author: McCulloch, P. J.

text:
    John Peyton v. John D. Shaw et al.
    1. Public highway—Presumption prom twenty years user.— The presumption arising from twenty years user of a way is not conclusive, but it may be rebutted by showing facts to overcome such presumption. (Kyle v. Town of Logan, 87 Ill. 64.)
    2. Where user por less than twenty years.—Where the user has been for a shorter period than twenty years, a dedication of the land to public use may be shown by such acts or conduct on the part of the owner as indicate an intent on his part to dedicate the same, and an acceptance thereby by the public.
    8. Lands lying in common and uninct.osed —In the case of lands lying uninclosed and in common, until circumstances induce owners to inclose, no strength of inference or conclusions can be deduced from mere travel across it by the public, without objection from the owner,
    t 4. Instruction.—An instruction that “if the public continuously use a road as a public highway for more than twenty years without interruption, interference or objection on the part of the owner of the land on which such road is located, the presumption of law is that the owner of the land has dedicated such road to the public use,” Meld, to be erroneous, in that it does hot except nninclosed and unimproved lands lying in common from the operation of the general rule.
    5. OlBCIUMSTANCES WEAKENING PRESUMPTION OP DEDICATION.—Where the lands east and west of appellant's house were vacant and unoccupied, and appellant had for many years kept the road fenced without any objection on the part of the public, and the people of the vicinity, including two of the defendants, petitioned for the new road, and the other defendants acted upon said petition and allowed appellant damages for taking his land, and upon appeal to supervisors, the action of the commissioners in laying out the road was approved. Reid, that the presumption of a dedication from twenty years public user is greatly weakened.
    Appeal from the Circuit Court of Hancock county; the Hon. J. H. Williams, Judge, presiding.
    Opinion filed July 3, 1884.
    Messrs. Hooker & Edmunds, and Messrs. Manier & Miller, for appellants;
    as to what constitutes a highway by prescription, cited Washburn on Real Property, 2d Ed. 41-48; Washburn on Easements, 131, 178; Angell on Highways, § 131; Powell v. Bagg, 8 Gray, 441; Smith v. Miller, 11 Gray, 145; Gentleman v. Soule, 32 Ill. 271; Grube v. Nichols, 36 Ill. 92; Manrose v. Parker, 90 Ill. 581; C. & N. W. Ry. Co. v. Hoag, 90 Ill. 348; Owen v. Crossett, 105 Ill. 354; Parker v. Foote, 19 Wend. 313.
    The land being open and nninclosed is a circumstance from which it might be presumed the use was permissive, especially when connected with the fact that all such lands in the vicinity were so used: Hewins v. Smith, 11 Me. 238; Lawton v. Rivers, 2 McCord, 452; Capers v. Wilson, 3 McCord, 170; Rowland v. Wolf, 1 Bai. 58; Walt v. Trapp, 2 Rich, 136; Gibson v. Durham, 3 Rich, 85; Hults v. Truesdale, 6 Rich, 396; Short v. Walton, 61 Ga. 28; Boyden v. Achenbach, 79 N. C. 539; State v. Kansas City Ry. Co., 45 Ia. 139; Angell on Highways, §151; Phipps v. State, 7 Blackf. 512.
    Mr. John H. Finlay, Mr. George J. Rogers and Messrs. Scofield & Scofield, for appellees;
    that to render the enjoyment of any easement for twenty years a presumption juris et de jure, or conclusive evidence of right, it must have been continued uninterrupted, or under claim of right with the implied acquiescence of the owner, cited 3 Kent’s Com. 442; Denning v. Roome, 6 Wend. 651; Worral v. Rhodes, 2 Whart: 427; Hill v. Crosby, 2 Pick. 466; Cuthbert v. Lawton, 3 McCord, 194; Valentine v. Boston, 22 Pick. 75; Greely v. Quinby, 2 Foster, 216; Smith v. State, 3 Zahr, 130; Hart v. Trustees, 15 Ind. 226; Onstott v. Murry, 22 Ia. 457; Ewell v. Greenwood, 26 Ia. 377.
    As to proof necessary to establish a highway by prescription: Garrett v. Jackson, 20 Penn. 331; Steffy v. Carpenter, 37 Penn. 41; Pence v. Cloud, 42 Penn. 102; Marcy v. Taylor, 19 Ill. 634; Town of Lewiston v. Proctor, 27 Ill. 414; Rees v. City of Chicago, 38 Ill. 336; People v. Comrs., 52 Ill. 498; 2 Greenleaf on Ev., § 662; Smith v. Town of Flora, 64 Ill. 93; Wragg v. Penn. Township, 94 Ill. 25; Green v. Canaan, 29 Conn. 157; State v. Atherton, 16 N. H. 203; Stevens v. Nashua, 46 N. H. 192; Conway v. Jefferson, 46 N. H. 521; Pritchard v. Atkinson, 4 N. H. 9; Hoole v. Attorney-General, 25 Ala. 190; Penquite v. Lawrence, 11 Ohio (N. S.), 274; Holcraft v. King, 25 Ind. 352; Warren v. Town of Jacksonville, 15 Ill. 236; Vail v. Mix, 74 Ill. 127.
    As to a highway being acquired over vacant and uninclosed lands: Worral v. Rhodes, 2 Whart. 427; State v. Thomas, 8 Harris, 458; Wyman v. State, 13 Wis. 663; Smith v. Lee, 14 Gray, 473; Shugart v. Haliday, 2 Bradwell, 45; Owens v. Crossett, 105 Ill. 354; Galbraith v. Littiech, 73 Ill. 209.
   McCulloch, P. J.

This was an action of trespass brought by appellant against appellees for breaking and entering his close, tearing down his fences, taking away his gates, cutting down his trees, and otherwise doing damage to his realty. The defendants interpo.sed a plea in justification of their acts that the looms in quo then was, and of right ought to have been a public highway, established by public user for twenty years, and that the same had never been vacated in pursuance of law; that plaintiff had unlawfully erected and built gates, fences and other obstructions in and upon the same, to remove which the defendants, as highway commissioners, and their servants, entered upon the premises of the plaintiff, as they lawfully might, and removed the same, doing no unnecessary damage.

It appears from the evidence that the alleged road has'been fenced up since about the year 1865 or 1869, the witnesses being not wholly agreed as to the time. Before that time the lands over which the road is now claimed to exist, at least the places where the alleged trespasses were committed, had never been inclosed. Appellant had, however, fenced other portions of his land, in close proximity to, or perhaps to the very line of the road as now claimed, leaving for a short distance a narrow lane between his fields, through which the public travel, coming from the prairie lands on the east, was accustomed to pass in going to the timber lands, and a sand bank on the west, where it also connected with a public highway.

In order to establish a highway by user for twenty years, it is necessary to go back for that period of time prior to the date when appellant fenced up the road. It appeal’s from the evidence that west of appellant’s house the road, as used by the public, ran in a southwesterly direction, but whether or not it was confined to any clearly defined track or locality does not appear very satisfactorily from the evidence. East of his house it is claimed the line of public travel ran along or very near to the section line, except at one place where the road crossed a small stream. It is clear from the evidence, however, that for many years included within the twenty next prior to the time when appellant fenced up the road and put up his gates, these lands were wild, uncultivated and uninclosed.

The right of way which the public acquires by twenty years user is in the nature of a prescription at common law, and rests upon the presumption of a dedication by the owner. In Kile v. Town of Logan, 87 Ill. 64, it was sought to make the presumption arising from twenty years user conclusive, in analogy to the operation of the Statute of Limitations; bnt^tlie Supreme Court held it not conclusive, but that it might be rebutted by showing facts to overcome such presumption.

Where the user lias been for a shorter period than twenty years, a dedication of the land to public use may be shown by such acts or conduct on the part of the owner as indicate an intent on his part to dedicate the same, and an acceptance thereof by the public. Whenever an act of dedication has taken place and the same has been accepted by the public, the right of way at onee becomes vested in the public. Where no specific act of dedication can be shown, a dedication may be inferred from such a course of conduct on the part of the owner as evinces an intent on his part to dedicate the land to the use of the public. In this connection his acquiescence in the use of his land for purposes of public travel, seeing the public authorities expending the public moneys in improving and building bridges upon it, building his fences in such a way as to not interfere with the travel upon it, and other such acts, are circumstances from which a dedication may be inferred by a jury; and when such user accompanied by such circumstances has been continued for a period of twenty years, a dedication will be presumed. Kile v. Town of Logan, 87 Ill. 64; Alvord v. Ashley, 17 Ill. 369.

But, while this is the general rule, it is also held that in case of lands lying uninclosed and in common until circumstances Induce owners to inclose,] no strength of inference or conclusions can be deduced from mere travel across it by the public without objection from the owner. Warren v. Jacksonville, 15 Ill. 236; Kile v. Town of Logan, supra; Fox v. Virgin, 5 Bradwell, 515; S. C., 11 Bradwell, 513; Harper v. Town of Dodds, 3 Bradwell, 331.

It may be true, therefore, as intimated in Owens v. Crossett, 105 Ill. 354, that the public may acquire a right of way by. prescription over uninclosed lauds, yet the proof of such prescriptive right must rest on something more than mere travel over it by the public, acquiesced in by the owner, for since no inference of a dedication can be drawn from such permissive use of the land, it is very evident that so long as the adjoining lands remain nninclosed such use could never ripen into, a prescriptive right.

The court below at the instance of the defendants gave the jury the following among other instructions:

“The court further instructs the jury, that if the public continuously use a road as a public highway for more than twenty years without interruption, interference or objection on the part of the owner of the land on which such road is located, the presumption of law is that the owner of the land has dedicated such road to the public use.”

This instruction does not conform to the principles of the decisions above cited, in that it does not except uninclosed and unimproved lands, lying in common, from the operation of the'general rule.

We forbear commenting upon the sufficiency of the evidence to establish a right of way by prescription any further than to say, that in view of the fact that the road has now been fenced up for a period of at least fourteen years, the evidence contained in this record is not at all clear and convincing.

But there is another circumstance in the case in favor of appellant which is entitled to very great weight. The defendants set up in their plea that the road in question had been established by public user for twenty years, and that appellees Shaw, Hughes and Harris, as commissioners of highways, and appellees Blake and Parker as their assistants and servants, entered upon said highway and committed the acts complained of, in removing obstructions from the same as they lawfully might. Upon the trial appellant introduced in evidence the record of a certain proceeding by the public authorities in laying out a highway over the ground in question, from which it appears that on the 15tli day of September there was filed in the office of the town clerk a petition duly signed, with proof of posting, for the laying out of a highway over the ground in question, which petition was signed by appellees Blake and Parker; that on the same day an order was made by appellees Shaw and Hughes, as commissioners of highways, granting said petition; that on the 5th day of November, in the same year, a final order was made, signed by appellees Hughes and Shaw, together with one Hartman, as commissioners, establishing said road as prayed for, and allowing appellant $196 damages for taking his land therefor; that from said order laying out said road, as well as from the order allowing him damages, appellant took an appeal to three supervisors, who affirmed the order of the commissioners in laying out the road, but made no disposition of the question of damages. Thereupon the defendants (said Harris in the meantime having come into the hoard) tendered appellant the damages assessed to him by the commissioners of highways, and gave him notice to open said road under the proceedings had before the commissioners aforesaid, which was the only notice served upon him. Appellant having failed to remove his fences, appellees proceeded to open said road, claiming the right to do so by and under the proceedings of the commissioners aforesaid, and by no other right.

These proceedings, petitioned for by two of the defendants and acted upon by the others in their official capacity as commissioners of highways, are so clearly in the nature of admissions that there was no highway in existence along the line where the new road was laid and where the alleged damage was done, as to require evidence of a very satisfactory nature to overcome them. This evidence we do not find in the record. Appellees do not claim that there ever was a road laid out along the line in question, prior to the year 1881, nor do they rely for their defense!upon any actual dedication of the land to public use other than that to be presumed from twenty-years user. This presumption is greatly weakened if not entirely overcome by the fact that the lands both east and west of appellant’s house were vacant and unoccupied. To this must be added the further fact that the appellant had for so many years kept the road fenced up without any objection on the part of the public. Then when it is further considered that the people of the vicinity, including two of the defendants, petitioned for the new road, that the other defendants acted upon said petition and allowed appellant damages for taking his land, that upon appeal to three supervisors the action of the commissioners in laying out said road was affirmed, the evidence is. almost overwhelming against the existence of any such road by prescription as is claimed. When appellant was claiming larger damages than those awarded by the commissioners, it is passing strange that some tax payer of the neighborhood did not suggest the existence of a road by prescription if there had been any such. But this idea does not seem to have occurred to any one until after the commencement of this suit, when it became apparent that appellees could not justify their acts under the proceedings for the laying out of the new road, on account of appellant’s damages not having been assessed upon his appeal. For these reasons we are of the opinion the defense set up by appellees was not sustained by the evidence. The judgment of the circuit court will be reversed and the cause remanded.

Beversed and remanded.


source: Caselaw Access Project

author: McCulloch, J.

license: Public Domain

text:
    John Newlin, Adm’r, etc., v. Joseph Bailey et al.
    1. Partner or creditor.—The court is of opinion that the written contract in this case does not constitute a contract of partnership, but that the party of the first part, not participating in a share of the losses or profits- and receiving interest semi-annually upon the amount loaned, was a creditor.
    2. Holding one’s self out as partner —Liability.—Where the evidence tended to show that a party loaning a bank §10,000, held himself out as a partner, acted as its president and took part in most of its business transactions. Held, that shouldjt appear that any of the bank's debts, contracted before such party’s death, were created under such circumstances as to hold him as a partner as to third persons, the share coming to his administrator out of the assets assigned (the officers of the hank having made-an assignment) should be subjected, as far as need be, to the payment of the balance due such creditors after receiving their pro rata dividends.
    3. Jurisdiction of county court.—For adjusting these equities a county court has as full and complete jurisdiction as a court of equity.
    Appeal from the Circuit Court of Vermilion county; the FIou. J. W. Wilkin, Judge, presiding.
    Opinion filed July 3, 1884.
    Mr. W. B. Lawrence, for appellant;
    that the contract did not constitute a contract of partnership, cited Irvin v. N. C. & St. L. Ry. Co,, 92 Ill. 108; Adams v. Funk, 53 Ill. 219; Smith v. Vanderburg, 46 Ill. 39; Price v. Alexander, 2 G. Greene (Iowa), 427; Lowry v. Brooks, 2 McCord, 421; Bailey v. Clark, 6 Pick. 372; Simpson v. Feltz, 1 McCord, Ch. 219; Heskith v. Blanchard, 4 East, 141; Elgie v. Webster, 5 M. & W. 518; Parsons on Part. (top p.) 287; Story on Part. § 18; Collyer on Part. § 264; Gow on Part. p. 9; 3 Addison on Contracts, §§ 1294, 1302.
    In probate matters, equitable claims are considered: Hurd v. Slaten, 43 Ill. 348; Garvin v. Stewart, 59 Ill. 229; Moore v. Rogers, 19 Ill. 347; Moline Water Power Co. v. Webster, 26 Ill. 233.
    Messrs. Mann, Calhoun & Frazier, for appellees.
   McCulloch, J.

About the first day of July, 1877, Elam Henderson, W. O. Mendenhall and William F. Henderson started a bank in Georgetown, Illinois, called the Citizens’ Bank, for which Elam Henderson furnished all the capital, amounting to about ten thousand dollars in money and notes. On the 9th day of April, 1878, said Mendenhall went out and John Henderson came into the bank. An agreement in writing was then entered into between Elam Henderson, William F. Henderson and John Henderson as follows:

“ Agreement between Elam Henderson, first party, and William F. 'and John Henderson, second party, made April 9, 1878. Said Elam agrees to furnish said William and John from §10,000 to §15,000 in money and approved notes, to be used by them in the banking business at Georgetown, Vermilion county, Illinois, under the name of The Citizens’ Bank, for which they agree to pay the said Elam interest at the rate of eight per cent, per annum, payable semi-annually, on the 1st day of July and 1st day of January of each year. Said agreement to be in force from January 1, 1878; also to pay said Elam in cash or approved notes whatever amount may be furnished by him to be used in said banking business, at the expiration of five years. Further agreed that if any of the notes accepted by said William and John should prove invalid, said Elam agrees to take such notes as his propel^, giving proper credit for the same; said William and John agreeing to use due diligence in making such notes secure.

That said parties herein named, or any other party who may in the future be associated with said firm, are privileged to take additional stock, as may be agreed to by the members of the firm.

William and John agree to perform the labor necessary for the carrying on of said business, upon terms upon which they may agree among themselves.

The member becoming dissatisfied may be permitted to. withdraw from the firm, and shall be entitled to his full share of stock and profits that may accrue therefrom.”

Elam Henderson furnished all the capital upon which the bank was operated under this new arrangement until July, 1879, when John Henderson went out and Titus Bennett took his place in the bank, the latter assuming all its liabilities to the same extent as John Henderson had been liable for the same, after which the business continued as before. This arrangement was made between Titus Bennett and William F. Henderson, the latter acting for Elam and John Henderson, who assented to the arrangement.

Elam Henderson died intestate, on the second day of March, 1881, having in his will made the following bequest:

• “3. I give and bequeath to Olive Uewlin, to have and to hold during her natural life, all my stock in the Citizens’ Bank, of Georgetown, and at her death to her heirs, and if she die without issue, then to her sister and brother, Florence and William Hew!in, and to be turned over to her within one year from January 1st, 1882;” and having by the same will appointed said Titus Bennett and William F. Henderson his executors, who took upon themselves the trust therebydmposed.

In the list of notes and accounts belonging to the estate of said Elam Henderson, filed in the county court by said executors as part of their inventory, appears the following item, viz.: “Bank stock—principal, $10,000.” In said inventory also appears the following item, under the head of “ Moneys and credits,” viz.: “ Money on hand at time of decease deposited in Citizens’ Bank, $2,575.26.”

It appears from the evidence that at the end of every six months during his lifetime the sum of $400 was placed to the credit of Elam Henderson, on his deposit account, for interest upon what was known as his capital or capital stock, after which the profits were equally divided between the other two.

After the death of Elam Henderson the same course was pursued, only that the interest upon the capital or stock bequeathed to her by the will was paid to or passed to the credit of Olive. Hewlin.

Matters remained in this situation until the 24th day of • February, 1882, when William F. Henderson, acting for himself and for and with the consentc-of Titus Bennett, made a deed of assignment to appellees of all the property and assets of the Citizens’ Bank, and none other, for the benefit of all the creditors of said bank, to be paid pro rata, and with said deed of assignment made a schedule of all the persons who had claims against the said bank, as provided by the statute. Among these claimants appears the following, viz.: “ Olive Mewlin, as legatee of Elam Henderson, deceased, Georgetown, Ill., $10,000.’’

The assignees then proceeded under said assignment as provided by law, in the county court, when Titus Bennett, as one of the executors of Elam Henderson, deceased, filed a claim against said assignees, supported by his own affidavit, in substance that Olive Hewlin had a claim against the Citizens’ Bank in the sum of $10,000, on account of legatee of Elam Henderson, deceased, and that the same was justly due her from said bank after allowing all just credits and set-off's. This claim was filed June 27,1882. To this claim exceptions were filed on July 18,1882. After that date'John Newlin seems to have been appointed administrator de bonis non, with the will annexed, of the estate of said Elam Henderson, deceased, after which the said claim was prosecuted in his name. The assignees again filed exceptions to the allowance of the claim, and the cause having been heard by the court without a jury, the claim was disallowed. From that order the administrator appealed to the circuit court, where, upon a trial before a jury, a verdict was rendered in his favor, but the same was set aside by the court and a new trial granted. Upon the second trial a jury was waived, and the cause submitted to the court. The issues were found for appellees, and a judgment rendered in their favor, from which judgment the administrator has appealed to this court.

The principal question in the case is whether by virtue of the contract entered into April 9, 1878, between Elam Henderson, William F. Henderson and John Henderson, and the subsequent change in the membership of the bank by which ,Jolm Henderson retired and Titus Bennett came in, the said Elam Henderson became a partner in the bank, or whether he became a creditor of William F. Henderson and Titus Bennett, assignor's to appellees. If the former, then the administrator has no claim against the assignees, but must be postponed until the debts of the bank are paid, after which if there is any surplus he will be entitled to succeed to the rights of the deceased partner. If the letter, the claim should have been allowed.

We are of the opinion the written contract of April 9,1878, does not constitute the contracting parties a partnership. It purports upon its face to provide merely for a loan of money and notes to William F. and John Henderson, to be used by them in the banking business. It does not provide that he shall participate in the profits or share any of the losses of the business. On the contrary he was to have returned to him at the end of the time mentioned, his entire loan, and was to have interest on the same at eight per cent, per annum, payable semi-annually. The other parties to the contract understood it in this light, for they credited up to him at the end of each half year his interest, but no profits, and then divided the profits equally between themselves.

After his death they recognized his estate as a creditor of the bank in the various ways above mentioned, and when they made the assignment they put in this claim as one of the debts to be paid by the assignees out of the assets assigned. As between themselves, therefore, we can not see that either by the contract or by their subsequent dealings with each other they ever became partners, but Elam Henderson'was" merely a lender and the other parties the borrowers. They therefore owed him $10,00.0 at the time of his death, and the same ought to have been allowed against their assignees.

There is, however, another feature of the case which deserves attention. The schedule of debts attached to the deed of assignment is not set out in full in this record, and we can not tell whether or not any of the debts thereby provided for were contracted before the death of Elam Henderson. There are some facts appearing in this case which tend very strongly to show that he held himself out as a partner in the bank. In fact he acted as its president and took part in most if not all of its business transactions. Should it be made to appear by competent evidence that any of the debts of the bank contracted before his death were created under such circumstances as to hold him as a partner as to third persons, then the share coming to the administrator out of the assets assigned to appellees ought to be subjected, as far as need be, to the payment of the balance due such creditors after receiving their fro rata dividends.

These equities can be adjusted by the county court by first making a dividend of the principal fund among the creditors of the bank, and then, if it should appear that Elam Henderson in his lifetime had made himself responsible for any of its debts, his share of the principal fund, so far as necessary for that purpose, can be distributed fro rata among such creditors until the balance due them shall have been satisfied. For this purpose a county court has as full and complete jurisdiction as a court of equity. Freydendall et al. v. Baldwin, 103 Ill. 325.

The judgment of the circuit court will therefore be reversed and the cause remanded for further proceedings in conformity with the views herein expressed.

¡Reversed and remanded.


text:
    Chicago, Burlington & Quincy R. R. Co. v. Willis J. Montgomery.
    1. Negligence—Burden op proof.—Where a railroad'employe is injured while uncoupling cars, to create a liability he must show. 1, the defective condition of the car; 2, an injury resulting therefrom; 3, notice actual or presumptive of such defect to the owner; 4, that the party injured was in the exercise of ordinary care.
    2. Risks of employment.—Where foreign cars coming into'the yard day after day are peculiarly hazardous, in the manner in which the coupling apparatus and bumpers are constructed, and that fact is as well known to the employe as the employer, if the employe continues in the employment with such knowledge, he assumes the risk of the employment.
    Appeal from the Circuit Court of Adams county; the Hon. J. H. Williams, Judge, presiding.
    Opinion filed July 3, 1884.
    Mr. J. F. Carrott, for appellant;
    that the burden of proof rests upon defendant to show some specific negligence on the master’s part which caused the injury, cited 2 Thompson on Negligence, 1053; Shearman and Redfield on Negligence, §§ 87, 88; Wood on Master and Servant, § 346; Beaulien v. Portland Co., 48 Me. 291; C. C. & I. C. Ry. Co. v. Troesch, 68 Ill. 545; C. & A. R. R. Co. v. Platt, 89 Ill. 143.
    Mr. Wm. H. Barnes and Mr. War. L. Aaron, for appellee;
    cited C. & A. R. R. Co. v. Bragonier, 11 Bradwell, 517; Morris v. Gleason, 1 Bradwell, 514; C.B. & Q. R. R. Co. v. Avery, 8 Bradwell, 133; C. & E. I. R. R. Co. v. Hager, 11 Bradwell, 500.
   McCulloch, J.

Appellee in this case is a railroad man of several years experience, and at the time of receiving the injury complained of was in the service of appellant as switchman in its yards at Quincy. A foreign car had come into the yard in a somewhat damaged condition as to one of its doors, but this damage had been repaired. It had been in the yard for several days, so that appellant had ample time, through its servants, to have discovered other defects if any had existed. Upon inspection none were discovered and the car was being loaded for a long trip eastward where it belonged. Under these circumstances the duty devolved upon appellant to use diligence in seeing that the cars were in a safe condition to be handled by its employes.

But this is not a case where the mere happening of an accident, such as is complained of, affords any presumption that the car was in a defective condition. The burden of proof is upon the party receiving the injury to show negligence on the part of the owner of the car. I. C. R. R. Co. v. Houck, 72 Ill. 285. Where a train leaves the track and injures a passenger, or a boiler explodes and does damage to a by-stander who is not in fault, or where fire is communicated to grass on the right of way, negligence may be presumed. Butin this case the plaintiff below was in the act .of uncoupling the cars, and while in the performance of that act his hand and arm were caught between them. We'are now asked to infer from that fact (and upon this point counsel for appellee rests his entire argument), that the car was out of order. . This we can not do.

Four things are necessary to create a liability in such cases. First, the defective condition of the car; secondly, an injury resulting therefrom; thirdly, notice, actual or presumptive of such defect to the owner; fourthly, that the party injured was in the exercise of ordinary care.

Each party will be bound to exercise a degree of care corresponding to the dangers incident to the situation: the owner to see that the cars are dn a safe condition to be put into the hands of his employes, the employe to see that he is not running into apparent danger.

In this case appellee could only show that while in the exercise of due care an accident happened which caused him the injury complained of. From this fact alone, we are asked to infer that the car was in an unfit condition to be placed upon the road, and that the defect was of such a nature that it ought to have been discovered by appellant’s servants. This would be a shifting of the burden of proof upon appellant. There is no question but that if the car was defective in the respect complained of, and that if such defect was apparent upon examination, appellant ought to have known it. JSTeitker is there any question but that appellee received the injury by having his hand and arm caught between the cars. It may also be assumed from the proof that he was in the exercise of due care. Then we are asked to infer that the car was defective in such a particular as to have attracted the attention of appellant’s servants charged with that duty; for negligence can not be imputed to appellant in regard to latent defects not discoverable from the usual tests. T. P. & W. Ry. Co. v. Conroy, 61 Ill. 162; C. & A. R. R. Co. v. Platt, 89 Ill. 141; Same case in this court, ubi supra; Richardson v. Cooper, 88 Ill. 270.

In this case the evidence shows that the two cars appellee was attempting to uncouple were constructed alike. On each side of the draw-bar there was a box-shaped cast-iron “ bumper,” above which the arm had to be raised and the hand lowered between them in order to draw the pin. Appellee had his hand upon the pin when the slack was given by the engineer. Just at that moment the pin ought to have been drawn, but instead of that, for some unexplained reason, appellee’s hand and arm were caught and crushed. Evidently his arm was caught between the “ bumpers,” for there was no other way it could have been caught. The hand could not have been caught between the heads of the draw-bar, for it was then upon the pin. Appellee thinks the draw-bar gave way and slipped under the body of the car. It is impossible to see how this alone would have caused the injury, for the u bumpers” were there to arrest its motion. In fact it is shown when the momentum is great, the “ bumpers” will come together when the draw-bars are in perfect condition, and their principal object seems to be to relieve the strain upon the draw-bar and its springs when the cars come together with great force.

Just in what way appellee’s hand and arm were caught, the' proof fails to show. It is equally silent as to any defect in the car, or, if there was any such, it fails to show that it was of such a nature as to charge appellant with negligence in not discovering it.

If there was anything peculiarly hazardous in the manner in which the coupling apparatus and bumpers were constructed, that fact was as well known to appellee as to appellant; and if he continued in the employment of appellant with the knowledge he had that such cars were coming into the yard day after day, he assumed the risk of the situation. I. B. & W. R. R. Co. v. Flanigan, 77 Ill. 365; Penna. Co. v. Lynch, 90 Ill. 335.

Had there been any patent defect in the car which rendered it dangerous to handle for want of proper repair, and appellee from his own failure to exercise reasonable care and caution had failed to discover it, then he might have been found guilty "of such negligence as to preclude a recovery. But we see no room for the application of this docrine to the case under the proofs contained in this record. There is no patent defect shown, and consequently neither party can be charged with constructive not'ce of any such.

For the reasons herein given we are of the opinion that appellee wholly tailed to make out his case, and the judgment of the circuit court will be reversed and the cause remanded.

Reversed and remanded.


author: Wall, J.

text:
    Daniel Welker v. John O. Butler.
    1. Slander—General' reputation of plaintiff.—In an action on the ease for slander, the words charged imputing the crime of larceny, it is not error to permit the defendant to prove the general reputation of the plaintiff.
    2. Malice.—While the law implies malice from the use of words actionable per se, yet this implication may be explained and rebutted by circumstances. The words may be shown to have been used with reference to a known act and to have been so understood by those present, and that such act was not in point of law a felony. It is proper to submit the intent of the publication to the jury.
    3. Instructions.—An instruction that “if the jury believe from the evidence that the plaintiff was at the time the language is a'leged to have been used, taking the property of the defendant with the intent of converting it to his own use. then they will find for the defendant.” Held, clearly erroneous. The defense of justification could be made only by establishing every element necessary to constitute the crime of larceny.
    4. Mental suffering—Damages.—It was error for the court to refuse the instruction that if the defendant had charged the plaintiff as alleged, the mental suffering thereby occasioned to plaintiff, if any such had been proved, was a proper element to be considered in fixing the damages.
    5. Bill of exceptions.—Remarks of court or counsel on the trial of a cause, which are complained of as error, must be embodied in the bill of exceptions or they will not be noticed.

      Error to the City Court of East St. Louis; the Hon. War. P. Launtz, Judge, presiding.
    Opinion filed October 10, 1884.
    Mr. J. M. Freels and Mr. L. II. Hite, for plaintiff in error;
    that from the speaking of actionable words, malice is implied and damage presumed and need not be proved, cited Flagg v. Roberts, 67 Ill. 484; Harbison v. Shook, 41 Ill. 146; Schmisseur v. Kreilich, 92 Ill. 348; Mitchell v. Milholland, 106 Ill. 175; 1 Chitty on Pleading, 16 Ed. *411, *412.
    Defendant must prove the truth of the charge of larceny or respond in damages for the wrong: Miller v. Johnson, 79 Ill. 60; Harbison v. Shook, 41 Ill. 141; Conley on Torts, 200.
    As to damages for mental suffering: Adams v. Smith, 58 Ill. 421.
    Messrs. Messick & Rhodes and Messrs. Flannigen & Can-by, for defendant in error;
    as to evidence of general reputation of plaintiff being admissible, cited Adams v. Smith, 58 Ill. 417; Regnier v. Cabot, 2 Gilm. 34; Sheahan v. Collins, 20 Ill. 325; Heard on Libel and Slander, § 299; 2 Greenleaf on Ev., § 424.
    As to embodying remarks of counsel assigned as error in bill of exceptions: Kepperly v. Ramsdén, 83 Ill. 354; Earll v. People, 99 Ill. 123; O'Hara v. King, 52 Ill. 304.
    When words actionable per se are spoken under circumstances tending to show a want of malice, the intent of the publication should be left to the jury under the proof: Zuckerman v. Sonnenschein, 62 Ill. 115; 5 Wait’s Actions and Defenses, 748; Jarvis v. Hathaway, 3 Johns. (N. Y.), 180; Haynes v. Haynes, 29 Me. 247; McKee v. Ingalls, 4 Scam. 30; Weaver v. Hendrick, 30 Mo. 502; Weed v. Bibbins, 32 Barb. (N. Y.), 315; Usher v. Severance, 20 Mo. 9; Turrill v. Dolloway, 26 Wend. (N. Y.), 383; Jones v. Rivers, 3 Brev. (S. C.), 95; Thompson v. Grimes, 5 Ind. 385; Cregier v. Bunton, 2 Rich. (S. C.), 395.
    Words actionable, perse, are not so, when spoken of a transaction not amounting to the crime charged, if known to the hearers to be so spoken: Darling v. Banks, 14 Ill. 46; Ayers v. Grider, 15 Ill. 37; Pannier v. Anderson, 33 Ala. 78; Alfele v. Wright, 17 Ohio St. 233; McCaleb v. Smith, 22 Iowa, 242; Bunton v. Worley, 4 Bibb (Ky.), 38; Carmichael v. Shiel, 21 Ind. 66; Allen v. Hillman, 12 Pick. (Mass.) 101; Cock v. Weatherby, 13 Miss. (5 Smed. & M.) 333; Donnell v. Fisk, 11 Metc. (Mass.) 551; Blanchard v. Fisk, 2 N. H. 398; Wall v. Haskins, 5 Ired. (N. C.) 177; Dexter v. Taber, 12 Johns. (N. Y.) 239.
   Wall, J.

This was an action on the case for slander. The words charged imputed to the plaintiff the crime of larceny. The defendant plead, first, not guilty; second, justification.

A trial before the court and a jury resulted in a verdict for defendant, upon which the court, after overruling a motion for a new trial, rendered judgment against the plaintiff for cost.

Various errors are assigned relating to the action of the court in admitting evidence, and in giving and refusing instructions.

It is first objected that the court permitted the defendant to prove the general reputation of the plaintiff.

Such proof is admissible, and while in this case the court may have permitted it to go too much into detail, yet we discover nothing in this respect for which the judgment should be reversed.

Objection is taken to an alleged remark of the court in the presence and hearing of the jury, calculated to prejudice the plaintiff.

While this is one of the points contained in the motion for a new trial, yet we are unable to find anything in the abstract or the record upon which to base it, and it is therefore to be disregarded.

It is next urged that by the first instruction for defendant, the jury were advised that if the words charged were not spoken maliciously, and the character of the plaintiff was not injured thereby, then the verdict should' be for defendant. While the law implies malice from the use of words actionable per se, yet this implication may be explained and rebutted by circumstatices.

“Words standing alone may import malice and indi- • cate a wicked intent. Surround them with the circumstances under which they were spoken and the malice disappears.” Zuckerman v. Sonnenschein, 68 Ill. 115; McKee v. Ingalls, 4 Scam. 32.

It may also be shown that the words were used with reference to a known act, and were so understood by those present, and that such act was not, in point of law, a felony. Ayers v. Grider, 15 Ill. 37.

It was proper to submit the intent of the publication to the jury.

The court gave for the defendant the following instruction:

3. The court instructs the jury that if they, believe from the evidence that the plaintiff, Welker, was at the time the language is alleged to have been used, taking the property of the defendant with the intention of converting it to his own use, then they will find for the defendant.

This was clearly erroneous; the defense of justification could be made only by establishing every element necessary to constitute the crime of larceny, though it would, under the present statute, require but a preponderance of testimony for this purpose, R. S. Ch. 126, Sec. 3.

This instruction, however, would warrant the jury—indeed, require them—to find for defendant if the plaintiff had been guilty of a mere trespass with regard to the defendant’s property, omitting entirely the element of an intent to steal, the felonious intent which is a necessary ingredient of the crime.

It was not even important under this instruction that the plaintiff should have known it was the property of defendant.

This instruction, when applied to the peculiar facts of the case, must have had great weight with the jury in producing the verdict for defendant.

The fifth instruction was too loose and general in not calling attention to the facts necessary to sustain the defense. Mor do we think the objections to these instructions were cured by those given for plaintiff.

Exception is taken to the sixth instruction given for defendant.

Its effect was to advise the jury that proof of the words therein quoted did not amount to proof of the words alleged in the declaration, to which there is no just ground of objection. It was a question for the jury whether the defendant uttered the words alleged; this was put in issue by the plea of not guilty, and the plaintiff was bound to prove the substance of the words so alleged, or some one set of them, notwithstanding the plea of justification, and if he failed to do so he could not recover.

The court refused the fourth instruction asked by plaintiff, that if the defendant had charged the plaintiff, as alleged, the mental suffering thereby occasioned to plaintiff, if any such had been proved, was a proper element to be considered in fixing the damages.

This should have been given. Adams v. Smith, 58 Ill. 481.

As to the merits of the case we express no opinion, and will only say in this regard, that had the jury been properly instructed we would not interfere.

Eor the errors indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Illinois Central Railroad Company v. David Messnard.
    Evidence—Husband and wife.—Where appellee sued appellant for wages, and the defense was payment to appellee’s wife upon appellee’s written order, and the wife and a friend testified to a letter being sent asking for such order, and the receipt of a letter and the order in reply, and appellee, who was illiterate and could not write, claimed that the order was forged. Held, that the evidence was sufficient to warrant the introduction of the paper to the jury, they to determine upon all the proof, whether it was authentic or not; that the contents of the letters were not competent, but it was proper to show, by the friend at least, that the letter was sent by the wife, asking for the order, and that the reply came, inclosing it as stated.

      Appeal from the Circuit Court of Effingham county; the Hon. Wm. 0. Jones, Judge, presiding.
    Opinion filed October 10, 1884.
    Mr. R. C. Harrah, for appellant;
    that the letter should have been Admitted in evidence, cited 1 Greenleaf on Evidence, § 573 a; Overston v. Wilson, 2 C. & K. 1; 4 Jacob’s Fisher’s Digest, 4954.
    Mr. John C. White, for appellee.
   Wall, J.

The appellee sued appellant to recover a sum due him for his wages, as a laborer on appellant’s track.

The defense was that the amount had been paid to the wife of the appellee upon a written order given by the appellee.

There was evidence tending to show that after the work in question had been done, the appellee left his wife in a destitute condition and went away without informing her or any one else where he was going. After he liad been gone some weeks, his wife, hearing that he was with his relatives in Effingham county, wrote him a letter dated Hov. 9, 1883, mailed it at Heoga addressed to him at Watson, in which she requested him to send her an order to draw his pay from the railroad company, and on the 16th of the same month she received through the mail a letter professing to come from the appellee, dated the 13th, inclosing the order as requested.

When the pay car came on the 19th, she was introduced by the station agent at Heoga to the paymaster, as the wife of appellee, presented the order and received the money due him.

When the pay car afterward reached Watson, the appellee appeared and asked for the money. He was informed by the paymaster that it had been paid to his wife, at Neoga, and the evidence tends to show that he assented to it, and said, “ Yes, that is all right,” though there is conflict as to what he did say, lie denying that he made this statement.

The appellee is an illiterate man, can not write, and there is testimony not necessary to recite as to whether he could have had the aid of others in reference to the alleged correspondence. The fact of the mailing and receipt of the letter and reply, as above shown, is established by the testimony of the wife and of one Mrs. Chambers, with whom she was then living.

The trial court refused to permit this order to be read to the jury. In this we think there was error. Whether the order was genuine and sent, as it and the letter purported, by the appellee, was the main question, and though there was no conclusive proof on this point, there certainly was enough to warrant the introduction of the paper in evidence, leaving it for the jury to determine upon all the proof whether it was authentic or not. Green leaf on Ev., Vol. 1, Sec. 573 a.

Indeed this question seems to have been submitted by the instructions, but the exclusion of the order must have had a great, if not a controlling influence, and tended strongly to the prejudice of the appellant.

The contents of the letters between the husband and wife were not competent, but it was proper to show by Mrs. Chambers at least, that the letter was sent by the wife asking forth e order, and that the reply came inclosing it as stated. Where, in any transaction, the wife acts as the agent of her husband, she is a competent witness for or against him as to-that transaction. R. S. Ch. 51, Sec. 5. But how far she may testify to matters establishing the agency where they involve communications between them is not important in this case to decide, as the facts necessary to admit the order are shown by the witness, Mrs. Chambers.

Exceptions are urged to certain instructions given on behalf of appellee, but wefind’nothing seriously objectionable in this respect.

For the error in refusing to admit the order in evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Simeon W. Ryder, by etc., v. Marcus H. Topping et al.
    1. Lunatic—Conservator.—Notwithstanding there is a’reacly a conservator for a lunatic, possessing general authority as such, by statute, a court may in its discretion appoint a conservator or next friend for a particular purpose.
    2. Bill brought by lunatic and next friend.—Where no conservator for a lunatic was appointed under the statute, and a bill was filed in behalf of the lunatic and another suing in his own right, prima facie the suit could be so brought, and a court would hardly consider the fact that no permission to so bring the suit had first been granted as a proper ground for sustaining a demurrer to the hill, otherwise sufficient.
    3. Parties.—Where a bill was filed against trustees for mismanagement of a trust fund in behalf of A, a lunatic, by his next friend, B, and B in his own right, and B had an important interest in the estate, contingent only upon A’s death before his. Held, that B was a proper party to the bill. One sustaining such a relatiod to equitable property may file a bill quia timet, and the jurisdiction attaches equally in cases where there is a present right of enjoyment, and to cases where the right of enjoyment is future and contingent.
    4. Chancery.—The court is of opinion that the allegations of the bill as to the mismanagement of the fund are sufficient to call for answer.
    Error to the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed October 10, 1884.
    The plaintiffs in error filed their bill in chancery against defendants in error, alleging:
    That on the 28th of August, 1877, Simeon Ryder, of Madison county, died, leaving his wife, Anna E. Ryder, the mother of said Simeon W. Ryder, and his children, the said Simeon W. and the said Selina Bowman, who is a daughter by a former marriage; that said Simeon W. is a person of unsound mind, and has no legal conservator to represent him or bring suits in his behalf; that said deceased left a will giving certain real and personal property, describing it, to his said wife for her natural life, in lieu of dower and in trust for her own use and for the comfortable support of said Simeon W. ■ Second—giving one eight per cent. Alton city bond for $500 to his nephews, the Toppings. Third—the residue of his property he gives to his daughter, said Selina Bowman. Fourth—that upon the death of his wife, the property given to her and remaining undisposed of shall go in trust to the defendants to hold and manage for the use and benefit of said Simeon W. as long as he shall live, comfortably providing for him and supporting him until his death, when the property should go and be conveyed to the heirs of said Simeon W. That the will being admitted to probate and the widow refusing to act, letters testamentary were issued to the defendants in error, who, with said Anna E. Ryder, were named as executors in the will.
    That on the 2d of ¡November, 1879, the said Anna E. Ryder died intestate, leaving as her only child and heir the said Simeon W., and that the said Selina Bowman took out letters of administration upon her estate. That the property so devised and bequeathed to said Anna E. Ryder, amounting in value to $67,706.57, went into the hands of said defendants in error, of which nearly $22,000 was personal estate, consisting of cash and interest-bearing securities yielding an annual income of $2,000, and that the realty was, excepting a small quantity, improved, yielding an annual net revenue of $1,500 or more.
    That it was the purpose of said deceased, believing the said Simeon W., who was then insane, would never recover his reason, and would be incapable of contracting marriage, to provide a comfortable support for his said wife and his said sou, so long as they should live, and that the residue should go to said Selina Bowman; that it was also his expectation that the said Anna E. Ryder would act as one of his trustees, and that she would live longer than she did, and believing that the defendants in error were perfectly responsible and would faithfully execute the trust, he did not require them to give security therefor. That the financial condition of the trustees had greatly changed for the worse since the death of said testator; that one of the trustees, Ash, has conveyed a portion of his property to his wife; that he and Topping have used the funds of said estate in their private business to the extent of at least $10,000 of principal besides the interest, and that if called upon to replace the same they would be unable to do so; that they have sold a portion of the real estate and converted the proceeds, $4,000, to their own use; that they have mismanaged the property, failed to keep it in repair, though having funds in their hands with which to do so; that they have not used proper care and diligence in loaning the money'; that the cost of administering the estate and supporting said Simeon W. ought not to exceed $1,200 per annum, and that there ought to be a net balance each year in favor of the estate of at least $2,000, but that in fact the estate has greatly decreased in amount instead of increasing; that the trustees have never rendered any account, though frequently requested so to do by said Selina Bowman, and that such omission is because an account would show that the estate has been wasted and impaired; that they have been guilty of such conduct in the management of the trust as would subject them to removal and would disclose the fact that they have appropriated $15,000 or more of the moneys of said estate which they are unable to replace, and it is further charged that it is the purpose of said trustees to entirely squander said estate and that they will do so unless removed or required to account fully and give bond for the faithful performance of the trust.
    The bill then prays for an account, and, upon a showing that there has been the alleged mismanagement and waste, that the trustees may be removed, etc.
    On the 19th of March, 1884, the defendants interposed their demurrer to said bill; alleging, as a specific cause of demurrer, that the said Selina Bowman was not a proper party complainant in said cause. Afterward, on the 5th of May, 1884, the following order was entered in the cause:
    And now at this day, this cause coming on to be heard on the demurrer of said defendants to the bill of complaint herein filed: Whereupon the complainant, Selina Bowman, enters her motion for the leave of the court to file this bill and prosecute this suit, as next friend of said Simeon W. Ryder, which motion was refused, and the demurrer to said bill sustained by the court, and said bill was dismissed, as without equity; to which ruling of the court the complainant then and there excepted. And she elects to stand by her bill, and prays an appeal to the Appellate Court of the State of Illinois for the Fourth District, which is granted upon her giving bond in the sum of seventy-five dollars, the security to be approved by the clerk of this court, within forty-five days.
    Messrs. Metcalfe & Bradshaw, fcr plaintiffs in error;
    cited Story’s Eq. Pi. §§ 143,144; Perry on Trusts, § 275; 2 Story’s Eq. Jurisdiction, § 1065.
    In the absence of a conservator, suit can be instituted in a lunatic’s own name directly or by next friend: C. & P. R. R. Co. v. Hunger, 78 Ill. 300; 1 Daniell’s Chancery Pl. & Prac. 5th. Ed. Ch. 3, § 6.
    As to the enforcement of trusts in chancery: Moore v. School Trustees, 19 Ill. 83; Coates v. Woodworth, 13 Ill. 654; Curtis v. Brown, 29 Ill. 201.
    Messrs. Wise & Davis, for defendants in error;
    that suit in behalf of a lunatic is not properly brought by next friend without leave of court, cited Story’s Eq. Pleading, §§ 64, 66; R. S. 1877, Ch. 22, § 5; Patterson v. Pullman, 104 Ill. 80.
   Wall, J.

It is urged by counsel for defendants in error that the court properly ruled in dismissing the bill, because,

1st. Suit in behalf of a lunatic is not properly brought by a “ next friend ” without leave of the court.

2d» Selina Bowman was not a proper party, because she had no interest in the subject-matter.

3d. The bill contains no such allegations as to call for the aid of a court of equity.

On the other hand, counsel for plaintiffs in error insist upon the Converse of these propositions and that the ruling of the court was erroneous.

Where a conservator has been appointed for a lunatic in pursuance of the statute it is his duty to represent his ward in all suits and proceedings unless another person is appointed for that purpose as conservator or next friend, but it is provided that nothing contained in the act shall impair the power of the court to appoint a conservator or next friend to represent the interest of such ward in any suit or matter pending ih the court, or to commence, prosecute or defend any suit in his behalf, subject to the discretion of the court. Ch. 86, Sec. 13, R. S. 1874.

By this provision the court may in its discretion appoint a conservator or next friend for a particular purpose, notwithstanding there is already, a conservator possessing general authority as such.

But in the case before us there had been no conservator appointed under the statute. By the rules of Chancery Practice as laid down in Daniel], 5th Ed., page 82, “Suits on behalf of a lunatic are usually instituted in the name of the lunatic, but as lie is a person incapable in law of talcing any step on his own account, he sues by the committee of his estate, if any, or if none, by his next friend, who is responsible for costs;” and this proposition is abundantly supported by the adjudged cases cited in the note. See also, C. & P. R. R. Co. v. Munger, 78 Ill. 300, as to proceedings at law.

It was not made a cause of demurrer that the bill was improperly filed on behalf of the lunatic; and even if, as counsel suppose, it is a matter of discretion with the court to permit a suit to be so brought, there should appear some reason for refusing it before the suit would be dismissed. Prima facie, the suit may be so brought, and the court would hardly consider the fact that no such permission had first been granted as a proper ground for sustaining a demurrer to a bill otherwise sufficient, when so filed in behalf of a lunatic and another suing in his own right.

Was Selina Bowman a proper party to the bill ? It is averred that the said Simeon W. is insane, incapable of contracting marriage, that the said Selina will therefore be his only heir, and by the operation of the will, if he dies during her lifetime, the property will pass to her. So that the facts being considered in connection with the will, the situation is the same as if the will in terms provided that upon his death the property should go to her. She lias therefore an important interest in the estate contingent only upon his death occurring before hers.

One sustaining such a relation to equitable property may file a bill quia, timet, and the jurisdiction attaches equally in cases where there is a present right of enjoyment, and to cases where the right of enjoyment is future and contingent. Story’s Eq. Jur., Sec. 827. The same author further remarks) “ The object of the bill in such cases is to secure the preservation of the property to its appropriate ends and uses, and wherever there is danger of its being converted to other purposes, or diminished or lost by gross negligence, the interference of a court of equity becomes indispensable. It will accordingly take the funds in its own hands or secure its due management and appropriation either by the agency of its own officers or otherwise. Thus, for instance, if property in the hands of a trustee for certain specific uses or trusts (either expressed or implied,) is in danger of being diverted or squandered, to the injury of any claimant having a present or fixed title thereto, the administration will be duly secured by the court according to its original purposes in such manner as the court may in its discretion deem best, as by the appointment of a receiver or by payment of the fund, if pecuniary, into court, or by requiring security for its due preservation and appropriation.”

The same principle is applied to cases of executors and administrators, who are treated as trustees of the personal estate of the deceased (Ibidem, Sec. 828), and is also applied in preserving purely legal property where the right of enjoyment is future or contingent. Ib. Sec. 844, et seq.; 1287, et seq.; Wait’s Actions and Defenses, Vol. I, page 654, et seq.; Perry on Trusts, Vol. 1, Sec. 275.

We are of opinion the bill was properly filed on behalf of Selina Bowman, and as the relief sought by her is substantially consistent with that prayed on behalf of the lunatic, there is no apparent reason why they may not file the bill jointly.

The remaining question is whether the allegations of the bill are sufficient to call for answer.

We think that they are. It is charged that the defendants— who, hy reason of the confidence reposed in them fby the testator are exercising the trust without bond—-have mismanaged the property; that they have appropriated to their own use $15,000, or more, which they are unable to replace; that the property is wasting and shrinking in their hands when it ought to improve and increase; that they refuse to accoun t because the account would show that they should be removed, and that a continuance of their present course will result in great loss to the parties interested in the estate.

Such a state of facts, if true, would call for the interposition of equity, and the exercise of its jurisdiction to correct the evils complained of.

It is suggested that a former bill was filed in reference to the same matter to which the circuit court sustained a demurrer, and that this court sustained that ruling by affirming the decree. Examination of that bill will show that its objects and allegations were quite unlike those of the present bill. It was filed on behalf of the lunatic alone, to obtain a construction of the will which was deemed unsound, and its charges of misconduct were regarded as too vague and uncertain to require answer.

We are of opinion the court erred in dismissing the bill now before us.

The decree is therefore reversed and the cause remanded.

Reversed and remanded.


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    Aaron Stout v. Mattie C. Ellison.
    1. Tbanseeb to wife.—Where a wife had been living with her husband and on account of cruel treatment left him, and shortly after she returned upon his offer to give her half his store, which alleged transfer was not evidenced by a,n instrument in writing, acknowledged and recorded as required by statute. Held, that such transfer was invalid as against a subsequent purchaser who had no knowledge or notice thereof; that the position that the husband and wife “were not living together ” when the transfer was made and therefore the transaction was not affected by the statute, is untenable.
    2. Witness-—In a suit in relation to the separate property of the wife, the husband is a competent witness.
    3. Husband and wife.—The provision of the statute that a married woman may receive, use and possess her own earnings, and sue for the same free from the interference of her husband, has no proper application where a wife cans and preserves fruits, etc., purchased by her husband. The property would remain in the husband.
    4. Estoppel.—Where a wife, who was present when the invoice was being made, gave the purchaser of her husband's store to understand by the use of plain and- forcible terms, that she would claim nothing- but her clothes, which she obtained, she would be estopped from setting up afterward the transfer of a half interest in the store.
    Appeal from the County Court of Randolph county; the Hon. George L. Riess, Jndge, presiding.
    Opinion filed October 10, 1884.
    This was an action of trover by the appellee against appellant, for a stock of drugs, medicines, etc., and for certain household and kitchen furniture, canned fruit, pickles, preserves, etc.
    The case was tried by jury, resulting in a verdict for plaintiff for $251, of which plaintiff remitted $150; and a motion for a new trial having been overruled, judgment was rendered against the defendant for $101 and costs.
    It appeared on the trial that appellee is the wife of one E. Ellison; the husband and wife were living together, the former being the owner of the property in question, and that on account of alleged mistreatment the wife left the husband in March, 1883; that soon after he went to her and offered to give her one half of the store if she would return, which she accepted, and returning lived with him until September, when • she again left him for the same reason as before; that in October the husband sold the goods and all the household and kitchen furniture, canned fruits, etc., to appellant; that while the sale was in progress, and while appellant and her husband were making the invoice, the appellee came to the store, and after some unpleasant words with her husband as to what was going on, said to him in the presence of appellant, “ all I want is my clothes, and when I get them you can go to Hell with the balance.” It is not shown that appellant had any knowledge then, or at any time before the sale, that the wife had or claimed an interest in the property. The household and kitchen furniture, including the sewing machine, were acquired by the husband through the appellee. Appellee says she considered them hers. The fruit, etc., was purchased by the husband, and canned and preserved by the wife. Some time after the sale, and while appellant was in possession, appellee demanded the property, or a portion of it, which demand was not complied with.
    Afterward appellant sold the property back to Ellison, the husband of appellee, who owned it at the time of trial.
    Messrs. Hartzell & Simpson, for appellant;
    that in a suit in relation to a wife’s separate' property, the husband is a competent witness, cited R. S. 1883, Ch. 51, § 5; Mueller v. Rebhan, 94 Ill. 147; Hawver v. Hawver, 78 Ill. 412.
    As to estoppel: T. W. & W. Ry. Co. v. Gilvin, 81 Ill. 511; Rozier v. Williams, 92 Ill. 187; Padfield v. Padtield, 78 Ill. 16; Schweizer v. Tracy, 76 Ill. 345; Jenning v. Gage, 13 Ill. 610; M. C. R. R. Co. v. Phillips, 60 Ill. 190; Young v. Bradley, 68 Ill. 553; Brundage v. Camp, 21 Ill. 330; Butters v. Haughwout, 42 Ill. 18; Chicago Dock Co. v. Foster, 48 Ill. 507; O. & M. R. R. Co. v. Kerr, 49 Ill. 459.
    Mr. A. G. Gordon, for appellee.
   Wall, J.

Waiving the question, which is not argued, whether trover will lie upon plaintiff’s theory of the case, we think the verdict was erroneous.

The alleged transfer of a half interest in the store from Ellison to his wife was not evidenced by an instrument in writing, acknowledged and recorded as required by Sec. 9, Ch. 68, B. S., and was therefore invalid as against the rights and interests of appellant, who, so far as the evidence discloses, had no knowledge or notice thereof.

It is urged by counsel that the husband and wife “ were not living together ” when the transfer was made, and therefore the transaction was not affected by the statute; but this position is clearly unsound.

The object of the statute is apparent, and it should have a fair and reasonable interpretation, to the end that the purpose of the law may be accomplished.

According to plaintiff's own statement, she had been living with her husband, he conducting the store, when, for the reason assigned, she left him. Shortly after she returned, upon the offer to give her half the store. While in a strict sensej it may be said that when this offer was made the parties were not living together, yet the transfer was not complete until possession was given, if it ever was, and that act- was concurrent with her return and the resumption of their former relations. During ail the subsequent period, when she claims to have exercised acts of ownership over the goods, they were living together. We are unable to see how, by the most narrow and illiberal construction even, it could be held that the statute dues not apply in such ease. We think the transaction is clearly within the letter and spirit of the law.

But were this not so, the plaintiff, who was present when the invoice was being made, gave the defendant to understand, by the use of plain and forcible terms, that she would claim nothing except her clothing, all of which she obtained, and should be estopped from afterward setting up the present demand.

It is suggested by counsel, that the appellant and the husband were not acting in good faith, but were in collusion to prevent the appellee from maintaining her rights. This view seems not to have been presented below, and may or may not be warranted by the real facts, but we see nothing in the evidence to justify it, and what we have said is upon the assumption that the transaction was in good faith. The action of the court in excluding the testimony of the husband was erroneous.

The litigation was concerning the separate property of the wife as alleged, and the husband was a competent witness. Sec. 5, Ch., 51, R. S; Hawver v. Hawver, 78 Ill. 412; Mueller v. Rebhan, 94 Ill. 147.

The instructions given for plaintiff numbered 1, 2, 3, 4 and 5, are subject to exception, because they all ignore the necessity for a written transfer, signed and acknowledged, etc., as required by the statute already referred to. The sixth instruction is faulty, because it states a legal proposition not applicable to the facts, and would mislead the jury.

Because the wife had canned and preserved the fruits, etc., purchased by her husband, it did not follow that she thereby became the owner of the fruits in this canned and preserved condition, and yet it is assumed by the instruction that this would be the result.

The provision of the statute, See. 7, Ch. 68, that a married woman may receive, use and possess her own earnings, and sue for the same free from the interference of her husband or his creditors, has no proper application in such a case. The property would remain in the husband. Hazelbaker v. Goodfellow, 64 Ill. 241; Flynn v. Gardner, 3 Bradwell, 253; Cunningham v. Hanney, 12 Ib. 437.

Other objections are urged with reference to the'instructions given for plaintiff, and the modification of an instruction for defendant; but we deem it unnecessary to refer to them.

For the errors indicated the judgment will be reversed and the cause remanded.

Beversed and remanded.


text:
    A. F. Smart v. N. B. Morrison.
    1. Statute oe Limitations—Demurrer.—When a note was made, the Statute of Limitations provided that suits should be brought upon such causes of action within sixteen years after the same had accrued, but before the note became due another statute took effect, providing that such actions should be brought within ten years after the cause of action accrued. Appellee filed a plea to appellant’s declaration, that the cause of action did not accrue within ten years. Appellant demurred to such plea. Held, that the court erred in not sustaining such demurrer.
    2. Construction of statute.—In the saving clause in the Statute of Limitations (Laws, 1871-2, p. 559, § 24), “but this action shall not be so construed as to affect any rights or liabilities, or any causes of action that may have accrued before the act shall take effect, ” the terms, “ rights and liabilities ” and “causes of action” are not synonymous, and it was the plain purpose of the legislature to leave wholly unaffected all contracts that had been executed prior to the time when the act became a law. • When the note above mentioned was made, the payee had the right to receive the money when due and to bring suit within sixteen years thereafter, and the liability of the maker was correlative.
    Appeal from the Circuit Court of Marion county; the lion. Amos Watts, Judge, presiding.
    Opinion filed October 10, 1884.
    Mr. T. E. Merritt, for appellant;
    that the statute that was' in force at the time the note was executed, is the statute that should apply, cited Dickerson v. C. B. & Q. R. R Co., 77 Ill. 331; Mix v. Vail, 86 Ill. 40; Alwood v. Mansfield, 81 Ill. 314; Roth v. Eppy, 80 Ill. 283; Hyman v. Bayne, 83 Ill. 256; Gridley v. Barnes, 103 Ill. 211.
    Mr. Henry C. Goodnow, for appellee;
    that the cause of action did not accrue until the note fell due, cited Dugan v. Follett, 100 Ill. 582; Dickerson v. Merriman, 100 Ill. 342; Beesley v. Spencer, 25 Ill. 216; Cooley’s Const. Lim., 2d Ed., 364, 367.
   Wall, J.

This was an action in assumpsit by appellant against the appellee.

The cause of action alleged. was a promissory note for $286.36 dated May 6, 1872, signed by the appellee as maker, payable to the order of the appellan t six months after said date.

The pleas filed were 1st, non assumpsit; 2d, that the cause of action did not accrue within ten years next before the commencement of the suit.

The court overruled a demurrer to the second plea, and plaintiff electing to stand by the demurrer, judgment was rendered against him for cost. The record is brought here by appeal and the question is as to the sufficiency of the second plea.

When the instrument sued on was made, the Statute of Limitations provided that suits should be brought upon such causes of action within sixteen years after the same had accrued (Gross Stat. Ch. 66, Sec. 4) but before the note became due another statute took effect providing that such actions should be brought within ten years after the cause of action accrued. Laws 1871-2, page 559, Sec. 16.

By the 24th section of the latter act the prior statute was expressly repealed, but with a saving clause as follows: “ but this section shall not be so construed as to affect any rights or liabilities, or any causes of action, that may have accrued before the act shall take effect.” The act took effect July 1, 1872.

In the case of Dickson v. C. B. & Q. R. R. Co., 77 Ill. 332, the Supreme Court hold that this saving clause should be construed the same as if the words “ this act” had been used instead of the words “ this section,” and that it was the legislative intention that the act of 1872 was to be prospective and not retroactive in its operation.

It is well settled that Statutes of Limitation pertain to the remedy and not to the essence of the contract, and that it is within the power of the legislature to regulate the remedy and modes of proceeding in relation to past as well as future contracts.

This power is subject, only to the condition that it can not be so exercised as to take away all remedy or to impose new burdens or restrictions which materially impair the value and benefit of the contract. Sedgwick on Stat. & Const. Law, 649-50; Cooley on Const. Lim, Secs. 365-7.

It is equally well settled that while it is within the scope of legislative authority to pass retrospective statutes generally, and courts will enforce them unless they violate the provision of the federal constitution in regard to ex post facto laws and the obligation of contracts, or interfere with vested rights of property, or are within some express prohibition contained in a State constitution, yet such provisions, as a general rule, are objectionable in principle and unjust in practice, and the judiciary will give all laws a prospective operation only, unless their language is so clear to the contrary as to admit of no other construction. Sedgwick on Stat. and Const. Law, 190, 193, 202.

The statute under consideration was clearly designed to operate prospectively upon causes of action ” already accrued, and this is conceded by counsel for appellee; but he contends the cause of action had not accrued because the note was not due when the act took effect.

But it will be noticed that the language of the saving clause preserves “ any rights or liabilities, or any causes of action that may have accrued,” etc.

In using the words “ any rights or liabilities ” as well as the words “ any causes of action,” the legislature must have designed to accomplish more than if the latter set of words only had been employed.

The word right is defined to be “a well founded claim.” 2 Bouv. Law, Die. 596.

The word liability is defined thus: “responsibility; the state of one who is bound in law and justice to do something which may be enforced by action.” Ib. 80.

The term, cause of action, signifies “ Matter for which an action may be brought.” 1 Bouv. Law Die. 291, where it is also said: “A cause of action is said to accrue to any person when that person first comes to a right to bring an action. There is, however, an obvious distinction between a cause of action and a right, though a cause of action generally confers a right. Thus Statutes of Limitation do not affect the cause of action but take away the right.”

The phraseology of the saving clause is somewhat peculiar.

The term accrued ” is not usually applied to the term “ right,” or “ liability.”

When an absolute contract is entered into, the rights and liabilities of the parties thereto are said to be fixed, and for a failure to comply with the provisions of the contract, the injured party has a cause of action which is said to have accrued when the breach occurs.

When the note in question was made, the payee had the right to receive the money when due and to bring suit within sixteen years thereafter, and the liability of the maker was correlative. These were fixed and determined by the contract and by the laws then in force, and while the legislature within the restrictions above stated had power to affect this right and liability, yet such is not presumed to have been intended unless the language of the act is clearly not susceptible of any other construction.

It is a familiar rule that some effect should be given to every phrase and expression in a law, so that all the language used shall be allowed a certain meaning and import when such a result is compatible with a fair and reasonable interpretation of the phrases and expressions employed.

We are of opinion the terms “rights and liabilities” and “causes of action ” as here used are not synonymous, and that it was the plain purpose of the legislature to leave wholly unaffected all contracts that had been executed prior to the time when the act became a law.

Such is the presumed design in all cases unless the contrary appears, and such is the construction always adopted by the courts when possible.

We therefore hold that the court erred in not sustaining the demurrer to the second plea, and the judgment must be reversed and the cause remanded.

¡Reversed and remanded.


text:
    Caspar Nolte v. Francis A. Von Gassy, use, etc.
    1. GtArrissment—-Promissory rotes.-—Where appellee, defendant in attachment, absconded, leaving in the custody of his clerk a safe containing, among other things, the promissory notes of appellant, then past due, and A, to whom appellee Was indebted, sued out a writ of attachment and gar-' nished the clerk, who opened the safe and delivered the notes to the sheriff, who levied upon_and held the same by virtue of his writ, and afterward B obtained a writ of attachment against appellee and garnished appellant. Held, that the steps taken were sufficient to give A a prior lien, primafacie, at least, upon the choses in action which were so surrendered by the clerk to the sheriff.
    2. When clerk or cashier mat be garnished.—While ordinarily the statutes of this State would not warrant a garnishment against the clerk or cashier of a banking or mercantile firm when such firm was engaged in the customary and usual transaction of business, yet where the business is wholly suspended by the absconding of the principal, who has never returned or been heard of, in such case'the terms used in Section 21 of Chapter 11, and Section 5 of Chapter 62, are broad enough to include the case of a clerk or cashier.
    Appeal from the County Court of Effingham county; the lion. Sylvester F. Gilmore, Judge, presiding.
    Opinion filed October 10, 1884.
    1. A writ of attachment from the County Court of Effing-ham county, Illinois, at the suit of William P. Surrelis against Francis A. Yon Gassy, dated April 22, 1884, and served April 23, 1884, on Caspar Holte, garnishee.
    2. Interrogatories to garnishee.
    3. Answer of garnishee disclosing that:
    On June 11, 1881, Charles H. Holte gave Yon Gassy his-note for $350, due fifteen days after that day, which note the garnishee signed as surety only; that payments have been made and leave due on the note $20 only.
    That on May 20, 1882, garnishee gave to Yon Gassy his note for $357, due September 20, 1882; that payments have been made, and leave due on the note $188.90 only.
    That on April 19, 1884, Yon Gassy absconded, has not returned and has never been heard of. He left the two notes in a package of notes in his bank safe, and attached to the package a slip of paper on which he wrote: “ These notes to be given to my assignee.”
    That on April 21, 1884, and before the service of the writ on garnishee, the sheriff of said county, by virtue of a writ of attachment from the circuit court of said county, at the suit of one Joseph Partridge against said Yon Gassy for over 09,000 debt, returnable to the October term, 1884, of said circuit court, garnisheed one Frank Ewers; that Ewers had been the clerk of Yon Gassy until April 19, 1884, when Yon Gassy absconded; that Ewers having knowledge of the combination of the safe, opened the same and delivered the notes to the sheriff, who took them and levied on them; that the notes are now in the sheriff’s custody by virtue of said writ and levy, and the garnishment of Ewers, and that the suit of Partridge against Yon Gassy is pending undetermined in said circuit court.
    4. Judgment of county court against garnishee for 0208.90.
    Hr. John C. White, for appellant;
    that the notes were property, cited 2 Blackstone’s Com. 388, 397; Herman on Executions, § 115; Adams v. Hackett, 7 Cal. 203; Davis v. Mitchell, 34 Cal. 88; Allison v. King, 21 Ia. 304; Harrison v. Willis, 7 Heisk. 35.
    The notes are subject to levy and sale under the writ of attachment: Drake on Attachment, §§ 7, 244c, 247; B. S. 1874. Ch. 11, §§ 1, 8, 36; Ch. 62, §§ 5, 20, 23; Davis v. Mitchell, 34 Cal. 88; Brown v. Anderson, 4 Martin, 416; Herman on Executions, §§ 123, 124; Collier v. Stanbrough, 6 Howard, 21; Freeman on Executions, § 112.
    If not the subject of levy and sale, still the notes in the possession or power of Ewers were the subject of garnishment and were held by the service of the writ on him in the suit of Partridge: R. S. 1874, Ch. 11, § 21; Ch. 62, § 20; C. P. R. R. Co. v. Sammons, 27 Ala. 380; First Nat. Bank v. D. & St. P. R. R. Co., 45 Ia. 127; Ballston Spa Bk. v. M. Bk., 18 Wis. 493; Everdell v. S. & F. D. L. R. R. Co., 41 Wis. 395; Freeman on Executions, § 161: Drake on Attachment, § 479.
    Mr. Frank W. Blair, for appellee;
    that the agent is not liable as garnishee, cited Drake on Attachment, § 465a.
   Wall, J.

It appears that Yon Gassy, the defendant in attachment, absconded, leaving in the custody of Ewers, his clerk, a safe containing, among other things, the promissory notes of ISTolte, then past due.

Partridge sued out a writ of attachment and garnisheed Ewers, who opened the safe and delivered the notes to the sheriff, who levied upon and held the same by virtue of his writ.

Afterward Snrrells obtained a writ of attachment against Yon Gassy and garnisheed said ISTolte.

By the Attachment Act every species of property of the defendant embraced within the terms “lands, tenements, goods, chattels, rights, credits, moneys and effects ” may be readied and appropriated to the payment of the debt sued for. Secs. 1, 6, 8, Ch. 11 R. S.; and by Sec. 21 of the same chapter, when the sheriff or other officer is unable to find sufficient “property” he shall summon as garnishees the persons mentioned as such in the writ, “and all other persons in his county whom the creditor shall designate as having any property, effects, dioses in action or credits in their possession or power belonging to the defendant, or who are in anywise indebted to the defendant.”

By chapter 62, entitled Garnishment, the mode of proceeding after the garnishee is summoned is provided.

The garnishee must answer touching the matters in his possession, custody or charge, belonging to defendant; adverse claimants may be heard, and the court being fully advised will make such, order as may be necessary to protect the rights of all concerned; but no final judgment can be rendered against the garnishee until the plaintiff shall have recovered a judgment against the defendant in attachment. Section 20 of this chapter provides that “When any garnishee has any goods, chattels, choses in action or effects other than money, belonging to the defendant or which he is bound to deliver to him, he shall deliver the same, or so much thereof as may be necessary, to the officer who shall hold the execution in favor of the plaintiff in the attachment suit or judgment, which shall be sold by the officer and the proceeds applied and accounted for in the same manner as other goods and chattels taken on execution.”

Without stopping to determine whether the action of tiie clerk, Ewers, in delivering the note to the officer when garnished was premature, and whether he should have waited until there was an adjudication of the principal question as to the claim of the plaintiff against the defendant in attachment, and the secondary question whether the effects in the hands of the garnishee should be subjected to the payment of that claim, we think the steps taken were sufficient to give to Partridge a prior lien aprima facie, at least upon the dioses in action which were by Ewers so surrendered to the sheriff.

If Partridge succeeded in his proceedings the result would be to subject these dioses in action to the payment of his demand and the legal effect would be to transfer the ownership of them from Yon Grassy to some other person who might acquire the same under these proceedings; in other words a statutory assignment would occur, and the maker of the notes would be bound to pay them to the person to whom they were thus assigned.

However, when such a state of facts appeared, the maker would have a right to insist that he should not be made subject to a later garnishment until the former proceeding was' disposed of in such manner as to relieve him from its operation.

But it is urged that the clerk, Ewers, was not properly garnisheed for the reason that the statute contemplates a proceeding against tim'd persons, that is, persons who do not stand in such relation to the defendant that their garnishment is in fact but the garnishment of the defendant himself.

In support of this position, Drake on Attachment is cited, Sec. 465a. This is the text, but the authorities referred to show that there is serious conflict in the adjudications upon the question.

It is obvious that as the whole subject is purely statutory, the decisions of the various States can furnish but little aid in the premises, except in cases where the statute is similar to the one under consideration.

It is also obvious that ordinarily the statute of this State would not warrant a garnishment against the clerk or cashier of a banking or mercantile firm when such firm was engaged in the customary and usual transaction of business; but the case alleged at bar, is, that Von Gassy had absconded, had not returned, and had never been heard of.

Such a state of facts of course implies a total suspension of the business relations existing between him and his clerk.

By Sec. 21 of Ch. 11, the garnishment will reach any of the matters designated which may be in the “ possession or power” of the garnishee, and by Sec. 5, Ch. 62, the garnishee must make answer touching all the matters referred to in his “ possession, custody or charge.”

These terms are certainly broad enough to include the case of a clerk or [cashier, and while it might well be contended that in ordinary cases where business is being -conducted in the usual way, such clerk or cashier, if within the letter is not within the spirit of the law, yet in the case before us, where the business is wholly suspended by the absconding of the principal, who has never returned or been heard of, we think he is within both the letter and the spirit of the law.

It is apparent that a different construction might lead to an evasion of the statute and might enable an absconding and fraudulent debtor to successfully baffle his creditors and set the law at defiance.

As Was said by the court in the case of 1st Nat. Bank, etc., v. The D. & St. P. R. R. Co., 45 Iowa Rep, 128, “ the fallacy of appellee’s argument is in placing the duty of the garnishee to his principal above his duty to the mandate of the law.” See also C. P. R. Co. v. Sammons, 27 Ala. 380; B. S. Bk. v. Marine Bk., 18 Wis. 490; Everdell v. S. & C. R. R. Co,, 41 Ibid, 395.

We are therefore of opinion that the judgment of the court below Was erroneous, and it is reversed and the Cause remanded.

Beversed and remanded.


author: Per Ccfriam.

text:
    George W. Utter et al. v. E. S. Jaffray et al.
    Practice.—Where by mistake in an amended declaration the ad damnum was laid out at a less sum than the amount claimed in the affidavit to hold to bail, the process of capias issued therein, and the original declaration, and by consent there was a trial by the court below and judgment was given for the plaintiffs for the sum claimed in the affidavit to hold to bail, and no exception was then or at any time interposed by the defendants. Held, that under the liberal and enlightened practice now prevailing the judgment should not be reversed for this cause. The rpotion in this court to amend will be granted.
    Error to the Circuit Court of Fayette county; the Hon. Jesse J. Phillips, Judge, presiding.
    Opinion filed October 10, 1884.
    Messrs. Bell & Green, for plaintiffs in error;
    that where the judgment is for more damages than are laid in the ail damnum, it will he reversed on error, cited Oakes v. Ward, 19 Ill. 46; Kelley v. Nat. Bk., 64 Ill. 541; Brown v. Smith, 24 Ill. 196; Walcott v. Holcomb, 24 Ill. 331; Altes v. Hinckler, 36 Ill. 275.
    Messrs. Asi-ioraft & Steilman, for defendants in error;
    that where a cause is tried by the court by consent of parties, without a jury, the finding of the court can not be questioned on appeal or error, unless the record shows that exceptions were taken to the decision of the court, or that a motion was made for a new trial and overruled, and the decision of the court excepted to, cited Duncan v. Chandler, 5 Bradwell, 499; Hartford Fire Ins. Co. v. City of Paris, 8 Bradwell, 181; Parsons v. Evans, 17 Ill. 238; Sherman v. Skinner, 83 Ill. 584; D. M. Force Mfg. Co. v. Horton, 74 Ill. 310; Dickhut v. Durrell, 11 Ill. 72; Gibbons v. Johnson, 3 Scam., 63; Reichwald v. Gaylord, 73 Ill. 503; R. S. Ch. 110, § 60; Bowden v. Bowden, 75 Ill. 111.

      Where the objection is one that might have been obviated by amendment if it had been seasonably made in the court below, it can not be urged for the first time in this court: Tug Boat v. Waldron, 62 Ill. 221; Zeigler v. Cox, 63 Ill. 48; Thompson v. Hoagland, 65 Ill. 310; Pugh v. Calloway, 10 Ohio, 488; Rivereau v. St. Ament, 3 Ia. 118; Crosson v. White, 19 Ia. 109; Haverhill v. Cronin, 4 Allen (Hass.), 141; Robinson v. English, 34 Pa. 324; Penn. etc., Co. v. Neel, 54 Pa. 9.
   Per Ccfriam.

The only error assigned is that the judgment exceeds the ad damnum laid in the declaration.

On examination of the record originally filed, we find it is not made up in accordance with the rule (8) of this court, which requires first, a copy of the process; second, the pleadings of the parties, etc.

The record begins with an order of the court below granting leave to plaintiffs to amend their declaration. The defendants in error have entered a motion for leave in this court to amend the amended declaration by increasing the ad damnum,, and with the motion have filed a certified copy of the affidavit to hold to bail, filed at the commencement of the suit, the process of capias issued thereon and the original declaration, from all which it seems clear that it must have been by inadvertence merely that the ad damnum in the amended declaration was laid out ata sum less than the amountclaimed in the affidavit to hold to bail.

Defendants in error suggest that by virtue of clause 10, Sec. 6. Ch. 7, E. S., they may have leave to amend their declaration in this court. We are not perfectly clear that the case is within that provision, but we will permit the transcript of the record filed with the motion to be filed as a part of the record in the cause and will treat it accordingly.

The record being so completed the question arises whether the judgment should be reversed for the error assigned.

Formerly such would have been the result, nor could the amendment necessary have been made in the circuit court except upon terms of payment of cost, setting aside the verdict and granting a new trial. But by section 24 of the Practice Act as now in force, the utmost liberality as to amendments is allowed for the furtherance of justice and in avoidance of the evils and hardships constantly occurring under the old practice, care being taken always to permit no undue advantage to be secured thereby and to impose such terms as may be reasonable.

Under this section it can not be doubted that had the attention of the court been called to it, the necessary leave to amend would have been granted as a matter of course. It appears from the record that the case was submitted to the court without a jury by consent, and that the court, after hearing the evidence and arguments, gave its judgment in favor of the plaintiffs for the sum claimed in tiie affidavit to hold to bail, which was within the ad dam.mmi in the original declaration, and that no exception was then or at any time interposed by the defendants. In the case of Bowden v. Bowden, 75 Ill. 111, where the action being debt, the judgment was in damages, the Supreme Court refused to reverse notwithstanding the repeated rulings of the court, and say that, “In view of the course of legislation upon kindred topics, we have arrived at the conclusion that for mere tecl - nical errors like this we will not reverse, unless by some motion for new trial, or in arrest of judgment, or some other proper motion, the question shall be raised inffhe court below. ’

In I. & St. L. R. R. Co. v. Estes, 96 Ill. 473, there was a substantial variance between the allegations and proof on an important point, and there was wholly wanting a material allegation which was necessary to admit certain proof that was heard; but though there was objection generally to the proof the special ground was not pointed out and the court say: “We have heretofore held that an objection of this

kind, which, if specifically pointed out in the circuit court mav be at once obviated, can be of no avail unless the attention of the court is specially called to the point. A case ought not to be reversed in this court on a question which the circuit court did not in fact decide and which if presented to that court might have been at once obviated.” To the same effect is St. Clair Co. B. S. v. Fietsam, 97 Ill. 474.

The error here complained of can not have operated prejudicially to the plaintiffs in error. They were apprised by the affidavit for bail as to the exact sum demanded by plaintiffs below, and the fact that they made no objection to the judgment of the court is conclusive that they had not observed the mistake in the amended declaration, or if they had, they refrained from pointing it out, with the design of gaining the advantage now sought.

Under the more liberal and enlightened practice now -prevailing, we think the judgment should not be reversed for this cause, and to quote again from Bowden v. Bowden, supra, “ if a party will be silent on the occurrence of such a mistake, one that would be corrected on the instant should the attention of the court be called to it, one that in no wise affects the merits of the controversy, he ought to be foreclosed of his rights to assign it for error in this court.”

The judgment will be affirmed.

Judgment affirmed.