurisdiction of the court to enter the decree in accordance with the prayer of said bill.

G. A. Kizer,

John Kizer. ’ ’

Thereupon the court entered a decree enjoining the defendants George and John Kizer from selling or giving away intoxicating liquors at and within said building as long as said complainant remained anti-saloon territory. "" ..........

On October 31, 1908, an information was filed in the City Court of the said city of Mattoon in the name of the People of the State of Illinois., which information after setting forth the proceedings relating to said bill for injunction and the decree of the court therein, averred that the defendant, George Kizer, did, on, to-wit, the 27th day of October, 1908, between the hours of seven and eight o’clock p. m. sell intoxicating liquors at or within the building or room known as No. 1406 Broadway avenue in said city of Mattoon in violation and in defiance of the decree theretofore entered in said injunction proceedings and prayed that the said defendant be forthwith attached and brought into court to show cause why he should not be punished for contempt in so violating said decree. On November 2, 1908, the said defendant filed his sworn answer to said information, wherein among other things he averred that he did not at the time and place mentioned in said information sell or give away any intoxicating liquors to any person or persons whomsoever. After hearing the testimony of witnesses called on behalf of the people and of the said defendant the court adjudged said defendant to be guilty of contempt in wilfully violating the said injunction, and further ordered that said defendant pay his fine to the People of the State of Illinois in the sum of $1000 to be paid on or before November 12,1908, together with the costs of the proceeding, and that he be imprisoned in the county jail of Coles county for the period of forty days, commencing November 12, 1908. This writ of error is prosecuted by said defendant to reverse said order and judgment of the trial court.

The record discloses that the Hon. Horace S. Clark, judge of the City Court of the city of Mattoon, died April 16, 1907, and that the September and November terms 1908 of said City Court, being the terms respectively at which the decree for injunction heretofore mentioned was entered and the hearing upon the proceeding by information for contempt was had and judgment entered therein, were presided over by Hon. James W. Craig, one of the judges of the Fifth judicial circuit, in pursuance of written requests by the clerk of said City Court directed to the said Hon. James W. Craig to preside as judge of said court at said terms thereof. It is first urged that the Hon. James W. Craig had no lawful authority to hold the September and November terms 1908, of the City Court of Mattoon, and that he therefore had no lawful authority to enter the decree in the injunction proceeding and to enter judgment against the defendant in the proceeding for contempt, because a sufficient length of time had elapsed since the death of Judge Clark within which the vacancy caused by his death could have been filled at a special election called by the city council of said city of Mattoon, and because the provision of the statute authorizing the clerk of any City Court-in case of the death, removal, resignation or disability of a judge of any such court to select and call in any judge of any Circuit, Superior, County or Probate Court to exercise the authority and perform the duties of a judge- of such City Court, does not contemplate the selection of such judge by said clerk after a sufficient length of time has elapsed for the election of a judge of the City Court, or where the unexpired term of such judge does not exceed one year, for the appointment of his successor by the Governor. It is not necessary to determine whether the selection of Judge Craig by the clerk of the City Court of the city of Mattoon as provided by section 90 of the Practice Act constituted him a judge de jure of said City Court. Judge Craig was acting at least as a judge de facto of said City Court with color of right to perform the duties of such office and any judgments or decrees entered by him in that capacity must be held to be valid where they concern the public or the rights of third parties who have an interest in the same. Leach v. People, 122 Ill. 420; People v. Bangs, 24 Ill. 184; People v. Knopf, 183 Ill. 410; People v. Lieb, 85 Ill. 484.

It is next insisted that the city of Mattoon had no power or authority to invoke the aid of a court of equity in the proceeding for an injunction and that the City Court of Mattoon was therefore without jurisdiction to hear and determine the contempt proceeding, which is based upon the decree entered in said proceeding in equity, and further, that the city of Mattoon did not have any such interest in the subject-matter of the said proceeding in equity as gave that court any power to enter a decree therein. This insistence is predicated upon the absence of an ordinance of the city of Mattoon declaring a place where intoxicating liquors should be sold or given away in violation of law to be a nuisance and providing for the abatement of such nuisance. Section 14 of the Act relating to anti-saloon territory (Rev. Stat. 1908, 896) provides that all places where intoxicating liquor is sold in violation of any provision of said act shall be taken and held and are declared to be common nuisances and may be abated as such. It is conceded by counsel for plaintiff in error that a court of equity has jurisdiction to enjoin and abate nuisances, but for the reasons urged it is claimed that the City Court of Mattoon was without jurisdiction to enjoin plaintiff in error from continuing the unlawful sale or giving away of intoxicating liquors in the building designated in the bill and to declare and abate the same as a nuisance and that the decree of said court in that respect is wholly void. Jurisdiction is the power to hear and determine the subject-matter in controversy between the parties to a suit, and jurisdiction as thus defined does not mean simply jurisdiction of a particular case but jurisdiction of the class of cases to which the particular case belongs. Whether a complaint does or does not state a cause of action, is, so far as concerns the question of jurisdiction, of no importance, for if it states a case over which the authority of the court extends, then jurisdiction attaches and the court has power to decide whether the pleading is good or had. O ’Brien v. The People, 216 Ill. 354.

If the sufficiency of the bill for injunction in the proceeding in equity had been then questioned by demurrer upon the ground that there was a want of proper parties, or that there was an adequate remedy at law, or that the bill improperly sought to enjoin the commission of a criminal offense, such demurrer might properly have been sustained, but the defendants named in said bill not only confessed all of its allegations but expressly consented that the decree now sought to be held invalid should be entered in the case. Where a bill shows upon its face want of interest or capacity to sue, the proper method of taking advantage of such defect is by demurrer. The mere fact that there was a defect of parties did not deprive the court of jurisdiction to hear and determine the question involved so as to render the order granting the injunction void and justify the plaintiff in error in wilfully violating the same. In such a case a decree, although rendered in violation of the rules and practice of equity, where the subject-matter of the proceeding is within the general jurisdiction of a court of equity, while it may be irregular, is not void as between the parties to it. Franklin Union v. The People, 220 Ill. 355 ; Flannery v. The People, 225 Ill. 62.

In Law v. Ware, 238 Ill. 360, it was held, that where the subject-matter of a bill of complaint belongs to that class of which a court of equity will take jurisdiction when the facts create some equitable right, or the relation of the parties renders the exercise of such jurisdiction proper, the objection that there is an adequate remedy at law must be brought to the attention of the court by demurrer or answer, to be effectual. A court of equity having jurisdiction to declare and abate a nuisance is not deprived of such jurisdiction merely because the maintenance of such nuisance constitutes a criminal or statutory offense. Minke v. Hopeman, 87 Ill. 450; Christie Street Com. Co. v. Board of Trade, 92 Ill. App. 604; Celia v. The People, 112 Ill. App. 376. Furthermore, the decree having been entered by the consent of the plaintiff in error, error cannot properly be assigned upon it. Galway v. Galway, 231 Ill. 217.

It is further urged that as the statute prescribes a method whereby the place where intoxicating liquor is sold in violation of the Act relating to anti-saloon territory may be abated following the conviction of the keeper of such place and as a part of the judgment of the court upon such conviction, the remedy thereby provided is exclusive and must be held to wholly deprive a court of equity of jurisdiction to declare and abate such place as a nuisance. The remedy provided by the Act in question for abating such nuisance is no more exclusive than the remedy provided by the Criminal Code for the conviction and punishment of persons guilty of committing or maintaining certain nuisances, whereby, when a conviction thereof is had in a court of record, the same may by order of the court be abated by the sheriff or other proper officer at the expense of the defendant. Rev. Stat. 1908, chap. 38, sec. 222, p. 757. The rule, therefore, that a court of equity has jurisdiction to declare and abate a nuisance notwithstanding the fact that the existence of such nuisance may render the person maintaining the same liable to- conviction and punishment under the Criminal Code, is as applicable in the case at bar as it is in any other case involving a nuisance the maintenance of which may be punishable under the Criminal Code. The objection amounts to nothing more than that the complainant had an adequate remedy at law, which objection plaintiff in error is precluded from urging for the reason heretofore stated.

Plaintiff in error insists that the contempt here involved is a criminal and not a civil contempt and that upon the filing of his sworn answer purporting to deny the truth of the matters alleged in the information or petition he was entitled to be discharged. An exhaustive discussion and review of the authorities relating to the distinction between criminal and civil contempt will be found in Hake v. People, 230 Ill. 174. It is there held that where the proceeding is in a court of equity the contempt is civil and is punished as an incident to the enforcement of orders and1 decrees made in furtherance of the remedy sought. The contempt in the case at bar arises from the alleged violation by plaintiff in error of the order of a court entered in a proceeding in equity and is clearly a civil contempt wherein a court is authorized to hear evidence offered by the respective parties upon the issues made by the petition or information. In each of the cases of O’Brien v. The People, 216 Ill. 354; Franklin Union v. The People, 220 Ill. 355; Flannery v. The People, 225 Ill. 62; Hake v. The People, 230 Ill. 174, and Barnes v. Typographical Union, 232 Ill. 402, which involve the violation by certain persons of so called ‘ ‘ strike injunctions,” the contempt proceedings were held to be civil and not criminal, and the practice and procedure applicable to civil contempts, prevailed. Conceding that the sworn answer filed by the plaintiff in error constituted a full denial of the facts alleged in the information or petition, it did not operate to purge him of the alleged contempt and the court properly heard the evidence of witnesses for the purpose of determining that question.

It is next urged that the finding of the court is against the manifest weight of the evidence in the record: As in all cases of like character the evidence as to whether or not plaintiff in error sold intoxicating liquors at the place in question is conflicting. A careful examination of the record satisfies us that the conclusion of the chancellor, who saw and heard the several witnesses testify, should not be set aside as being clearly unauthorized. Two witnesses testified positively that they purchased whisky from plaintiff in error in his place of business, while four or five persons, one an employe of the plaintiff in error and the others almost constant habitues of his- place, testified that plaintiff in error did not sell such whisky or that they did not see any such sale. Considering all of the facts and circumstances disclosed by the evidence we are disposed to think that the finding of the chancellor was fully warranted.

It is finally insisted that the punishment imposed upon plaintiff in error of a fine of $1000 and imprisonment in the county jail for forty days is so excessive and cruel that the judgment of the court should be reversed and in support of this insistence our attention is directed to the fact that the maximum penalty provided by the Act relating to anti-saloon territory for maintaining the nuisance in .question, is a fine of $100, and confinement in the county jail for fifty days. In Hake v. People, 230 Ill. 174, where the same contention was under consideration, it was held, that criminal statutes which imposed punishment for like offenses had no application to a case such as the one at bar, and that a court of chancery may impose a fine alone for the violation of an injunction and commit the person until the fine and costs are paid, or, in its discretion, may fix a definite period of imprisonment, either with or without a fine. "While courts of appellate jurisdiction are exceedingly adverse to interfering with the sound judicial discretion vested in a court of chancery, as to the extent of the punishment to be inflicted for contempt, yet, where it appears that such discretion has been arbitrarily and oppressively exercised, and the ■ punishment inflicted is so manifestly and grossly excessive as to shock the sense of justice and propriety, it is the plain duty of courts having appellate jurisdiction to interfere by setting the same aside. ■ A majority of the court are compelled to the conclusion that the punishment inflicted upon the plaintiff in error is so grossly excessive, oppressive and1 disproportionate as to demand interference in it’s execution.

The judgment of the City Court will, therefore, be reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. James Whalen, Plaintiff in Error.
    1. Appeals and errors—what'must be preserved by bill of exceptions. A motion to quash an information, the overruling thereof and the exception thereto, must be preserved by bill of exceptions in order that the question raised by such motion may be subject to review.
    2. Evidence—when general objection insufficient. If proof of a plea of guilty is made by evidence other than the record thereof, a specific objection is essential to save the question of the competency of the evidence offered.
    3. Dramshop Act—what competent in prosecution for unlawfully selling intoxicating liquor. In a prosecution for the unlawful selling of intoxicating liquor within the limits of a city it is competent to show that the defendant had been charged by information with the keeping of a place where intoxicating liquor was unlawfully sold and that to such information he had pleaded guilty.
    4. Instructions—when in language of statute proper. In a prosecution for the unlawful selling of intoxicating liquor within the limits of a city, an instruction in the precise language of the statute is proper which tells the jury “that the words ‘intoxicating liquor’ shall include all distilled, spirituous, vinous, fermented and malt liquor.”
    5. Instructions—as to credibility of detectives. The weight to be given to the testimony of detectives is purely a question for the jury and the test to be applied in determining the credit to be given to the testimony of such witnesses is the same as that applicable to the testimony of other witnesses in a case, namely, motive, relationship, interest, employment, apparent fairness or unfairness, partiality or impartiality, manner of testifying, apparent intelligence or lack of intelligence, the reasonableness or unreasonableness of the testimony, together with all the surrounding circumstances appearing in evidence.
    6. Instructions—must not single out particular witnesses. An instruction which singles out the testimony of two particular witnesses is erroneous.
    7. Instructions—when erroneous will not reverse in criminal case. Notwithstanding instructions given in a criminal case are subject to just criticism, yet their giving will not reverse where the verdict of guilty which was rendered is clearly established by the evidence.
    Proceeding by information. Error to the County Court of Macon county; the Hon.' O. W. Smith, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.

      Whitley & Fitzgerald, for plaintiff in error.
    W. E. Redmon, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The information in this case contains- nine counts of which the counts one to eight inclusive charge that plaintiff in error and one Thomas Whalen did on the several days therein named unlawfully sell intoxicating liquor .within the limits of the town of D'ecatur, the said town of Decatur being then and there anti-sáloon territory, and the ninth count charges that said persons on February 22, 1909, did unlawfully keep within the limits of the said town of Decatur a place where intoxicating liquors were sold, said place being known and described as No. 541 Front street in the city of Decatur. Upon a trial by jury plaintiff in error was found guilty under the ninth count of said information and was adjudged to pay a fine of $100 and imprisoned in the county jail for 20 days, and as a part of the judgment of the court it was ordered that the place designated in said ninth count of the information be shut up and abated until plaintiff in error give bond in the penal sum of $1000 conditioned as provided by státute. The motion of plaintiff in error to quash the ninth count of the information, the overruling of such motion and the exception thereto, if any such action was had, does not appear in the bill of exceptions and is, therefore, not properly subject to review.

Over the objection of plaintiff in error that the same was incompetent and immaterial the prosecution ¡was permitted to introduce in evidence an information filed in the county court of Macon county on October 27, 1908, charging plaintiff in error and one R. M. Wiggins with unlawfully selling intoxicating liquor in the town of Decatur, the same being anti-saloon territory, on October 26, 1908, together with the parol evidence of the fact that plaintiff in error had entered his plea of guilty to such information. Such evidence was admitted to be considered by the jury not as proof of the unlawful sale of intoxicating liquor as charged in the •'first eight counts of the information but solely for the purpose of showing that plaintiff in error did unlawfully keep a place within the limits of the town of Decatur where intoxicating liquors were sold as charged in the ninth count of the information. It is now urged that the introduction in evidence of such information was calculated to arouse the prejudice of the jury against plaintiff in error as it tended to prove the commission by plaintff in error of a separate and distinct offense than the one for which he was on trial under the second information, and further that if proof of such information and the fact that plaintiff in error entered his plea of guilty thereto was competent for any purpose, such plea of guilty could only properly be shown by the record and not by parol testimony. If plaintiff in error had made the specific objection that his plea of guilty to such information could only properly be shown by the record, such objection might have been avoided upon the trial, but the general objection then made did not raise the question and such question cannot be raised for the first time in this court. Rich v. Trustees, 158 Ill. 242 ; Merchants and Farmers State Bank v. Dawdy, 230 Ill. 199. The offense of unlawfully selling intoxicating liquor is separate and distinct from the offense of keeping a place where intoxicating liquor is unlawfully sold and the prosecution and conviction of a person for the commission of one of such offenses is no bar to the prosecution and conviction of the same person for the commission of the other of such offenses. In State v. Inness, 53 Me. 536, it was' held that the conviction of a person for keeping a drinking or tippling house is no bar to his prosecution for being a common seller of intoxicating liquor. The same principle is announced in Commonwealth v. Cutler, 9 Allen (Mass.) 486, and Commonwealth v. Bubser, 14 Gray (Mass.) 83. The first information to which plaintiff in error entered his plea of guilty charged him with the single offense of unlawfully selling intoxicating liquor and his conviction thereunder constituted no bar to bis conviction of the offense of keeping a place where intoxicating liquor was unlawfully sold. For the limited purpose for which the first information and the plea of guilty thereto by plaintiff in error was offered in evidence under the ninth count of the information on trial, such evidence was competent as an admission by plaintiff in error tending to show that he was keeping a place where intoxicating liquor was unlawfully sold as charged in said count of the information. That such evidence was wholly disregarded by the jury as having any bearing upon the guilt of plaintiff in error of the offense of unlawfully selling intoxicating liquor is manifest from the fact that their verdict amounted to an acquittal of plaintiff in error of such offense as charged in the first eight counts of the information. The offer of plaintiff in error to make proof of the circumstances under which he entered his plea of guilty to the first information was properly rejected. The judgment of conviction following his plea of guilty to said information was conclusive against plaintiff in error of his guilt of the offense therein charged.

It is next urged that the trial court erred in permitting the introduction in evidence of the United States Internal Revenue special tax stamp1 which was issued to plaintiff in error and posted by him in his place of business, because the admission of the same operated to change the established rules of evidence in criminal cases. The contention of plaintiff in error in this regard is fully refuted in People v. McBride, 234 Ill. 146.

The first instruction given at the instance of the prosecution informed the jury “that the words ‘intoxicating liquor’ shall include all distilled, spirituous, vinous, fermented and malt liquor. ’ ’ This instruction is in the precise language of the statute and was not improperly given. Danley v. Hibbard, 222 Ill. 88; Reisch v. People, 229 Ill. 574; Mertens v. Southern Coal Co., 235 Ill. 540'. The objection to the third instruction given at the request of the prosecution is also disposed of upon the authority of the cases last cited. It was admitted by plaintiff in error that he gave a bottle of whisky in his place of business to one Scribner for medicinal purposes. Whether this act was a shift or device to evade the provisions of the statute was a question of fact for the jury.

The record discloses that Bourland and Runyan, two of the witnesses who testified on behalf of the prosecution, had been employed by the chief of police of the city of Decatur and a local law and order organization to secure evidence-of the alleged violation of the local option provisions of the Dramshop Act. The seventh instruction given at the instance of the prosecution informed the jury that they had no right to disregard the testimony of any witness simply because such witness may have been employed to procure evidence of the unlawful selling of intoxicating liquor, but that they should consider the evidence of such witness and weigh the same by the same rules that they did the evidence of any other witness or witnesses in the case. There is nothing in the record which suggests that the persons employed to procure the evidence mentioned instigated the commission of the offense of which plaintiff in error was charged within the rule laid down in Love v. The People, 160 Ill. 501, as is insisted by the plaintiff in error, but the relation of such persons to the transactions in question was similar to that of the witness in City of Evanston v. Myers, 172 Ill. 266, where it was held,- that one who sells intoxicating liquor in violation of the city ordinance is liable to punishment although the city furnish the money and employ the purchaser as a detective, to discover violators of the ordinance, where no fraud, or deceit was used in the purchase or any inducement offered other than a willingness to buy. It is not within the province of the court to instruct the jury that they should look upon the evidence of such persons with suspicion and that such testimony should be received by them with great caution. DeLong v. Giles, 11 Ill. App. 33. The weight to be given to the testimony of such witnesses is purely a question for the jury and the test to be applied in determining the credit to be given to the testimony of such witnesses is the same as that applicable to the testimony of other witnesses in a case, viz: motive, relationship, interest, employment, apparent fairness or unfairness, partiality or impartiality, manner of testifying, apparent intelligence or lack of intelligence, the reasonableness or unreasonableness of the testimony, together with all the surrounding circumstances appearing in evidence. Applying this rule, the instruction is not subject to the criticism made. The instruction, however, singles out the testimony of the two witnesses named and in this respect it is erroneous (People v. Campbell, 234 Ill. 391), but excluding their testimony the other evidence in the case so conclusively establishes the guilt of plaintiff in error that the instruction could not have operated to his prejudice.

The eighth instruction given at the request of the prosecution is not wholly free from criticism, but for the reasons stated we must hold that the giving of the same did not constitute reversible error. If the case was close upon the facts the giving of the instructions indicated would require a reversal of the judgment. What we have heretofore said practically disposes of the other questions raised by counsel relating to the action of the court in refusing to give certain instructions on behalf of plaintiff in error.

There is no error in the record which could have operated to the substantial prejudice of plaintiff in error and the judgment of the County Court will be affirmed. Affirmed.